§ 1821. Insurance Funds
(a)
Deposit insurance
(1)
Insured amounts payable
(A)
In general
The Corporation shall insure the deposits of all insured depository institutions as provided in this chapter.
(B)
Net amount of insured deposit
The net amount due to any depositor at an insured depository institution shall not exceed the standard maximum deposit insurance amount as determined in accordance with subparagraphs (C), (D), (E) and (F) and paragraph (3).
(C)
Aggregation of deposits
For the purpose of determining the net amount due to any depositor under subparagraph (B), the Corporation shall aggregate the amounts of all deposits in the insured depository institution which are maintained by a depositor in the same capacity and the same right for the benefit of the depositor either in the name of the depositor or in the name of any other person, other than any amount in a trust fund described in paragraph (1) or (2) of section
1817
(i) of this title or any funds described in section
1817
(i)(3) of this title.
(D)
Coverage for certain employee benefit plan deposits
(i)
Pass-through insurance
The Corporation shall provide pass-through deposit insurance for the deposits of any employee benefit plan.
(ii)
Prohibition on acceptance of benefit plan deposits
An insured depository institution that is not well capitalized or adequately capitalized may not accept employee benefit plan deposits.
(iii)
Definitions
For purposes of this subparagraph, the following definitions shall apply:
(I)
Capital standards
The terms “well capitalized” and “adequately capitalized” have the same meanings as in section
1831o of this title.
(E)
Standard maximum deposit insurance amount defined
For purposes of this chapter, the term “standard maximum deposit insurance amount” means $100,000, adjusted as provided under subparagraph (F) after March 31, 2010.
(F)
Inflation adjustment
(i)
In general
By April 1 of 2010, and the 1st day of each subsequent 5-year period, the Board of Directors and the National Credit Union Administration Board shall jointly consider the factors set forth under clause (v), and, upon determining that an inflation adjustment is appropriate, shall jointly prescribe the amount by which the standard maximum deposit insurance amount and the standard maximum share insurance amount (as defined in section
1787
(k) of this title) applicable to any depositor at an insured depository institution shall be increased by calculating the product of—
(II)
the ratio of the published annual value of the Personal Consumption Expenditures Chain-Type Price Index (or any successor index thereto), published by the Department of Commerce, for the calendar year preceding the year in which the adjustment is calculated under this clause, to the published annual value of such index for the calendar year preceding April 1, 2006.
The values used in the calculation under subclause (II) shall be, as of the date of the calculation, the values most recently published by the Department of Commerce.
(ii)
Rounding
If the amount determined under clause (ii) for any period is not a multiple of $10,000, the amount so determined shall be rounded down to the nearest $10,000.
(iii)
Publication and report to the Congress
Not later than April 5 of any calendar year in which an adjustment is required to be calculated under clause (i) to the standard maximum deposit insurance amount and the standard maximum share insurance amount under such clause, the Board of Directors and the National Credit Union Administration Board shall—
(iv)
6-month implementation period
Unless an Act of Congress enacted before July 1 of the calendar year in which an adjustment is required to be calculated under clause (i) provides otherwise, the increase in the standard maximum deposit insurance amount and the standard maximum share insurance amount shall take effect on January 1 of the year immediately succeeding such calendar year.
(v)
Inflation adjustment consideration
In making any determination under clause (i) to increase the standard maximum deposit insurance amount and the standard maximum share insurance amount, the Board of Directors and the National Credit Union Administration Board shall jointly consider—
(2)
Government depositors
(A)
In general
Notwithstanding any limitation in this chapter or in any other provision of law relating to the amount of deposit insurance available to any 1 depositor—
(B)
Government depositor
In this paragraph, the term “government depositor” means a depositor that is—
(i)
an officer, employee, or agent of the United States having official custody of public funds and lawfully investing or depositing the same in time and savings deposits in an insured depository institution;
(ii)
an officer, employee, or agent of any State of the United States, or of any county, municipality, or political subdivision thereof having official custody of public funds and lawfully investing or depositing the same in time and savings deposits in an insured depository institution in such State;
(iii)
an officer, employee, or agent of the District of Columbia having official custody of public funds and lawfully investing or depositing the same in time and savings deposits in an insured depository institution in the District of Columbia;
(iv)
an officer, employee, or agent of the Commonwealth of Puerto Rico, of the Virgin Islands, of American Samoa, of the Trust Territory of the Pacific Islands, or of Guam, or of any county, municipality, or political subdivision thereof having official custody of public funds and lawfully investing or depositing the same in time and savings deposits in an insured depository institution in the Commonwealth of Puerto Rico, the Virgin Islands, American Samoa, the Trust Territory of the Pacific Islands, or Guam, respectively; or
(C)
Authority to limit deposits
The Corporation may limit the aggregate amount of funds that may be invested or deposited in deposits in any insured depository institution by any government depositor on the basis of the size of any such bank [1] in terms of its assets: Provided, however, such limitation may be exceeded by the pledging of acceptable securities to the government depositor when and where required.
(3)
Certain retirement accounts
(A)
In general
Notwithstanding any limitation in this chapter relating to the amount of deposit insurance available for the account of any 1 depositor, deposits in an insured depository institution made in connection with—
(ii)
subject to the exception contained in paragraph (1)(D)(ii), any eligible deferred compensation plan described in section
457 of title
26; and
(iii)
any individual account plan defined in section
1002
(34) of title
29, and any plan described in section
401
(d) of title
26, to the extent that participants and beneficiaries under such plan have the right to direct the investment of assets held in individual accounts maintained on their behalf by the plan,
shall be aggregated and insured in an amount not to exceed $250,000 (which amount shall be subject to inflation adjustments as provided in paragraph (1)(F), except that $250,000 shall be substituted for $100,000 wherever such term appears in such paragraph) per participant per insured depository institution.
(B)
Amounts taken into account
For purposes of subparagraph (A), the amount aggregated for insurance coverage under this paragraph shall consist of the present vested and ascertainable interest of each participant under the plan, excluding any remainder interest created by, or as a result of, the plan.
(4)
Deposit Insurance Fund
(B)
Uses
The Deposit Insurance Fund shall be available to the Corporation for use with respect to insured depository institutions the deposits of which are insured by the Deposit Insurance Fund.
(C)
Limitation on use
Notwithstanding any provision of law other than section
1823
(c)(4)(G) of this title, the Deposit Insurance Fund shall not be used in any manner to benefit any shareholder or affiliate (other than an insured depository institution that receives assistance in accordance with the provisions of this chapter) of—
(i)
any insured depository institution for which the Corporation has been appointed conservator or receiver, in connection with any type of resolution by the Corporation;
(ii)
any other insured depository institution in default or in danger of default, in connection with any type of resolution by the Corporation; or
(iii)
any insured depository institution, in connection with the provision of assistance under this section or section
1823 of this title with respect to such institution, except that this clause shall not prohibit any assistance to any insured depository institution that is not in default, or that is not in danger of default, that is acquiring (as defined in section
1823
(f)(8)(B) of this title) another insured depository institution.
(5)
Certain investment contracts not treated as insured deposits
(A)
In general
A liability of an insured depository institution shall not be treated as an insured deposit if the liability arises under any insured depository institution investment contract between any insured depository institution and any employee benefit plan which expressly permits benefit-responsive withdrawals or transfers.
(B)
Definitions
For purposes of subparagraph (A)—
(i)
Benefit-responsive withdrawals or transfers
The term “benefit-responsive withdrawals or transfers” means any withdrawal or transfer of funds (consisting of any portion of the principal and any interest credited at a rate guaranteed by the insured depository institution investment contract) during the period in which any guaranteed rate is in effect, without substantial penalty or adjustment, to pay benefits provided by the employee benefit plan or to permit a plan participant or beneficiary to redirect the investment of his or her account balance.
(b)
Liquidation as closing of depository institution
For the purposes of this chapter an insured depository institution shall be deemed to have been closed on account of inability to meet the demands of its depositors in any case in which it has been closed for the purpose of liquidation without adequate provision being made for payment of its depositors.
(c)
Appointment of Corporation as conservator or receiver
(1)
In general
Notwithstanding any other provision of Federal law, the law of any State, or the constitution of any State, the Corporation may accept appointment and act as conservator or receiver for any insured depository institution upon appointment in the manner provided in paragraph (2) or (3).
(2)
Federal depository institutions
(A)
Appointment
(i)
Conservator
The Corporation may, at the discretion of the supervisory authority, be appointed conservator of any insured Federal depository institution and the Corporation may accept such appointment.
(ii)
Receiver
The Corporation shall be appointed receiver, and shall accept such appointment, whenever a receiver is appointed for the purpose of liquidation or winding up the affairs of an insured Federal depository institution by the appropriate Federal banking agency, notwithstanding any other provision of Federal law (other than section
1441a of this title).
(B)
Additional powers
In addition to and not in derogation of the powers conferred and the duties imposed by this section on the Corporation as conservator or receiver, the Corporation, to the extent not inconsistent with such powers and duties, shall have any other power conferred on or any duty (which is related to the exercise of such power) imposed on a conservator or receiver for any Federal depository institution under any other provision of law.
(C)
Corporation not subject to any other agency
When acting as conservator or receiver pursuant to an appointment described in subparagraph (A), the Corporation shall not be subject to the direction or supervision of any other agency or department of the United States or any State in the exercise of the Corporation’s rights, powers, and privileges.
(3)
Insured State depository institutions
(A)
Appointment by appropriate State supervisor
Whenever the authority having supervision of any insured State depository institution appoints a conservator or receiver for such institution and tenders appointment to the Corporation, the Corporation may accept such appointment.
(B)
Additional powers
In addition to the powers conferred and the duties related to the exercise of such powers imposed by State law on any conservator or receiver appointed under the law of such State for an insured State depository institution, the Corporation, as conservator or receiver pursuant to an appointment described in subparagraph (A), shall have the powers conferred and the duties imposed by this section on the Corporation as conservator or receiver.
(C)
Corporation not subject to any other agency
When acting as conservator or receiver pursuant to an appointment described in subparagraph (A), the Corporation shall not be subject to the direction or supervision of any other agency or department of the United States or any State in the exercise of its rights, powers, and privileges.
(D)
Depository institution in conservatorship subject to banking agency supervision
Notwithstanding subparagraph (C), any insured State depository institution for which the Corporation has been appointed conservator shall remain subject to the supervision of the appropriate State bank or savings association supervisor.
(4)
Appointment of Corporation by the Corporation
Except as otherwise provided in section
1441a of this title and notwithstanding any other provision of Federal law, the law of any State, or the constitution of any State, the Corporation may appoint itself as sole conservator or receiver of any insured State depository institution if—
(A)
the Corporation determines—
(5)
Grounds for appointing conservator or receiver
The grounds for appointing a conservator or receiver (which may be the Corporation) for any insured depository institution are as follows:
(A)
Assets insufficient for obligations.—
The institution’s assets are less than the institution’s obligations to its creditors and others, including members of the institution.
(D)
Cease and desist orders.—
Any willful violation of a cease-and-desist order which has become final.
(E)
Concealment.—
Any concealment of the institution’s books, papers, records, or assets, or any refusal to submit the institution’s books, papers, records, or affairs for inspection to any examiner or to any lawful agent of the appropriate Federal banking agency or State bank or savings association supervisor.
(F)
Inability to meet obligations.—
The institution is likely to be unable to pay its obligations or meet its depositors’ demands in the normal course of business.
(G)
Losses.—
The institution has incurred or is likely to incur losses that will deplete all or substantially all of its capital, and there is no reasonable prospect for the institution to become adequately capitalized (as defined in section
1831o
(b) of this title) without Federal assistance.
(H)
Violations of law.—
Any violation of any law or regulation, or any unsafe or unsound practice or condition that is likely to—
(I)
Consent.—
The institution, by resolution of its board of directors or its shareholders or members, consents to the appointment.
(K)
Undercapitalization.—
The institution is undercapitalized (as defined in section
1831o
(b) of this title), and—
(ii)
fails to become adequately capitalized when required to do so under section
1831o
(f)(2)(A) of this title;
(6)
Appointment by Director of the Office of Thrift Supervision
(A)
Conservator
The Corporation or the Resolution Trust Corporation may, at the discretion of the Director of the Office of Thrift Supervision, be appointed conservator and the Corporation may accept any such appointment.
(B)
Receiver
Whenever the Director of the Office of Thrift Supervision appoints a receiver under the provisions of subparagraph (A) or (C) of section
1464
(d)(2) of this title for the purpose of liquidation or winding up any savings association’s affairs—
(i)
before such date as is determined by the Chairperson of the Thrift Depositor Protection Oversight Board under section
1441a
(b)(3)(A)(ii) of this title, the Resolution Trust Corporation shall be appointed;
(ii)
on or after the date determined by the Chairperson of the Thrift Depositor Protection Oversight Board under section
1441a
(b)(3)(A)(ii) of this title, the Resolution Trust Corporation shall be appointed if the Resolution Trust Corporation had been placed in control of the depository institution at any time before such date; and
(iii)
on or after the date determined by the Chairperson of the Thrift Depositor Protection Oversight Board under section
1441a
(b)(3)(A)(ii) of this title, the Corporation shall be appointed unless the Resolution Trust Corporation is required to be appointed under clause (ii).
(7)
Judicial review
If the Corporation is appointed (including the appointment of the Corporation as receiver by the Board of Directors) as conservator or receiver of a depository institution under paragraph (4), (9), or (10), the depository institution may, not later than 30 days thereafter, bring an action in the United States district court for the judicial district in which the home office of such depository institution is located, or in the United States District Court for the District of Columbia, for an order requiring the Corporation to be removed as the conservator or receiver (regardless of how such appointment was made), and the court shall, upon the merits, dismiss such action or direct the Corporation to be removed as the conservator or receiver.
(8)
Replacement of conservator of State depository institution
(A)
In general
In the case of any insured State depository institution for which the Corporation appointed itself as conservator pursuant to paragraph (4), the Corporation may, without any requirement of notice, hearing, or other action, replace itself as conservator with itself as receiver of such institution.
(9)
Appropriate Federal banking agency may appoint Corporation as conservator or receiver for insured State depository institution to carry out section
1831o
(A)
In general
The appropriate Federal banking agency may appoint the Corporation as sole receiver (or, subject to paragraph (11), sole conservator) of any insured State depository institution, after consultation with the appropriate State supervisor, if the appropriate Federal banking agency determines that—
(10)
Corporation may appoint itself as conservator or receiver for insured depository institution to prevent loss to Deposit Insurance Fund
The Board of Directors may appoint the Corporation as sole conservator or receiver of an insured depository institution, after consultation with the appropriate Federal banking agency and the appropriate State supervisor (if any), if the Board of Directors determines that—
(11)
Appropriate Federal banking agency shall not appoint conservator under certain provisions without giving Corporation opportunity to appoint receiver
The appropriate Federal banking agency shall not appoint a conservator for an insured depository institution under subparagraph (K) or (L) of paragraph (5) without the Corporation’s consent unless the agency has given the Corporation 48 hours notice of the agency’s intention to appoint the conservator and the grounds for the appointment.
(12)
Directors not liable for acquiescing in appointment of conservator or receiver
The members of the board of directors of an insured depository institution shall not be liable to the institution’s shareholders or creditors for acquiescing in or consenting in good faith to—
(13)
Additional powers
In any case in which the Corporation is appointed conservator or receiver under paragraph (4), (6), (9), or (10) for any insured State depository institution—
(A)
this section shall apply to the Corporation as conservator or receiver in the same manner and to the same extent as if that institution were a Federal depository institution for which the Corporation had been appointed conservator or receiver; and
(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—
(B)
Operate the institution
The Corporation may (subject to the provisions of section
1831q of this title), 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;
(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.
(E)
Additional powers as receiver
The Corporation may (subject to the provisions of section
1831q of this title), 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
(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) of this section) 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 chapter.
(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
1818
(n) of this title, 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
1441a
(b)(4) [2] of this title, only by, or with the written approval of, the Board of Directors of such Corporation or their designees).
(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 chapter and such incidental powers as shall be necessary to carry out such powers; and
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—