12 U.S.C. § 1787 — Payment of insurance

Page 919 TITLE 12—BANKS AND BANKING § 1787 EFFECTIVE DATE OF 2010 AMENDMENT Amendment by Pub. L. 111–203 effective on the trans- fer date, see section 351 of Pub. L. 111–203, set out as a note under section 906 of Title 2, The Congress. EFFECTIVE DATE OF 2004 AMENDMENT Pub. L. 108–458, title VI, § 6303(d), Dec. 17, 2004, 118 Stat. 3754, provided that: ‘‘Notwithstanding any other effective date established pursuant to this Act [see Ta- bles for classification], subsection (a) shall become ef- fective on the date of enactment of this Act [Dec. 17, 2004], and the amendments made by subsections (b) and (c) [amending this section and section 1820 of this title] shall become effective at the end of the 12-month pe- riod beginning on the date of enactment of this Act [Dec. 17, 2004], whether or not final regulations are issued in accordance with the amendments made by this section [amending this section and section 1820 of this title] as of that date of enactment.’’ EFFECTIVE DATE OF 1992 AMENDMENT Pub. L. 102–550, title XV, § 1501(c), Oct. 28, 1992, 106 Stat. 4045, provided that: ‘‘The amendments made by this section [amending this section and section 1821 of this title] shall take effect on December 20, 1992.’’ EFFECTIVE DATE OF 1989 AMENDMENT Pub. L. 101–73, title IX, § 903(e), Aug. 9, 1989, 103 Stat. 457, provided that: ‘‘The amendments made by this sec- tion [amending this section and section 1818 of this title] shall apply with respect to violations committed and activities engaged in after the date of the enact- ment of this Act [Aug. 9, 1989].’’ EFFECTIVE DATE OF 1978 AMENDMENT Amendment by sections 107(a)(4), (c)(4), (d)(4), and 111(d)(1)–(3) of Pub. L. 95–630 effective upon expiration of 120 days after Nov. 10, 1978, see section 2101 of Pub. L. 95–630, set out as an Effective Date note under sec- tion 375b of this title. Amendment by section 107(e)(4) of Pub. L. 95–630 ap- plicable to violations occurring or continuing after Nov. 10, 1978, see section 109 of Pub. L. 95–630, set out as a note under section 93 of this title. Amendment by section 502(b) of Pub. L. 95–630 effec- tive on expiration of 120 days after Nov. 10, 1978, and transitional provisions, see section 509 of Pub. L. 95–630, set out as a note under section 1752 of this title. EFFECTIVE DATE OF REGULATIONS PRESCRIBED UNDER 1986 AMENDMENT The regulations required to be prescribed under amendment by Pub. L. 99–570 effective at end of 3- month period beginning on October 27, 1986, see section 1364(e) of Pub. L. 99–570, set out as a note under section 1464 of this title. EXTENSION OF EMERGENCY ACQUISITION AND NET WORTH GUARANTEE PROVISIONS OF PUB. L. 97–320 No amendment made by section 141(a) of Pub. L. 97–320, set out as a note under section 1464 of this title, as in effect before Aug. 10, 1987, to any other provision of law to be deemed to have taken effect before such date and any such provision of law to be in effect as if no such amendment had been made before such date, see section 509(c) of Pub. L. 100–86, set out as a note under section 1464 of this title. No amendment made by section 141(a) of Pub. L. 97–320, set out as a note under section 1464 of this title, as in effect on the day before Oct. 8, 1986, to any other provision of law to be deemed to have taken effect be- fore such date and any such provision of law to be in ef- fect as if no such amendment had taken effect before such date, see section 1(c) of Pub. L. 99–452, set out as a note under section 1464 of this title. Section 141(a) of Pub. L. 97–320, set out as a note under section 1464 of this title, as in effect on the day after Aug. 27, 1986, applicable as if included in Pub. L. 97–320 on Oct. 15, 1982, with no amendment made by such section to any other provision of law to be deemed to have taken effect before Aug. 27, 1986, and any such provision of law to be in effect as if no such amendment had taken effect before Aug. 27, 1986, see section 1(c) of Pub. L. 99–400, set out as a note under section 1464 of this title. § 1786a. Omitted Editorial Notes CODIFICATION Section, act June 26, 1934, ch. 750, title II, § 206A, as added Pub. L. 105–164, § 3(b), Mar. 20, 1998, 112 Stat. 35; amended Pub. L. 109–351, title VII, § 726(20), Oct. 13, 2006, 120 Stat. 2003, which related to regulation and examina- tion of credit union organizations and service providers by the National Credit Union Administration Board, ceased to be effective as of Dec. 31, 2001, pursuant to subsec. (f) of the section. § 1787. Payment of insurance (a) Liquidation by Board; bond; appointment of agent; fees to be fixed by Board (1)(A) Upon its finding that a Federal credit union insured under this subchapter is bankrupt or insolvent, the Board shall close such credit union for liquidation and appoint itself liqui- dating agent therefor. (B) Not later than 10 days after the date on which the Board closes a credit union for liq- uidation pursuant to paragraph (1), or accepts appointment as liquidating agent pursuant to subsection (b), such insured credit union may apply to the United States district court for the judicial district in which the principal office of such insured credit union is located or the United States District Court for the District of Columbia, for an order requiring the Board to show cause why it should not be prohibited from continuing such liquidation. Except as other- wise provided in this subparagraph, no court may take any action for or toward the removal of any liquidating agent or, except at the in- stance of the Board, restrain or affect the exer- cise of powers or functions of a liquidating agent. (2) Notwithstanding any other provision of law, the Board as liquidating agent of a closed Federal credit union insured under this sub- chapter shall not be required to furnish bond and shall have the right to appoint an agent or agents to assist it in its duties as such liqui- dating agent. All fees, compensation, and ex- penses of liquidation and administration thereof shall be fixed by the Board and may be paid by them out of funds coming into its possession as such liquidating agent. (3) LIQUIDATION TO FACILITATE PROMPT CORREC- TIVE ACTION.—The Board may close any credit union for liquidation, and appoint itself or an- other (including, in the case of a State-char- tered insured credit union, the State official having jurisdiction over the credit union) as liq- uidating agent of that credit union, if— (A) the Board determines that— (i) the credit union is significantly under- capitalized, as defined in section 1790d of this title, and has no reasonable prospect of becoming adequately capitalized, as defined in section 1790d of this title; or Page 920 TITLE 12—BANKS AND BANKING § 1787 (ii) the credit union is critically under- capitalized, as defined in section 1790d of this title; and (B) in the case of a State-chartered insured credit union, the Board has complied with sec- tion 1790d(l) of this title. (b) Powers and duties of Board as conservator or liquidating agent (1) Rulemaking authority of Board The Board may prescribe such regulations as the Board determines to be appropriate re- garding the conduct of the Board as conser- vator or liquidating agent. (2) General powers (A) Successor to credit union The Board shall, as conservator or liqui- dating agent, and by operation of law, suc- ceed to— (i) all rights, titles, powers, and privi- leges of the credit union, and of any mem- ber, accountholder, officer, or director of such credit union with respect to the cred- it union and the assets of the credit union; and (ii) title to the books, records, and assets of any previous conservator or other legal custodian of such credit union. (B) Operate the credit union The Board may, as conservator or liqui- dating agent— (i) take over the assets of and operate the credit union with all the powers of the members or shareholders, the directors, and the officers of the credit union and shall be authorized to conduct all business of the credit union; (ii) collect all obligations and money due the credit union; (iii) perform all functions of the credit union in the name of the credit union which is consistent with the appointment as conservator or liquidating agent; and (iv) preserve and conserve the assets and property of such credit union. (C) Functions of credit union’s officers, direc- tors, and shareholders The Board may, by regulation or order, provide for the exercise of any function by any member or stockholder, director, or offi- cer of any credit union for which the Board has been appointed conservator or liqui- dating agent. (D) Powers as conservator The Board may, as conservator, take such action as may be— (i) necessary to put the credit union in a sound and solvent condition; and (ii) appropriate to carry on the business of the credit union and preserve and con- serve the assets and property of the credit union. (E) Additional powers as liquidating agent The Board may, as liquidating agent, place the credit union in liquidation and proceed to realize upon the assets of the credit union, having due regard to the conditions of credit in the locality. (F) Payment of valid obligations The Board, as conservator or liquidating agent, shall pay all valid obligations of the credit union in accordance with the prescrip- tions and limitations of this chapter. (G) Attachment of assets and injunctive relief Subject to subparagraph (H), any court of competent jurisdiction may, at the request of the Board (in the Board’s capacity as con- servator or liquidating agent for any insured credit union or in the Board’s corporate ca- pacity in the exercise of any authority under this section), issue an order in accordance with Rule 65 of the Federal Rules of Civil Procedure, including an order placing the as- sets of any person designated by the Board under the control of the court and appoint- ing a trustee to hold such assets. (H) Standards (i) Showing Rule 65 of the Federal Rules of Civil Pro- cedure shall apply with respect to any pro- ceeding under subparagraph (G) without regard to the requirement of such rule that the applicant show that the injury, loss, or damage is irreparable and imme- diate. (ii) State proceeding If, in the case of any proceeding in a State court, the court determines that rules of civil procedure available under the laws of such State provide substantially similar protections to such party’s right to due process as Rule 65 (as modified with respect to such proceeding by clause (i)), the relief sought by the Board pursuant to subparagraph (G) may be requested under the laws of such State. (I) Subpoena authority (i) In general The Board may, as conservator or liqui- dating agent and for purposes of carrying out any power, authority, or duty with re- spect to an insured credit union (including determining any claim against the credit union and determining and realizing upon any asset of any person in the course of collecting money due the credit union), ex- ercise any power established under section 1786(p) 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 A subpoena or subpoena duces tecum may be issued under clause (i) only by, or with the written approval of, the Board or their designees. (iii) Rule of construction This subsection shall not be construed as limiting any rights that the Board, in any capacity, might otherwise have under sec- tion 1786(p) of this title. (J) Incidental powers The Board may, as conservator or liqui- dating agent— Page 921 TITLE 12—BANKS AND BANKING § 1787 (i) exercise all powers and authorities specifically granted to conservators or liq- uidating agents, respectively, under this chapter and such incidental powers as shall be necessary to carry out such pow- ers; and (ii) take any action authorized by this chapter, which the Board determines is in the best in- terests of the credit union, its account hold- ers, or the Board. (K) Exemption from criminal prosecution The Administration shall be exempt from all prosecution by the United States or any State, county, municipality, or local author- ity for any criminal offense arising under Federal, State, county, municipal, or local law, which was allegedly committed by a credit union, or persons acting on behalf of a credit union, prior to the appointment of the Administration as liquidating agent. (3) Authority of liquidating agent to determine claims (A) In general The Board may, as liquidating agent, de- termine claims in accordance with the re- quirements of this subsection and regula- tions prescribed under paragraph (4). (B) Notice requirements The liquidating agent, in any case involv- ing the liquidation or winding up of the af- fairs of a closed credit union, shall— (i) promptly publish a notice to the cred- it union’s creditors to present their claims, together with proof, to the liqui- dating agent by a date specified in the no- tice which shall be not less than 90 days after the publication of such notice; and (ii) republish such notice approximately 1 month and 2 months, respectively, after the publication under clause (i). (C) Mailing required The liquidating agent shall mail a notice similar to the notice published under sub- paragraph (B)(i) at the time of such publica- tion to any creditor shown on the credit union’s books— (i) at the creditor’s last address appear- ing in such books; or (ii) upon discovery of the name and ad- dress of a claimant not appearing on the credit union’s books within 30 days after the discovery of such name and address. (4) Rulemaking authority relating to deter- mination of claims The Board may prescribe regulations regard- ing the allowance or disallowance of claims by the liquidating agent and providing for admin- istrative determination of claims and review of such determination. (5) Procedures for determination of claims (A) Determination period (i) In general Before the end of the 180-day period be- ginning on the date any claim against a credit union is filed with the Board as liq- uidating agent, the Board shall determine whether to allow or disallow the claim and shall notify the claimant of any deter- mination with respect to such claim. (ii) Extension of time The period described in clause (i) may be extended by a written agreement between the claimant and the Board. (iii) Mailing of notice sufficient The requirements of clause (i) shall be deemed to be satisfied if the notice of any determination with respect to any claim is mailed to the last address of the claimant which appears— (I) on the credit union’s books; (II) in the claim filed by the claimant; or (III) in documents submitted in proof of the claim. (iv) Contents of notice of disallowance If any claim filed under clause (i) is dis- allowed, the notice to the claimant shall contain— (I) a statement of each reason for the disallowance; and (II) the procedures available for ob- taining agency review of the determina- tion to disallow the claim or judicial de- termination of the claim. (B) Allowance of proven claims The liquidating agent shall allow any claim received on or before the date speci- fied in the notice published under paragraph (3)(B)(i) by the liquidating agent from any claimant which is proved to the satisfaction of the liquidating agent. (C) Disallowance of claims filed after end of filing period (i) In general Except as provided in clause (ii), claims filed after the date specified in the notice published under paragraph (3)(B)(i) shall be disallowed and such disallowance shall be final. (ii) Certain exceptions Clause (i) shall not apply with respect to any claim filed by any claimant after the date specified in the notice published under paragraph (3)(B)(i) and such claim may be considered by the liquidating agent if— (I) the claimant did not receive notice of the appointment of the liquidating agent in time to file such claim before such date; and (II) such claim is filed in time to per- mit payment of such claim. (D) Authority to disallow claims The liquidating agent may disallow any portion of any claim by a creditor or claim of security, preference, or priority which is not proved to the satisfaction of the liqui- dating agent. (E) No judicial review of determination pur- suant to subparagraph (D) No court may review the Board’s deter- mination pursuant to subparagraph (D) to disallow a claim. Page 922 TITLE 12—BANKS AND BANKING § 1787 (F) Legal effect of filing (i) Statute of limitation tolled For purposes of any applicable statute of limitations, the filing of a claim with the liquidating agent shall constitute a com- mencement of an action. (ii) No prejudice to other actions Subject to paragraph (12), the filing of a claim with the liquidating agent shall not prejudice any right of the claimant to con- tinue any action which was filed before the appointment of the liquidating agent. (6) Provision for agency review or judicial de- termination of claims (A) In general Before the end of the 60-day period begin- ning on the earlier of— (i) the end of the period described in paragraph (5)(A)(i) with respect to any claim against a credit union for which the Board is liquidating agent; or (ii) the date of any notice of disallow- ance of such claim pursuant to paragraph (5)(A)(i), the claimant may request administrative re- view of the claim in accordance with sub- paragraph (A) or (B) of paragraph (7) or file suit on such claim (or continue an action commenced before the appointment of the liquidating agent) in the district or terri- torial court of the United States for the dis- trict within which the credit union’s prin- cipal place of business is located or the United States District Court for the District of Columbia (and such court shall have juris- diction to hear such claim). (B) Statute of limitations If any claimant fails to— (i) request administrative review of any claim in accordance with subparagraph (A) or (B) of paragraph (7); or (ii) file suit on such claim (or continue an action commenced before the appoint- ment of the liquidating agent), before the end of the 60-day period described in subparagraph (A), the claim shall be deemed to be disallowed (other than any por- tion of such claim which was allowed by the liquidating agent) as of the end of such pe- riod, such disallowance shall be final, and the claimant shall have no further rights or remedies with respect to such claim. (7) Review of claims (A) Administrative hearing If any claimant requests review under this subparagraph in lieu of filing or continuing any action under paragraph (6) and the Board agrees to such request, the Board shall consider the claim after opportunity for a hearing on the record. The final deter- mination of the Board with respect to such claim shall be subject to judicial review under chapter 7 of title 5. (B) Other review procedures (i) In general The Board shall also establish such al- ternative dispute resolution processes as may be appropriate for the resolution of claims filed under paragraph (5)(A)(i). (ii) Criteria In establishing alternative dispute reso- lution processes, the Board shall strive for procedures which are expeditious, fair, independent, and low cost. (iii) Voluntary binding or nonbinding pro- cedures The Board may establish both binding and nonbinding processes, which may be conducted by any government or private party, but all parties, including the claim- ant and the Board, must agree to the use of the process in a particular case. (iv) Consideration of incentives The Board shall seek to develop incen- tives for claimants to participate in the al- ternative dispute resolution process. (8) Expedited determination of claims (A) Establishment required The Board shall establish a procedure for expedited relief outside of the routine claims process established under paragraph (5) for claimants who— (i) allege the existence of legally valid and enforceable or perfected security in- terests in assets of any credit union for which the Board has been appointed liqui- dating agent; and (ii) allege that irreparable injury will occur if the routine claims procedure is followed. (B) Determination period Before the end of the 90-day period begin- ning on the date any claim is filed in accord- ance with the procedures established pursu- ant to subparagraph (A), the Board shall— (i) determine— (I) whether to allow or disallow such claim; or (II) whether such claim should be de- termined pursuant to the procedures es- tablished pursuant to paragraph (5); or (ii) notify the claimant of the determina- tion, and if the claim is disallowed, a statement of each reason for the disallow- ance and the procedure for obtaining agen- cy review or judicial determination. (C) Period for filing or renewing suit Any claimant who files a request for expe- dited relief shall be permitted to file a suit, or to continue a suit filed before the ap- pointment of the liquidating agent, seeking a determination of the claimant’s rights with respect to such security interest after the earlier of— (i) the end of the 90-day period beginning on the date of the filing of a request for ex- pedited relief; or (ii) the date the Board denies the claim. (D) Statute of limitations If an action described in subparagraph (C) is not filed, or the motion to renew a pre- viously filed suit is not made, before the end of the 30-day period beginning on the date on Page 923 TITLE 12—BANKS AND BANKING § 1787 which such action or motion may be filed in accordance with subparagraph (B), the claim shall be deemed to be disallowed as of the end of such period (other than any portion of such claim which was allowed by the liqui- dating agent), such disallowance shall be final, and the claimant shall have no further rights or remedies with respect to such claim. (E) Legal effect of filing (i) Statute of limitation tolled For purposes of any applicable statute of limitations, the filing of a claim with the liquidating agent shall constitute a com- mencement of an action. (ii) No prejudice to other actions Subject to paragraph (12), the filing of a claim with the liquidating agent shall not prejudice any right of the claimant to con- tinue any action which was filed before the appointment of the liquidating agent. (9) Agreement as basis of claim (A) Requirements Except as provided in subparagraph (B), any agreement which does not meet the re- quirements set forth in section 1788(a)(3) of this title shall not form the basis of, or sub- stantially comprise, a claim against the liq- uidating agent or the Board. (B) Exception to contemporaneous execution requirement Notwithstanding section 1788(a)(3) of this title, any agreement between a Federal home loan bank or Federal Reserve bank and any insured credit union which was exe- cuted before the extension of credit by such bank to such credit union shall be treated as having been executed contemporaneously with such extension of credit for purposes of subparagraph (A). (10) Payment of claims (A) In general The liquidating agent may, in the liqui- dating agent’s discretion and to the extent funds are available, pay creditor claims which are allowed by the liquidating agent, approved by the Board pursuant to a final determination pursuant to paragraph (7) or (8), or determined by the final judgment of any court of competent jurisdiction in such manner and amounts as are authorized under this chapter. (B) Payment of dividends on claims The liquidating agent may, in the liqui- dating agent’s sole discretion, pay dividends on proved claims at any time, and no liabil- ity shall attach to the Board (in such Board’s corporate capacity or as liquidating agent), by reason of any such payment, for failure to pay dividends to a claimant whose claim is not proved at the time of any such payment. (11) Distribution of assets (A) Subrogated claims; claims of uninsured accountholders and other creditors The liquidating agent shall— (i) retain for the account of the Board such portion of the amounts realized from any liquidation as the Board may be enti- tled to receive in connection with the sub- rogation of the claims of accountholders; and (ii) pay to accountholders and other creditors the net amounts available for distribution to them. (B) Distribution to shareholders of amounts remaining after payment of all other claims and expenses In any case in which funds remain after all accountholders, creditors, other claimants, and administrative expenses are paid, the liquidating agent shall distribute such funds to the credit union’s shareholders or mem- bers together with the accounting report re- quired under paragraph (14)(C). (12) Suspension of legal actions (A) In general After the appointment of a conservator or liquidating agent for an insured credit union, the conservator or liquidating agent may request a stay for a period not to ex- ceed— (i) 45 days, in the case of any conser- vator; and (ii) 90 days, in the case of any liquidating agent, in any judicial action or proceeding to which such credit union is or becomes a party. (B) Grant of stay by all courts required Upon receipt of a request by any conser- vator or liquidating agent pursuant to sub- paragraph (A) for a stay of any judicial ac- tion or proceeding in any court with juris- diction of such action or proceeding, the court shall grant such stay as to all parties. (13) Additional rights and duties (A) Prior final adjudication The Board shall abide by any final unappealable judgment of any court of com- petent jurisdiction which was rendered be- fore the appointment of the Board as conser- vator or liquidating agent. (B) Rights and remedies of conservator or liquidating agent In the event of any appealable judgment, the Board as conservator or liquidating agent shall— (i) have all the rights and remedies available to the credit union (before the appointment of such conservator or liqui- dating agent) and the Board in its cor- porate capacity, including removal to Fed- eral court and all appellate rights; and (ii) not be required to post any bond in order to pursue such remedies. (C) No attachment or execution No attachment or execution may issue by any court upon assets in the possession of the liquidating agent. (D) Limitation on judicial review Except as otherwise provided in this sub- section, no court shall have jurisdiction over— Page 924 TITLE 12—BANKS AND BANKING § 1787 (i) any claim or action for payment from, or any action seeking a determina- tion of rights with respect to, the assets of any credit union for which the Board has been appointed liquidating agent, includ- ing assets which the Board may acquire from itself as such liquidating agent; or (ii) any claim relating to any act or omission of such credit union or the Board as liquidating agent. (14) Statute of limitations for actions brought by conservator or liquidating agent (A) In general Notwithstanding any provision of any con- tract, the applicable statute of limitations with regard to any action brought by the Board as conservator or liquidating agent shall be— (i) in the case of any contract claim, the longer of— (I) the 6-year period beginning on the date the claim accrues; or (II) the period applicable under State law; and (ii) in the case of any tort claim, the longer of— (I) the 3-year period beginning on the date the claim accrues; or (II) the period applicable under State law. (B) Determination of the date on which a claim accrues For purposes of subparagraph (A), the date on which the statute of limitation begins to run on any claim described in such subpara- graph shall be the later of— (i) the date of the appointment of the Board as conservator or liquidating agent; or (ii) the date on which the cause of action accrues. (15) Accounting and recordkeeping require- ments (A) In general The Board as conservator or liquidating agent shall, consistent with the accounting and reporting practices and procedures es- tablished by the Board, maintain a full ac- counting of each conservatorship and liq- uidation or other disposition of credit unions in default. (B) Annual accounting or report With respect to each conservatorship or liquidation to which the Board was ap- pointed, the Board shall make an annual ac- counting or report, as appropriate, available to the Comptroller General of the United States or, in the case of a State-chartered credit union, the authority which appointed the Board as conservator or liquidating agent. (C) Availability of reports Any report prepared pursuant to subpara- graph (B) shall be made available by the Board upon request to any shareholder of the credit union for which the Board was ap- pointed conservator or liquidating agent or any other member of the public. (D) Recordkeeping requirement (i) In general Except as provided in clause (ii), after the end of the 6-year period beginning on the date the Board is appointed as liqui- dating agent of an insured credit union, the Board may destroy any records of such credit union which the Board, in the Board’s discretion, determines to be un- necessary unless directed not to do so by a court of competent jurisdiction or govern- mental agency, or prohibited by law. (ii) Old records Notwithstanding clause (i) the Board may destroy records of an insured credit union which are at least 10 years old as of the date on which the Board is appointed as liquidating agent of such credit union in accordance with clause (i) at any time after such appointment is final, without regard to the 6-year period of limitation contained in clause (i). (16) Fraudulent transfers (A) In general The Board, as conservator or liquidating agent for any insured credit union, may avoid a transfer of any interest of an institu- tion-affiliated party, or any person who the Board determines is a debtor of the institu- tion, in property, or any obligation incurred by such party or person, that was made within 5 years of the date on which the Board becomes conservator or liquidating agent if such party or person voluntarily or involuntarily made such transfer or incurred such liability with the intent to hinder, delay, or defraud the insured credit union or the Board. (B) Right of recovery To the extent a transfer is avoided under subparagraph (A), the Board may recover, for the benefit of the insured credit union, the property transferred, or, if a court so or- ders, the value of such property (at the time of such transfer) from— (i) the initial transferee of such transfer or the institution-affiliated party or per- son for whose benefit such transfer was made; or (ii) any immediate or mediate transferee of any such initial transferee. (C) Rights of transferee or obligee The Board may not recover under subpara- graph (B) from— (i) any transferee that takes for value, including satisfaction or securing of a present or antecedent debt, in good faith; or (ii) any immediate or mediate good faith transferee of such transferee. (D) Rights under this paragraph The rights of the Board under this para- graph shall be superior to any rights of a trustee or any other party (other than any party which is a Federal agency) under title 11. Page 925 TITLE 12—BANKS AND BANKING § 1787 (c) Provisions relating to contracts entered into before appointment of conservator or liqui- dating agent (1) Authority to repudiate contracts In addition to any other rights a conservator or liquidating agent may have, the conser- vator or liquidating agent for any insured credit union may disaffirm or repudiate any contract or lease— (A) to which such credit union is a party; (B) the performance of which the conser- vator or liquidating agent, in the conserva- tor’s or liquidating agent’s discretion, deter- mines to be burdensome; and (C) the disaffirmance or repudiation of which the conservator or liquidating agent determines, in the conservator’s or liqui- dating agent’s discretion, will promote the orderly administration of the credit union’s affairs. (2) Timing of repudiation The conservator or liquidating agent ap- pointed for any insured credit union shall de- termine whether or not to exercise the rights of repudiation under this subsection within a reasonable period following such appointment. (3) Claims for damages for repudiation (A) In general Except as otherwise provided in subpara- graph (C) and paragraphs (4), (5), and (6), the liability of the conservator or liquidating agent for the disaffirmance or repudiation of any contract pursuant to paragraph (1) shall be— (i) limited to actual direct compensatory damages; and (ii) determined as of— (I) the date of the appointment of the conservator or liquidating agent; or (II) in the case of any contract or agreement referred to in paragraph (8), the date of the disaffirmance or repudi- ation of such contract or agreement. (B) No liability for other damages For purposes of subparagraph (A), the term ‘‘actual direct compensatory damages’’ does not include— (i) punitive or exemplary damages; (ii) damages for lost profits or oppor- tunity; or (iii) damages for pain and suffering. (C) Measure of damages for repudiation of fi- nancial contracts In the case of any qualified financial con- tract or agreement to which paragraph (8) applies, compensatory damages shall be— (i) deemed to include normal and reason- able costs of cover or other reasonable measures of damages utilized in the indus- tries for such contract and agreement claims; and (ii) paid in accordance with this sub- section and subsection (f) except as other- wise specifically provided in this section. (4) Leases under which the credit union is the lessee (A) In general If the conservator or liquidating agent dis- affirms or repudiates a lease under which the credit union was the lessee, the conser- vator or liquidating agent shall not be liable for any damages (other than damages deter- mined pursuant to subparagraph (B)) for the disaffirmance or repudiation of such lease. (B) Payments of rent Notwithstanding subparagraph (A), the lessor under a lease to which such subpara- graph applies shall— (i) be entitled to the contractual rent ac- cruing before the later of the date— (I) the notice of disaffirmance or repu- diation is mailed; or (II) the disaffirmance or repudiation becomes effective, unless the lessor is in default or breach of the terms of the lease; (ii) have no claim for damages under any acceleration clause or other penalty provi- sion in the lease; and (iii) have a claim for any unpaid rent, subject to all appropriate offsets and de- fenses, due as of the date of the appoint- ment which shall be paid in accordance with this subsection and subsection (b). (5) Leases under which the credit union is the lessor (A) In general If the conservator or liquidating agent re- pudiates an unexpired written lease of real property of the credit union under which the credit union is the lessor and the lessee is not, as of the date of such repudiation, in de- fault, the lessee under such lease may ei- ther— (i) treat the lease as terminated by such repudiation; or (ii) remain in possession of the leasehold interest for the balance of the term of the lease unless the lessee defaults under the terms of the lease after the date of such re- pudiation. (B) Provisions applicable to lessee remaining in possession If any lessee under a lease described in subparagraph (A) remains in possession of a leasehold interest pursuant to clause (ii) of such subparagraph— (i) the lessee— (I) shall continue to pay the contrac- tual rent pursuant to the terms of the lease after the date of the repudiation of such lease; and (II) may offset against any rent pay- ment which accrues after the date of the repudiation of the lease, any damages which accrue after such date due to the nonperformance of any obligation of the credit union under the lease after such date; and (ii) the conservator or liquidating agent shall not be liable to the lessee for any damages arising after such date as a result of the repudiation other than the amount of any offset allowed under clause (i)(II). (6) Contracts for the sale of real property (A) In general If the conservator or liquidating agent re- pudiates any contract (which meets the re- Page 926 TITLE 12—BANKS AND BANKING § 1787 1 So in original. Probably should be followed by ‘‘or’’. quirements of each paragraph of section 1788(a)(3) of this title) for the sale of real property and the purchaser of such real property under such contract is in posses- sion and is not, as of the date of such repudi- ation, in default, such purchaser may ei- ther— (i) treat the contract as terminated by such repudiation; or (ii) remain in possession of such real property. (B) Provisions applicable to purchaser re- maining in possession If any purchaser of real property under any contract described in subparagraph (A) remains in possession of such property pur- suant to clause (ii) of such subparagraph— (i) the purchaser— (I) shall continue to make all pay- ments due under the contract after the date of the repudiation of the contract; and (II) may offset against any such pay- ments any damages which accrue after such date due to the nonperformance (after such date) of any obligation of the credit union under the contract; and (ii) the conservator or liquidating agent shall— (I) not be liable to the purchaser for any damages arising after such date as a result of the repudiation other than the amount of any offset allowed under clause (i)(II); (II) deliver title to the purchaser in ac- cordance with the provisions of the con- tract; and (III) have no obligation under the con- tract other than the performance re- quired under subclause (II). (C) Assignment and sale allowed (i) In general No provision of this paragraph shall be construed as limiting the right of the con- servator or liquidating agent to assign the contract described in subparagraph (A) and sell the property subject to the contract and the provisions of this paragraph. (ii) No liability after assignment and sale If an assignment and sale described in clause (i) is consummated, the conservator or liquidating agent shall have no further liability under the contract described in subparagraph (A) or with respect to the real property which was the subject of such contract. (7) Provisions applicable to service contracts (A) Services performed before appointment In the case of any contract for services be- tween any person and any insured credit union for which the Board has been ap- pointed conservator or liquidating agent, any claim of such person for services per- formed before the appointment of the con- servator or the liquidating agent shall be— (i) a claim to be paid in accordance with subsection (b); and (ii) deemed to have arisen as of the date the conservator or liquidating agent was appointed. (B) Services performed after appointment and prior to repudiation If, in the case of any contract for services described in subparagraph (A), the conser- vator or liquidating agent accepts perform- ance by the other person before the conser- vator or liquidating agent makes any deter- mination to exercise the right of repudiation of such contract under this section— (i) the other party shall be paid under the terms of the contract for the services performed; and (ii) the amount of such payment shall be treated as an administrative expense of the conservatorship or liquidation. (C) Acceptance of performance no bar to sub- sequent repudiation The acceptance by any conservator or liq- uidating agent of services referred to in sub- paragraph (B) in connection with a contract described in such subparagraph shall not af- fect the right of the conservator or liqui- dating agent to repudiate such contract under this section at any time after such performance. (8) Certain qualified financial contracts (A) Rights of parties to contracts Subject to paragraphs (9) and (10) of this subsection and notwithstanding any other provision of this chapter (other than sub- section (b)(9) of this section and section 1788(a)(3) of this title), any other Federal law, or the law of any State, no person shall be stayed or prohibited from exercising— (i) any right such person has to cause the termination, liquidation, or acceleration of any qualified financial contract with an insured credit union which arises upon the appointment of the Board as liquidating agent for such credit union at any time after such appointment; (ii) any right under any security agree- ment or arrangement or other credit en- hancement related to 1 or more qualified financial contracts described in clause (i); 1 (iii) any right to offset or net out any termination value, payment amount, or other transfer obligation arising under or in connection with 1 or more contracts and agreements described in clause (i), includ- ing any master agreement for such con- tracts or agreements. (B) Applicability of other provisions Subsection (b)(12) shall apply in the case of any judicial action or proceeding brought against any liquidating agent referred to in subparagraph (A), or the credit union for which such liquidating agent was appointed, by any party to a contract or agreement de- scribed in subparagraph (A)(i) with such credit union. Page 927 TITLE 12—BANKS AND BANKING § 1787 (C) Certain transfers not avoidable (i) In general Notwithstanding paragraph (11), section 91 of this title or any other Federal or State law relating to the avoidance of preferential or fraudulent transfers, the Board, whether acting as such or as con- servator or liquidating agent of an insured credit union, may not avoid any transfer of money or other property in connection with any qualified financial contract with an insured credit union. (ii) Exception for certain transfers Clause (i) shall not apply to any transfer of money or other property in connection with any qualified financial contract with an insured credit union if the Board deter- mines that the transferee had actual in- tent to hinder, delay, or defraud such cred- it union, the creditors of such credit union, or any conservator or liquidating agent appointed for such credit union. (D) Certain contracts and agreements de- fined For purposes of this subsection, the fol- lowing definitions shall apply: (i) Qualified financial contract The term ‘‘qualified financial contract’’ means any securities contract, forward contract, repurchase agreement, and any similar agreement that the Board deter- mines by regulation, resolution, or order to be a qualified financial contract for pur- poses of this paragraph. (ii) Securities contract The term ‘‘securities contract’’— (I) means a contract for the purchase, sale, or loan of a security, a certificate of deposit, a mortgage loan, any interest in a mortgage loan, a group or index of securities, certificates of deposit, or mortgage loans or interests therein (in- cluding any interest therein or based on the value thereof) or any option on any of the foregoing, including any option to purchase or sell any such security, cer- tificate of deposit, mortgage loan, inter- est, group or index, or option, and in- cluding any repurchase or reverse repur- chase transaction on any such security, certificate of deposit, mortgage loan, in- terest, group or index, or option (wheth- er or not such repurchase or reverse re- purchase transaction is a ‘‘repurchase agreement’’, as defined in clause (v)); (II) does not include any purchase, sale, or repurchase obligation under a participation in a commercial mortgage loan unless the Board determines by reg- ulation, resolution, or order to include any such agreement within the meaning of such term; (III) means any option entered into on a national securities exchange relating to foreign currencies; (IV) means the guarantee (including by novation) by or to any securities clear- ing agency of any settlement of cash, se- curities, certificates of deposit, mort- gage loans or interests therein, group or index of securities, certificates of de- posit, or mortgage loans or interests therein (including any interest therein or based on the value thereof) or option on any of the foregoing, including any option to purchase or sell any such secu- rity, certificate of deposit, mortgage loan, interest, group or index, or option (whether or not such settlement is in connection with any agreement or trans- action referred to in subclauses (I) through (XII) (other than subclause (II)); (V) means any margin loan; (VI) means any extension of credit for the clearance or settlement of securities transactions; (VII) means any loan transaction cou- pled with a securities collar transaction, any prepaid securities forward trans- action, or any total return swap trans- action coupled with a securities sale transaction; (VIII) means any other agreement or transaction that is similar to any agree- ment or transaction referred to in this clause; (IX) means any combination of the agreements or transactions referred to in this clause; (X) means any option to enter into any agreement or transaction referred to in this clause; (XI) means a master agreement that provides for an agreement or transaction referred to in subclause (I), (III), (IV), (V), (VI), (VII), (VIII), (IX), or (X), to- gether with all supplements to any such master agreement, without regard to whether the master agreement provides for an agreement or transaction that is not a securities contract under this clause, except that the master agree- ment shall be considered to be a securi- ties contract under this clause only with respect to each agreement or transaction under the master agreement that is re- ferred to in subclause (I), (III), (IV), (V), (VI), (VII), (VIII), (IX), or (X); and (XII) means any security agreement or arrangement or other credit enhance- ment related to any agreement or trans- action referred to in this clause, includ- ing any guarantee or reimbursement ob- ligation in connection with any agree- ment or transaction referred to in this clause. (iii) Commodity contract The term ‘‘commodity contract’’ means— (I) with respect to a futures commis- sion merchant, a contract for the pur- chase or sale of a commodity for future delivery on, or subject to the rules of, a contract market or board of trade; (II) with respect to a foreign futures commission merchant, a foreign future; (III) with respect to a leverage trans- action merchant, a leverage transaction; Page 928 TITLE 12—BANKS AND BANKING § 1787 2 So in original. The comma probably should not appear. (IV) with respect to a clearing organi- zation, a contract for the purchase or sale of a commodity for future delivery on, or subject to the rules of, a contract market or board of trade that is cleared by such clearing organization, or com- modity option traded on, or subject to the rules of, a contract market or board of trade that is cleared by such clearing organization; (V) with respect to a commodity op- tions dealer, a commodity option; (VI) any other agreement or trans- action that is similar to any agreement or transaction referred to in this clause; (VII) any combination of the agree- ments or transactions referred to in this clause; (VIII) any option to enter into any agreement or transaction referred to in this clause; (IX) a master agreement that provides for an agreement or transaction referred to in subclause (I), (II), (III), (IV), (V), (VI), (VII), or (VIII), together with all supplements to any such master agree- ment, without regard to whether the master agreement provides for an agree- ment or transaction that is not a com- modity contract under this clause, ex- cept that the master agreement shall be considered to be a commodity contract under this clause only with respect to each agreement or transaction under the master agreement that is referred to in subclause (I), (II), (III), (IV), (V), (VI), (VII), or (VIII); or (X) any security agreement or arrange- ment or other credit enhancement re- lated to any agreement or transaction referred to in this clause, including any guarantee or reimbursement obligation in connection with any agreement or transaction referred to in this clause. (iv) Forward contract The term ‘‘forward contract’’ means— (I) a contract (other than a commodity contract) for the purchase, sale, or trans- fer of a commodity or any similar good, article, service, right, or interest which is presently or in the future becomes the subject of dealing in the forward con- tract trade, or product or byproduct thereof, with a maturity date more than 2 days after the date the contract is en- tered into, including,2 a repurchase or re- verse repurchase transaction (whether or not such repurchase or reverse repur- chase transaction is a ‘‘repurchase agree- ment’’, as defined in clause (v)), consign- ment, lease, swap, hedge transaction, de- posit, loan, option, allocated trans- action, unallocated transaction, or any other similar agreement; (II) any combination of agreements or transactions referred to in subclauses (I) and (III); (III) any option to enter into any agreement or transaction referred to in subclause (I) or (II); (IV) a master agreement that provides for an agreement or transaction referred to in subclauses (I), (II), or (III), together with all supplements to any such master agreement, without regard to whether the master agreement provides for an agreement or transaction that is not a forward contract under this clause, ex- cept that the master agreement shall be considered to be a forward contract under this clause only with respect to each agreement or transaction under the master agreement that is referred to in subclause (I), (II), or (III); or (V) any security agreement or arrange- ment or other credit enhancement re- lated to any agreement or transaction referred to in subclause (I), (II), (III), or (IV), including any guarantee or reim- bursement obligation in connection with any agreement or transaction referred to in any such subclause. (v) Repurchase agreement The term ‘‘repurchase agreement’’ (which definition also applies to a reverse repurchase agreement)— (I) means an agreement, including re- lated terms, which provides for the transfer of one or more certificates of de- posit, mortgage-related securities (as such term is defined in the Securities Exchange Act of 1934 [15 U.S.C. 78a et seq.]), mortgage loans, interests in mort- gage-related securities or mortgage loans, eligible bankers’ acceptances, qualified foreign government securities or securities that are direct obligations of, or that are fully guaranteed by, the United States or any agency of the United States against the transfer of funds by the transferee of such certifi- cates of deposit, eligible bankers’ accept- ances, securities, mortgage loans, or in- terests with a simultaneous agreement by such transferee to transfer to the transferor thereof certificates of deposit, eligible bankers’ acceptances, securities, mortgage loans, or interests as described above, at a date certain not later than 1 year after such transfers or on demand, against the transfer of funds, or any other similar agreement; (II) does not include any repurchase obligation under a participation in a commercial mortgage loan unless the Board determines by regulation, resolu- tion, or order to include any such par- ticipation within the meaning of such term; (III) means any combination of agree- ments or transactions referred to in sub- clauses (I) and (IV); (IV) means any option to enter into any agreement or transaction referred to in subclause (I) or (III); (V) means a master agreement that provides for an agreement or transaction referred to in subclause (I), (III), or (IV), together with all supplements to any such master agreement, without regard Page 929 TITLE 12—BANKS AND BANKING § 1787 to whether the master agreement pro- vides for an agreement or transaction that is not a repurchase agreement under this clause, except that the master agreement shall be considered to be a re- purchase agreement under this subclause only with respect to each agreement or transaction under the master agreement that is referred to in subclause (I), (III), or (IV); and (VI) means any security agreement or arrangement or other credit enhance- ment related to any agreement or trans- action referred to in subclause (I), (III), (IV), or (V), including any guarantee or reimbursement obligation in connection with any agreement or transaction re- ferred to in any such subclause. For purposes of this clause, the term ‘‘qualified foreign government security’’ means a security that is a direct obliga- tion of, or that is fully guaranteed by, the central government of a member of the Or- ganization for Economic Cooperation and Development (as determined by regulation or order adopted by the appropriate Fed- eral banking authority). (vi) Swap agreement The term ‘‘swap agreement’’ means— (I) any agreement, including the terms and conditions incorporated by reference in any such agreement, which is an in- terest rate swap, option, future, or for- ward agreement, including a rate floor, rate cap, rate collar, cross-currency rate swap, and basis swap; a spot, same day- tomorrow, tomorrow-next, forward, or other foreign exchange, precious metals, or other commodity agreement; a cur- rency swap, option, future, or forward agreement; an equity index or equity swap, option, future, or forward agree- ment; a debt index or debt swap, option, future, or forward agreement; a total re- turn, credit spread or credit swap, op- tion, future, or forward agreement; a commodity index or commodity swap, option, future, or forward agreement; weather swap, option, future, or forward agreement; an emissions swap, option, future, or forward agreement; or an in- flation swap, option, future, or forward agreement; (II) any agreement or transaction that is similar to any other agreement or transaction referred to in this clause and that is of a type that has been, is pres- ently, or in the future becomes, the sub- ject of recurrent dealings in the swap or other derivatives markets (including terms and conditions incorporated by reference in such agreement) and that is a forward, swap, future, option, or spot transaction on one or more rates, cur- rencies, commodities, equity securities or other equity instruments, debt securi- ties or other debt instruments, quan- titative measures associated with an oc- currence, extent of an occurrence, or contingency associated with a financial, commercial, or economic consequence, or economic or financial indices or meas- ures of economic or financial risk or value; (III) any combination of agreements or transactions referred to in this clause; (IV) any option to enter into any agreement or transaction referred to in this clause; (V) a master agreement that provides for an agreement or transaction referred to in subclause (I), (II), (III), or (IV), to- gether with all supplements to any such master agreement, without regard to whether the master agreement contains an agreement or transaction that is not a swap agreement under this clause, ex- cept that the master agreement shall be considered to be a swap agreement under this clause only with respect to each agreement or transaction under the mas- ter agreement that is referred to in sub- clause (I), (II), (III), or (IV); and (VI) any security agreement or ar- rangement or other credit enhancement related to any agreements or trans- actions referred to in subclause (I), (II), (III), (IV), or (V), including any guar- antee or reimbursement obligation in connection with any agreement or trans- action referred to in any such subclause. Such term is applicable for purposes of this subsection only and shall not be con- strued or applied so as to challenge or af- fect the characterization, definition, or treatment of any swap agreement under any other statute, regulation, or rule, in- cluding the Gramm-Leach-Bliley Act, the Legal Certainty for Bank Products Act of 2000 [7 U.S.C. 27 to 27f], the securities laws (as such term is defined in section 3(a)(47) of the Securities Exchange Act of 1934 [15 U.S.C. 78c(a)(47)]) and the Commodity Ex- change Act [7 U.S.C. 1 et seq.]. (vii) Treatment of master agreement as one agreement Any master agreement for any contract or agreement described in any preceding clause of this subparagraph (or any master agreement for such master agreement or agreements), together with all supple- ments to such master agreement, shall be treated as a single agreement and a single qualified financial contract. If a master agreement contains provisions relating to agreements or transactions that are not themselves qualified financial contracts, the master agreement shall be deemed to be a qualified financial contract only with respect to those transactions that are themselves qualified financial contracts. (viii) Transfer The term ‘‘transfer’’ means every mode, direct or indirect, absolute or conditional, voluntary or involuntary, of disposing of or parting with property or with an inter- est in property, including retention of title as a security interest and foreclosure of the depository institution’s equity of re- demption. Page 930 TITLE 12—BANKS AND BANKING § 1787 (ix) Person The term ‘‘person’’ includes any govern- mental entity in addition to any entity in- cluded in the definition of such term in section 1 of title 1. (E) Certain protections in event of appoint- ment of conservator Notwithstanding any other provision of this chapter (other than subsections (b)(9) and (c)(10) of this section, and section 1788(a)(3) of this title), any other Federal law, or the law of any State, no person shall be stayed or prohibited from exercising— (i) any right such person has to cause the termination, liquidation, or acceleration of any qualified financial contract with a credit union in a conservatorship based upon a default under such financial con- tract which is enforceable under applicable noninsolvency law; (ii) any right under any security agree- ment or arrangement or other credit en- hancement related to 1 or more qualified financial contracts described in clause (i); 1 (iii) any right to offset or net out any termination values, payment amounts, or other transfer obligations arising under or in connection with such qualified financial contracts. (F) Clarification No provision of law shall be construed as limiting the right or power of the Board, or authorizing any court or agency to limit or delay, in any manner, the right or power of the Board to transfer any qualified financial contract in accordance with paragraphs (9) and (10) of this subsection or to disaffirm or repudiate any such contract in accordance with subsection (c)(1) of this section. (G) Walkaway clauses not effective (i) In general Notwithstanding the provisions of sub- paragraphs (A) and (E), and sections 4403 and 4404 of this title, no walkaway clause shall be enforceable in a qualified financial contract of an insured credit union in de- fault. (ii) Limited suspension of certain obliga- tions In the case of a qualified financial con- tract referred to in clause (i), any payment or delivery obligations otherwise due from a party pursuant to the qualified financial contract shall be suspended from the time the liquidating agent is appointed until the earlier of— (I) the time such party receives notice that such contract has been transferred pursuant to subparagraph (A); or (II) 5:00 p.m. (eastern time) on the busi- ness day following the date of the ap- pointment of the liquidating agent. (iii) Walkaway clause defined For purposes of this subparagraph, the term ‘‘walkaway clause’’ means any provi- sion in a qualified financial contract that suspends, conditions, or extinguishes a payment obligation of a party, in whole or in part, or does not create a payment obli- gation of a party that would otherwise exist, solely because of such party’s status as a nondefaulting party in connection with the insolvency of an insured credit union or the appointment of or the exer- cise of rights or powers by a conservator or liquidating agent of such credit union, and not as a result of a party’s exercise of any right to offset, setoff, or net obligations that exist under the contract, any other contract between those parties, or applica- ble law. (H) Recordkeeping requirements The Board, in consultation with the appro- priate Federal banking agencies, may pre- scribe regulations requiring more detailed recordkeeping by any insured credit union with respect to qualified financial contracts (including market valuations) only if such insured credit union is in a troubled condi- tion (as such term is defined by the Board pursuant to section 1790a of this title). (9) Transfer of qualified financial contracts (A) In general In making any transfer of assets or liabil- ities of a credit union in default which in- cludes any qualified financial contract, the conservator or liquidating agent for such credit union shall either— (i) transfer to 1 financial institution, other than a financial institution for which a conservator, receiver, trustee in bankruptcy, or other legal custodian has been appointed or which is otherwise the subject of a bankruptcy or insolvency pro- ceeding— (I) all qualified financial contracts be- tween any person or any affiliate of such person and the credit union in default; (II) all claims of such person or any af- filiate of such person against such credit union under any such contract (other than any claim which, under the terms of any such contract, is subordinated to the claims of general unsecured creditors of such credit union); (III) all claims of such credit union against such person or any affiliate of such person under any such contract; and (IV) all property securing or any other credit enhancement for any contract de- scribed in subclause (I) or any claim de- scribed in subclause (II) or (III) under any such contract; or (ii) transfer none of the qualified finan- cial contracts, claims, property or other credit enhancement referred to in clause (i) (with respect to such person and any af- filiate of such person). (B) Transfer to foreign bank, foreign finan- cial institution, or branch or agency of a foreign bank or financial institution In transferring any qualified financial con- tracts and related claims and property under subparagraph (A)(i), the conservator or liq- Page 931 TITLE 12—BANKS AND BANKING § 1787 3 So in original. Probably should read ‘‘(or’’. 4 So in original. Probably should be ‘‘bridge depository institu- tions’’. uidating agent for the credit union shall not make such transfer to a foreign bank, finan- cial institution organized under the laws of a foreign country, or a branch or agency of a foreign bank or financial institution un- less, under the law applicable to such bank, financial institution, branch or agency, to the qualified financial contracts, and to any netting contract, any security agreement or arrangement or other credit enhancement related to 1 or more qualified financial con- tracts, the contractual rights of the parties to such qualified financial contracts, netting contracts, security agreements or arrange- ments, or other credit enhancements are en- forceable substantially to the same extent as permitted under this section. (C) Transfer of contracts subject to the rules of a clearing organization In the event that a conservator or liqui- dating agent transfers any qualified finan- cial contract and related claims, property, and credit enhancements pursuant to sub- paragraph (A)(i) and such contract is cleared by or subject to the rules of a clearing orga- nization, the clearing organization shall not be required to accept the transferee as a member by virtue of the transfer. (D) Definitions For purposes of this paragraph— (i) the term ‘‘financial institution’’ means a broker or dealer, a depository in- stitution, a futures commission merchant, a credit union, or any other institution, as determined by the Board by regulation to be a financial institution; and (ii) the term ‘‘clearing organization’’ has the same meaning as in section 4402 of this title. (10) Notification of transfer (A) In general If— (i) the conservator or liquidating agent for an insured credit union in default makes any transfer of the assets and li- abilities of such credit union; and (ii) the transfer includes any qualified fi- nancial contract, the conservator or liquidating agent shall notify any person who is a party to any such contract of such transfer by 5:00 p.m. (east- ern time) on the business day following the date of the appointment of the liquidating agent in the case of a liquidation, or the business day following such transfer in the case of a conservatorship. (B) Certain rights not enforceable (i) Liquidation A person who is a party to a qualified fi- nancial contract with an insured credit union may not exercise any right that such person has to terminate, liquidate, or net such contract under paragraph (8)(A) of this subsection or section 4403 or 4404 of this title, solely by reason of or incidental to the appointment of a liquidating agent for the credit union institution (or the in- solvency or financial condition of the cred- it union for which the liquidating agent has been appointed)— (I) until 5:00 p.m. (eastern time) on the business day following the date of the appointment of the liquidating agent; or (II) after the person has received no- tice that the contract has been trans- ferred pursuant to paragraph (9)(A). (ii) Conservatorship A person who is a party to a qualified fi- nancial contract with an insured credit union may not exercise any right that such person has to terminate, liquidate, or net such contract under paragraph (8)(E) of this subsection or section 4403 or 4404 of this title, solely by reason of or incidental to the appointment of a conservator for the credit union or 3 the insolvency or fi- nancial condition of the credit union for which the conservator has been appointed). (iii) Notice For purposes of this paragraph, the Board as conservator or liquidating agent of an insured credit union shall be deemed to have notified a person who is a party to a qualified financial contract with such credit union if the Board has taken steps reasonably calculated to provide notice to such person by the time specified in sub- paragraph (A). (C) Treatment of bridge banks 4 The following institutions shall not be considered to be a financial institution for which a conservator, receiver, trustee in bankruptcy, or other legal custodian has been appointed or which is otherwise the subject of a bankruptcy or insolvency pro- ceeding for purposes of paragraph (9): (i) A bridge depository institution. (ii) A credit union organized by the Board, for which a conservator is ap- pointed either— (I) immediately upon the organization of the credit union; or (II) at the time of a purchase and as- sumption transaction between the credit union and the Board as receiver for a credit union in default. (D) ‘‘Business day’’ defined For purposes of this paragraph, the term ‘‘business day’’ means any day other than any Saturday, Sunday, or any day on which either the New York Stock Exchange or the Federal Reserve Bank of New York is closed. (11) Disaffirmance or repudiation of qualified financial contracts In exercising the rights of disaffirmance or repudiation of a conservator or liquidating agent with respect to any qualified financial contract to which an insured credit union is a party, the conservator or liquidating agent for such credit union shall either— (A) disaffirm or repudiate all qualified fi- nancial contracts between— Page 932 TITLE 12—BANKS AND BANKING § 1787 5 So in original. Probably should be section ‘‘3(a)(47)’’. (i) any person or any affiliate of such person; and (ii) the credit union in default; or (B) disaffirm or repudiate none of the qualified financial contracts referred to in subparagraph (A) (with respect to such per- son or any affiliate of such person). (12) Certain security interests not avoidable No provision of this subsection shall be con- strued as permitting the avoidance of any le- gally enforceable or perfected security inter- est in any of the assets of any credit union ex- cept where such an interest is taken in con- templation of the credit union’s insolvency or with the intent to hinder, delay, or defraud the credit union or the creditors of such credit union. (13) Authority to enforce contracts (A) In general The conservator or liquidating agent may enforce any contract, other than a director’s or officer’s liability insurance contract or a credit union bond, entered into by the credit union notwithstanding any provision of the contract providing for termination, default, acceleration, or exercise of rights upon, or solely by reason of, insolvency or the ap- pointment of or the exercise of rights or powers by a conservator or liquidating agent. (B) Certain rights not affected No provision of this paragraph may be con- strued as impairing or affecting any right of the conservator or liquidating agent to en- force or recover under a directors or officers liability insurance contract or credit union bond under other applicable law. (C) Consent requirement (i) In general Except as otherwise provided by this sec- tion, no person may exercise any right or power to terminate, accelerate, or declare a default under any contract to which the credit union is a party, or to obtain posses- sion of or exercise control over any prop- erty of the credit union or affect any con- tractual rights of the credit union, with- out the consent of the conservator or liqui- dating agent, as appropriate, during the 45- day period beginning on the date of the ap- pointment of the conservator, or during the 90-day period beginning on the date of the appointment of the liquidating agent, as applicable. (ii) Certain exceptions No provision of this subparagraph shall apply to a director or officer liability in- surance contract or a credit union bond, or to the rights of parties to certain qualified financial contracts pursuant to paragraph (8), or shall be construed as permitting the conservator or liquidating agent to fail to comply with otherwise enforceable provi- sions of such contract. (iii) Rule of construction Nothing in this subparagraph shall be construed to limit or otherwise affect the applicability of title 11. (14) Exception for Federal Reserve and Federal home loan banks No provision of this subsection shall apply with respect to— (A) any extension of credit from any Fed- eral home loan bank or Federal Reserve bank to any insured depository institution; or (B) any security interest in the assets of the institution securing any such extension of credit. (15) Savings clause The meanings of terms used in this sub- section are applicable for purposes of this sub- section only, and shall not be construed or ap- plied so as to challenge or affect the charac- terization, definition, or treatment of any similar terms under any other statute, regula- tion, or rule, including the Gramm-Leach-Bli- ley Act, the Legal Certainty for Bank Prod- ucts Act of 2000 [7 U.S.C. 27 to 27f], the securi- ties laws (as that term is defined in section (a)(47) 5 of the Securities Exchange Act of 1934), and the Commodity Exchange Act [7 U.S.C. 1 et seq.]. (d) Payment of insured deposits (1) In general In case of the liquidation of any insured credit union, payment of the insured deposits in such credit union shall be made by the Board as soon as possible, subject to the provi- sions of subsection (e) of this section, either by cash or by making available to each accountholder a transferred deposit in a new credit union in the same community or in an- other insured credit union in an amount equal to the insured deposit of such accountholder. (2) Proof of claims The Board, in its discretion, may require proof of claims to be filed and may approve or reject such claims for insured deposits. (3) Resolution of disputes A determination by the Administration re- garding any claim for insurance coverage shall be treated as a final determination for pur- poses of this section. In its discretion, the Board may promulgate regulations prescribing procedures for resolving any disputed claim relating to any insured deposit or any deter- mination of insurance coverage with respect to any deposit. A final determination made by the Board regarding any claim for insurance coverage shall be a final agency action review- able in accordance with chapter 7 of title 5 by the United States district court for the Fed- eral judicial district where the principal place of business of the credit union is located. (4) Statute of limitations Any request for review of a final determina- tion by the Board regarding any claim for in- surance coverage shall be filed with the appro- priate United States district court not later than 60 days after the date on which such de- termination is issued. Page 933 TITLE 12—BANKS AND BANKING § 1787 (e) Subrogation of Board (1) In general Notwithstanding any other provision of Fed- eral law, the law of any State, or the constitu- tion of any State, the Board, upon the pay- ment to any accountholder as provided in sub- section (d) in connection with any insured credit union described in such subsection or the assumption of any deposit in such credit union by another insured credit union pursu- ant to this section, shall be subrogated to all rights of the accountholder against such cred- it union to the extent of such payment or as- sumption. (2) Dividends on subrogated amounts The subrogation of the Board under para- graph (1) with respect to any insured credit union shall include the right on the part of the Board to receive the same dividends from the proceeds of the assets of such credit union as would have been payable to the accountholder on a claim for the insured deposit, but such accountholder shall retain such claim for any uninsured or unassumed portion of the de- posit. (f) Valuation of claims in default (1) In general Notwithstanding any other provision of Fed- eral law or the law of any State, this sub- section shall govern the rights of the creditors (other than insured accountholders) of such credit union. (2) Maximum liability The maximum liability of the Board, acting as liquidating agent or in any other capacity, to any person having a claim against the liqui- dating agent or the insured credit union for which such liquidating agent is appointed shall equal the amount such claimant would have received if the Board had liquidated the assets and liabilities of such credit union without exercising the Board’s authority under subsection (n) of this section. (3) Additional payments authorized (A) In general The Board may, in its discretion and in the interests of minimizing its losses, use its own resources to make additional payments or credit additional amounts to or with re- spect to or for the account of any claimant or category of claimants. The Board shall not be obligated, as a result of having made any such payment or credited any such amount to or with respect to or for the ac- count of any claimant or category of claim- ants, to make payments to any other claim- ant or category of claimants. (B) Manner of payment The Board may make the payments or credit the amounts specified in subpara- graph (A) directly to the claimants or may make such payments or credit such amounts to an open insured credit union to induce the open insured credit union to accept liability for such claims. (g) Limitation on court action Except as provided in this section, no court may take any action, except at the request of the Board of Directors by regulation or order, to restrain or affect the exercise of powers or func- tions of the Board as a conservator or a liqui- dating agent. (h) Liability of directors and officers A director or officer of an insured credit union may be held personally liable for monetary dam- ages in any civil action by, on behalf of, or at the request or direction of the Board, which ac- tion is prosecuted wholly or partially for the benefit of the Board— (1) acting as conservator or liquidating agent of such insured credit union, (2) acting based upon a suit, claim, or cause of action purchased from, assigned by, or oth- erwise conveyed by such liquidating agent or conservator, or (3) acting based upon a suit, claim, or cause of action purchased from, assigned by, or oth- erwise conveyed in whole or in part by an in- sured credit union or its affiliate in connec- tion with assistance provided under section 1788 of this title, for gross negligence, including any similar con- duct or conduct that demonstrates a greater dis- regard of a duty of care (than gross negligence) including intentional tortious conduct, as such terms are defined and determined under applica- ble State law. Nothing in this paragraph shall impair or affect any right, if any, of the Board under other applicable law. (i) Damages In any proceeding related to any claim against an insured credit union’s director, officer, em- ployee, agent, attorney, accountant, appraiser, or any other party employed by or providing services to an insured credit union, recoverable damages determined to result from the improvi- dent or otherwise improper use or investment of any insured credit union’s assets shall include principal losses and appropriate interest. (j) Board as liquidating agent of State-chartered credit unions Whenever any insured State-chartered credit union shall have been closed by action of its board of directors or by the commission, board, or authority having supervision of such credit union, as the case may be, or by a court of com- petent jurisdiction, on account of bankruptcy or insolvency, the Board shall accept appointment as liquidating agent therefor, if such appoint- ment is tendered by the commission, board, or authority having supervision of such credit union, or by a court of competent jurisdiction, and is authorized or permitted by State law. With respect to any such State-chartered credit union, the Board as such liquidating agent shall possess all the rights, powers, and privileges granted by State law to a liquidating agent of a State-chartered credit union. For the purposes of this subsection, the term ‘‘liquidating agent’’ includes a liquidating agent, receiver, conser- vator, commission, person, or other agency charged by law with the duty of winding up the affairs of a credit union. Page 934 TITLE 12—BANKS AND BANKING § 1787 6 So in original. Quotation marks probably should not appear. 7 So in original. Probably should be set off by quotation marks. (k) Insured amounts payable (1) Net insured amount (A) In general Subject to the provisions of paragraph (2), the net amount of share insurance payable to any member, or to any person with funds lawfully held in a member account, at an in- sured credit union shall not exceed the total amount of the shares or deposits in the name of the member (after deducting offsets), less any part thereof which is in excess of the standard maximum share insurance amount, as determined in accordance with this para- graph, and consistently with actions taken by the Federal Deposit Insurance Corpora- tion under section 1821(a) of this title. (B) Aggregation Determination of the net amount of share insurance under subparagraph (A), shall be in accordance with such regulations as the Board may prescribe, and, in determining the amount payable to any member, there shall be added together all accounts in the credit union maintained by that member for that member’s own benefit, either in the member’s own name or in the names of oth- ers. (C) Authority to define the extent of cov- erage The Board may define, with such classi- fications and exceptions as it may prescribe, the extent of the share insurance coverage provided for member accounts, including member accounts in the name of a minor, in trust, or in joint tenancy. (2) Government depositors or members (A) In general Notwithstanding any limitation in this chapter or in any other provision of law re- lating to the amount of insurance available to any 1 depositor or member, deposits or shares of a government depositor or member shall be insured in an amount equal to the standard maximum share insurance amount, subject to subparagraph (C). (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 the same in a credit union insured in accord- ance with this subchapter; (ii) an officer, employee, or agent of any State of the United States, or of any coun- ty, municipality, or political subdivision thereof having official custody of public funds and lawfully investing the same in a credit union insured in accordance with this subchapter in such State; (iii) an officer, employee, or agent of the District of Columbia having official cus- tody of public funds and lawfully investing the same in a credit union insured in ac- cordance with this subchapter in the Dis- trict of Columbia; (iv) an officer, employee, or agent of the Commonwealth of Puerto Rico, of the Pan- ama Canal Zone, or of any territory or pos- session of the United States, or of any county, municipality, or political subdivi- sion thereof having official custody of pub- lic funds and lawfully investing the same in a credit union insured in accordance with this subchapter in the Common- wealth of Puerto Rico, the Panama Canal Zone, or any such territory or possession, respectively; or (v) an officer, employee, or agent of any Indian tribe (as defined in section 1452(c) of title 25) or agency thereof having official custody of tribal funds and lawfully invest- ing the same in a credit union insured in accordance with this subchapter. (C) Authority to limit deposits The Board may limit the aggregate amount of funds that may be invested or de- posited in any credit union insured in ac- cordance with this subchapter by any gov- ernment depositor or member on the basis of the size of any such credit union in terms of its assets. (3) Notwithstanding any limitation in this subchapter or in any other provision of law re- lating to the amount of insurance available for the account of any one depositor or member, funds invested in a credit union insured in ac- cordance with this subchapter pursuant to a pension or profit-sharing plan described in sec- tion 401(d) of title 26, and funds invested in such an insured credit union in the form of individual retirement accounts as described in section 408(a) of title 26, shall be insured in the amount of ‘‘$250,000 6 (which amount shall be subject to inflation adjustments as provided under section 1821(a)(1)(F) of this title, except that $250,000 7 shall be substituted for $100,000 7 wherever such term appears in such section)’’ 6 per account. As to any plan qualifying under section 401(d) or section 408(a) of title 26, the term ‘‘per account’’ means the present vested and ascertainable in- terest of each beneficiary under the plan, ex- cluding any remainder interest created by, or as a result of, the plan. (4) Coverage for certain employee benefit plan deposits (A) Pass-through insurance The Administration shall provide pass- through share insurance for the deposits or shares of any employee benefit plan. (B) Prohibition on acceptance of deposits An insured credit union that is not well capitalized or adequately capitalized may not accept employee benefit plan deposits. (C) Definitions For purposes of this paragraph, the fol- lowing definitions shall apply: (i) Capital standards The terms ‘‘well capitalized’’ and ‘‘ade- quately capitalized’’ have the same mean- ings as in section 1790d(c) of this title. (ii) Employee benefit plan The term ‘‘employee benefit plan’’— Page 935 TITLE 12—BANKS AND BANKING § 1787 (I) has the meaning given to such term in section 1002(3) of title 29; (II) includes any plan described in sec- tion 401(d) of title 26; and (III) includes any eligible deferred compensation plan described in section 457 of title 26. (iii) Pass-through share insurance The term ‘‘pass-through share insur- ance’’ means, with respect to an employee benefit plan, insurance coverage based on the interest of each participant, in accord- ance with regulations issued by the Ad- ministration. (D) Rule of construction No provision of this paragraph shall be construed as authorizing an insured credit union to accept the deposits of an employee benefit plan in an amount greater than such credit union is authorized to accept under any other provision of Federal or State law. (5) Coverage for interest on lawyers trust ac- counts (IOLTA) and other similar escrow accounts (A) Pass-through insurance The Administration shall provide pass- through share insurance for the deposits or shares of any interest on lawyers trust ac- count (IOLTA) or other similar escrow ac- counts. (B) Treatment of IOLTAs (i) Treatment as escrow accounts For share insurance purposes, IOLTAs are treated as escrow accounts. (ii) Treatment as member accounts IOLTAs and other similar escrow ac- counts are considered member accounts for purposes of paragraph (1), if the attor- ney administering the IOLTA or the es- crow agent administering the escrow ac- count is a member of the insured credit union in which the funds are held. (C) Definitions For purposes of this paragraph: (i) Interest on lawyers trust account The terms ‘‘interest on lawyers trust ac- count’’ and ‘‘IOLTA’’ mean a system in which lawyers place certain client funds in interest-bearing or dividend-bearing ac- counts, with the interest or dividends then used to fund programs such as legal serv- ice organizations who provide services to clients in need. (ii) Pass-through share insurance The term ‘‘pass-through share insur- ance’’ means, with respect to IOLTAs and other similar escrow accounts, insurance coverage based on the interest of each per- son on whose behalf funds are held in such accounts by the attorney administering the IOLTA or the escrow agent admin- istering a similar escrow account, in ac- cordance with regulations issued by the Administration. (D) Rule of construction No provision of this paragraph shall be construed as authorizing an insured credit union to accept the deposits of an IOLTA or similar escrow account in an amount greater than such credit union is authorized to ac- cept under any other provision of Federal or State law. (6) Standard maximum share insurance amount defined For purposes of this chapter, the term ‘‘standard maximum share insurance amount’’ means $250,000, adjusted as provided under sec- tion 1821(a)(1)(F) of this title. (l) Payment; discharge of liability Payment of an insured account to any person by the Board shall discharge the Board to the same extent that payment to such person by the closed insured credit union would have dis- charged it from liability for the insured ac- count. (m) Undisclosed names Except as otherwise prescribed by the Board, the Board shall not be required to recognize as the owner of any portion of an account appear- ing on the records of the closed credit union under a name other than that of the claimant any person whose name or interest as such owner is not disclosed on the records of such closed credit union as part owner of such ac- count, if such recognition would increase the ag- gregate amount of the insured accounts in such closed credit union. (n) Withholding of payment due to liability of credit union member The Board may withhold payment of such por- tion of the insured account of any member of a closed credit union as may be required to pro- vide for the payment of any direct or indirect li- ability of such member to the closed credit union or its liquidating agent, which is not off- set against a claim due from such credit union, pending the determination and payment of such liability by such member or any other person liable therefor. (o) Unclaimed insured accounts; limitations If, after the Board shall have given at least four months’ notice to the member by mailing a copy thereof to his last-known address appear- ing on the records of the closed credit union, any member of the closed credit union shall fail to claim his insured account from the Board within 18 months after the appointment of the liquidating agent for the closed credit union, all rights of the member against the Board with re- spect to the insured accounts shall be barred, and all rights of the member against the closed credit union, or the estate to which the Board may have become subrogated, shall thereupon revert to the member. (p) Sale of assets; security for loans; approval of court; agreements affecting interest of Board in any asset acquired by it (1) Liquidating agents of insured credit unions closed for liquidation on account of bankruptcy or insolvency may offer the assets of such credit unions for sale to the Board or as security for loans from the Board, upon receiving permission from the commission, board, or authority hav- ing supervision of such credit union, in the case Page 936 TITLE 12—BANKS AND BANKING § 1787 of an insured State-chartered credit union, in accordance with express provisions of State law. The proceeds of every such sale or loan shall be utilized for the same purposes and in the same manner as other funds realized from the liquida- tion of the assets of such credit unions. The Board, in its discretion, may make loans on the security of or may purchase and liquidate or sell any part of the assets of an insured credit union closed for liquidation on account of bankruptcy or insolvency, but in any case in which the Board is acting as liquidating agent of a closed insured credit union, no such loan or purchase shall be made without the approval of a court of competent jurisdiction. (2) No agreement which tends to diminish or defeat the right, title, or interest of the Board in any asset acquired by it under this sub- section, either as security for a loan or by pur- chase, shall be valid against the Board unless such agreement— (A) shall be in writing; (B) shall have been executed by the credit union and the person or persons claiming an adverse interest thereunder, including the ob- ligor, contemporaneously with the acquisition of the asset by the credit union; (C) shall have been approved by the board of directors of the credit union, which approval shall be reflected in the minutes of such board; and (D) shall have been, continuously, from the time of its execution, an official record of the credit union. (q) Prohibition on certain acquisitions of assets (1) Convicted debtors Except as provided in paragraph (2), any in- dividual who— (A) has been convicted of an offense under section 215, 657, 1006, 1014, 1032, 1341, 1343, or 1344 of title 18 or of conspiring to commit any such offense, affecting any insured cred- it union for which the Board is appointed conservator or liquidating agent; and (B) is in default on any loan or other ex- tension of credit from such insured credit union which, if not paid, will cause substan- tial loss to the credit union, the National Credit Union Share Insurance Fund, or the Board, may not purchase any asset of such credit union from the conservator or liquidating agent. (2) Settlement of claims Paragraph (1) shall not apply to the sale or transfer by the Board of any asset of any in- sured credit union to any individual if the sale or transfer of the asset resolves or settles, or is part of the resolution or settlement, of— (A) 1 or more claims that have been, or could have been, asserted by the Board against the individual; or (B) obligations owed by the individual to the insured credit union or the Board. (r) Foreign investigations The Board, as conservator or liquidating agent of any insured credit union and for purposes of carrying out any power, authority, or duty with respect to an insured credit union— (1) may request the assistance of any foreign banking authority and provide assistance to any foreign banking authority in accordance with section 1786(u) of this title; and (2) may maintain an office to coordinate for- eign investigations or investigations on behalf of foreign banking authorities. (June 26, 1934, ch. 750, title II, § 207, as added Pub. L. 91–468, § 1(3), Oct. 19, 1970, 84 Stat. 1010; amended Pub. L. 93–495, title I, §§ 101(c), 104(a), Oct. 28, 1974, 88 Stat. 1501, 1503; Pub. L. 95–630, title V, § 502(b), title XIV, § 1401(c), Nov. 10, 1978, 92 Stat. 3681, 3712; Pub. L. 96–153, title III, § 323(c), Dec. 21, 1979, 93 Stat. 1120; Pub. L. 96–221, title III, § 308(c)(1), Mar. 31, 1980, 94 Stat. 148; Pub. L. 99–514, § 2, Oct. 22, 1986, 100 Stat. 2095; Pub. L. 100–86, title VII, § 714(a), (b), Aug. 10, 1987, 101 Stat. 654, 655; Pub. L. 101–73, title IX, § 915(c), title XII, § 1217(a), Aug. 9, 1989, 103 Stat. 486, 530; Pub. L. 101–647, title XXV, §§ 2521(a)(2), 2526(b), 2528(b), 2532(d), 2534(b), Nov. 29, 1990, 104 Stat. 4864, 4876, 4878, 4882, 4883; Pub. L. 103–394, title V, § 501(c)(1), Oct. 22, 1994, 108 Stat. 4143; Pub. L. 105–219, title III, § 301(b)(2), Aug. 7, 1998, 112 Stat. 930; Pub. L. 109–8, title IX, §§ 901(a)(2), (b)(2), (c)(2), (d)(2), (e)(2), (f)(2), (g)(2), (h)(2), (i)(2), 902(b), 903(b), 904(b), 905(b), 908(b), Apr. 20, 2005, 119 Stat. 147, 148, 150, 152, 154, 156–159, 162, 166, 183; Pub. L. 109–173, § 2(d)(1), (2), Feb. 15, 2006, 119 Stat. 3602, 3604; Pub. L. 109–351, title VII, §§ 718(b), 720(b), 721(b), 722(b), 726(21)–(23), Oct. 13, 2006, 120 Stat. 1997–1999, 2003; Pub. L. 109–390, §§ 2(a)(2), (b)(2), (c)(2), 3(b), 6(b), Dec. 12, 2006, 120 Stat. 2693–2695, 2699; Pub. L. 110–289, div. A, title VI, § 1604(b)(2), July 30, 2008, 122 Stat. 2829; Pub. L. 111–203, title III, §§ 335(b), 343(b)(1), (3), July 21, 2010, 124 Stat. 1540, 1545; Pub. L. 113–252, § 2, Dec. 18, 2014, 128 Stat. 2893.) Editorial Notes REFERENCES IN TEXT The Federal Rules of Civil Procedure, referred to in subsec. (b)(2)(G), (H), are set out in the Appendix to Title 28, Judiciary and Judicial Procedure. The Securities Exchange Act of 1934, referred to in subsec. (c)(8)(D)(v)(I), is act June 6, 1934, ch. 404, 48 Stat. 881, which is classified principally to chapter 2B (§ 78a et seq.) of Title 15, Commerce and Trade. Section 3(a)(47) of the Act is classified to section 78c of Title 15. For complete classification of this Act to the Code, see section 78a of Title 15 and Tables. The Gramm-Leach-Bliley Act, referred to in subsec. (c)(8)(D)(vi), (15), is Pub. L. 106–102, Nov. 12, 1999, 113 Stat. 1338. For complete classification of this Act to the Code, see Short Title of 1999 Amendment note set out under section 1811 of this title and Tables. The Legal Certainty for Bank Products Act of 2000, referred to in subsec. (c)(8)(D)(vi), (15), is title IV of H.R. 5660, as enacted by Pub. L. 106–554, § 1(a)(5), Dec. 21, 2000, 114 Stat. 2763, 2763A–457, which is classified to sec- tions 27 to 27f of Title 7, Agriculture. For complete classification of this Act to the Code, see Short Title of 2000 Amendment note set out under section 1 of Title 7 and Tables. The Commodity Exchange Act, referred to in subsec. (c)(8)(D)(vi), (15), is act Sept. 21, 1922, ch. 369, 42 Stat. 998, which is classified generally to chapter 1 (§ 1 et seq.) of Title 7, Agriculture. For complete classification of this Act to the Code, see section 1 of Title 7 and Ta- bles. For definition of Canal Zone, referred to in subsec. (k)(2)(B)(iv), see section 3602(b) of Title 22, Foreign Re- lations and Intercourse. Page 937 TITLE 12—BANKS AND BANKING § 1787 AMENDMENTS 2014—Subsec. (k)(1)(A). Pub. L. 113–252, § 2(1), inserted ‘‘, or to any person with funds lawfully held in a mem- ber account,’’ after ‘‘payable to any member’’ and struck out ‘‘and paragraphs (5) and (6)’’ after ‘‘this paragraph’’. Subsec. (k)(2)(A). Pub. L. 113–252, § 2(2), struck out ‘‘(as determined under paragraph (5))’’ after ‘‘insurance amount’’. Subsec. (k)(5), (6). Pub. L. 113–252, § 2(3), (4), added par. (5) and redesignated former par. (5) as (6). 2010—Subsec. (k)(1)(A). Pub. L. 111–203, § 343(b)(3)(A), struck out cl. (i) designation and heading, substituted ‘‘Subject to the provisions of paragraph (2), the net amount’’ for ‘‘Subject to clause (ii) and the provisions of paragraph (2), the net amount’’, and struck out cls. (ii) and (iii) which related to insurance for noninterest- bearing transaction accounts and defined ‘‘noninterest- bearing transaction account’’, respectively. Pub. L. 111–203, § 343(b)(1)(A), designated existing pro- visions as cl. (i), inserted heading, substituted ‘‘Subject to clause (ii) and the provisions of paragraph (2), the net amount’’ for ‘‘Subject to the provisions of para- graph (2), the net amount’’, and added cls. (ii) and (iii). Subsec. (k)(1)(B). Pub. L. 111–203, § 343(b)(3)(B), sub- stituted ‘‘subparagraph (A)’’ for ‘‘subparagraph (A)(i)’’. Pub. L. 111–203, § 343(b)(1)(B), substituted ‘‘subpara- graph (A)(i)’’ for ‘‘subparagraph (A)’’. Subsec. (k)(5). Pub. L. 111–203, § 335(b), substituted ‘‘$250,000’’ for ‘‘$100,000’’. 2008—Subsec. (c)(10)(C)(i). Pub. L. 110–289 substituted ‘‘bridge depository institution’’ for ‘‘bridge bank’’. 2006—Subsec. (b)(2)(K). Pub. L. 109–351, § 720(b), added subpar. (K). Subsec. (b)(15)(D). Pub. L. 109–351, § 722(b), designated existing provisions as cl. (i), inserted cl. heading, sub- stituted ‘‘Except as provided in clause (ii), after the end of the 6-year period’’ for ‘‘After the end of the 6-year period’’, and added cl. (ii). Subsec. (c)(5)(B)(i)(I). Pub. L. 109–351, § 726(21), in- serted ‘‘and’’ after semicolon. Subsec. (c)(8)(D)(ii)(I). Pub. L. 109–390, § 2(a)(2)(A), substituted ‘‘a mortgage loan,’’ for ‘‘a mortgage loan, or’’ after ‘‘certificate of deposit,’’ and inserted before semicolon at end ‘‘(whether or not such repurchase or reverse repurchase transaction is a ‘repurchase agree- ment’, as defined in clause (v))’’. Subsec. (c)(8)(D)(ii)(IV). Pub. L. 109–390, § 2(a)(2)(B), inserted ‘‘(including by novation)’’ after ‘‘the guar- antee’’ and ‘‘(whether or not such settlement is in con- nection with any agreement or transaction referred to in subclauses (I) through (XII) (other than subclause (II))’’ before semicolon at end. Subsec. (c)(8)(D)(ii)(VI) to (VIII). Pub. L. 109–390, § 2(a)(2)(D), (E), added subcls. (VI) and (VII) and redesig- nated former subcl. (VI) as (VIII). Former subcl. (VIII) redesignated (X). Subsec. (c)(8)(D)(ii)(IX). Pub. L. 109–390, § 2(a)(2)(D), redesignated subcl. (VII) as (IX). Former subcl. (IX) re- designated (XI). Pub. L. 109–390, § 2(a)(2)(C), substituted ‘‘(VIII), (IX), or (X)’’ for ‘‘or (VIII)’’ in two places. Subsec. (c)(8)(D)(ii)(X) to (XII). Pub. L. 109–390, § 2(a)(2)(D), redesignated subcls. (VIII) to (X) as (X) to (XII), respectively. Subsec. (c)(8)(D)(iv)(I). Pub. L. 109–390, § 2(b)(2), sub- stituted ‘‘or reverse repurchase transaction (whether or not such repurchase or reverse repurchase transaction is a ‘repurchase agreement’, as defined in clause (v))’’ for ‘‘transaction, reverse repurchase transaction’’. Subsec. (c)(8)(D)(vi). Pub. L. 109–390, § 2(c)(2)(C), sub- stituted in concluding provisions ‘‘the Gramm-Leach- Bliley Act, the Legal Certainty for Bank Products Act of 2000, the securities laws (as such term is defined in section 3(a)(47) of the Securities Exchange Act of 1934) and the Commodity Exchange Act’’ for ‘‘the Securities Act of 1933, the Securities Exchange Act of 1934, the Public Utility Holding Company Act of 1935, the Trust Indenture Act of 1939, the Investment Company Act of 1940, the Investment Advisers Act of 1940, the Securi- ties Investor Protection Act of 1970, the Commodity Exchange Act, the Gramm-Leach-Bliley Act, and the Legal Certainty for Bank Products Act of 2000’’. Subsec. (c)(8)(D)(vi)(I). Pub. L. 109–390, § 2(c)(2)(A), substituted ‘‘, precious metals, or other commodity’’ for ‘‘or precious metals’’ and ‘‘weather swap, option, fu- ture, or forward agreement; an emissions swap, option, future, or forward agreement; or an inflation swap, op- tion, future, or forward agreement’’ for ‘‘or a weather swap, weather derivative, or weather option’’. Subsec. (c)(8)(D)(vi)(II). Pub. L. 109–390, § 2(c)(2)(B), in- serted ‘‘or other derivatives’’ after ‘‘dealings in the swap’’ and substituted ‘‘future, option, or spot trans- action’’ for ‘‘future, or option’’. Subsec. (c)(8)(D)(ix). Pub. L. 109–390, § 3(b), added cl. (ix). Subsec. (c)(8)(G)(ii), (iii). Pub. L. 109–390, § 6(b), added cls. (ii) and (iii) and struck out former cl. (ii) which de- fined walkaway clause. Subsec. (c)(13)(C). Pub. L. 109–351, § 718(b), which di- rected addition of subpar. (C) to subsec. (c)(12), was exe- cuted to par. (13) to reflect the probable intent of Con- gress because par. (12) does not contain subpars. and par. (12) was redesignated (13) by Pub. L. 109–8, § 904(b)(1). See 2005 Amendment note below. Subsec. (d)(3). Pub. L. 109–351, § 721(b), added par. (3) and struck out former par. (3) which related to resolu- tion of dispute and adjudication of claims. Subsec. (d)(3)(A). Pub. L. 109–351, § 726(22), which di- rected substitution of ‘‘with’’ for ‘‘to’’ in heading, could not be executed because there is no subpar. (A) heading after the amendment by Pub. L. 109–351, § 721(b). See above. Subsec. (d)(4), (5). Pub. L. 109–351, § 721(b), added par. (4) and struck out former pars. (4) and (5) which related to review of the Board’s final determination and the statute of limitations. Subsec. (f)(3)(A). Pub. L. 109–351, § 726(23), substituted ‘‘category of claimants.’’ for ‘‘category or claimants.’’ in last sentence. Subsec. (k). Pub. L. 109–173, § 2(d)(1)(A), inserted sub- sec. heading. Subsec. (k)(1). Pub. L. 109–173, § 2(d)(1)(A), added par. (1) and struck out former par. (1) which read as follows: ‘‘Subject to the provisions of paragraph (2), for the pur- poses of this subsection, the term ‘insured account’ means the total amount of the account in the member’s name (after deducting offsets) less any part thereof which is in excess of $100,000. Such amount shall be de- termined according to such regulations as the Board may prescribe, and, in determining the amount due to any member, there shall be added together all accounts in the credit union maintained by him for his own ben- efit either in his own name or in the names of others. The Board may define, with such classifications and ex- ceptions as it may prescribe, the extent of the insur- ance coverage provided for member accounts, including member accounts in the name of a minor, in trust, or in joint tenancy.’’ Subsec. (k)(2). Pub. L. 109–173, § 2(d)(1)(B)(ii)–(iv), in- serted par. heading, added subpar. (A), substituted sub- par. (B) designation, heading, and introductory provi- sions for former subpar. (A) designation and introduc- tory provisions which read ‘‘Notwithstanding any limi- tation in this chapter or in any other provision of law relating to the amount of insurance available for the account of any one depositor or member, in the case of a depositor or member who is—’’, redesignated former subpar. (B) as (C), inserted heading, and substituted ‘‘government depositor or member’’ for ‘‘depositor or member referred to in subparagraph (A)’’. Subsec. (k)(2)(A). Pub. L. 109–173, § 2(d)(1)(B)(i), sub- stituted period for semicolon at end of cl. (v), realigned margins of cls. (i) to (v), and struck out concluding pro- visions which read as follows: ‘‘his account shall be in- sured in an amount not to exceed $100,000 per account.’’ Subsec. (k)(3). Pub. L. 109–173, § 2(d)(2), substituted ‘‘ ‘$250,000 (which amount shall be subject to inflation adjustments as provided under section 1821(a)(1)(F) of Page 938 TITLE 12—BANKS AND BANKING § 1787 this title, except that $250,000 shall be substituted for $100,000 wherever such term appears in such section)’ ’’ for ‘‘$100,000’’. Subsec. (k)(4), (5). Pub. L. 109–173, § 2(d)(1)(C), added pars. (4) and (5). 2005—Subsec. (c)(8)(A). Pub. L. 109–8, § 901(h)(2)(A)(i), substituted ‘‘paragraphs (9) and (10)’’ for ‘‘paragraph (12)’’ in introductory provisions. Subsec. (c)(8)(A)(i). Pub. L. 109–8, § 901(h)(2)(A)(ii), substituted ‘‘such person has to cause the termination, liquidation, or acceleration’’ for ‘‘to cause the termi- nation or liquidation’’. Subsec. (c)(8)(A)(ii). Pub. L. 109–8, § 901(h)(2)(A)(iii), added cl. (ii) and struck out former cl. (ii) which read as follows: ‘‘any right under any security arrangement relating to any contract or agreement described in clause (i); or’’. Subsec. (c)(8)(C)(i). Pub. L. 109–8, § 901(i)(2), inserted ‘‘section 91 of this title or any other Federal or State law relating to the avoidance of preferential or fraudu- lent transfers,’’ before ‘‘the Board’’. Subsec. (c)(8)(D). Pub. L. 109–8, § 901(a)(2)(A), sub- stituted ‘‘subsection, the following definitions shall apply:’’ for ‘‘subsection—’’ in introductory provisions. Subsec. (c)(8)(D)(i). Pub. L. 109–8, § 901(a)(2)(B), in- serted ‘‘, resolution, or order’’ after ‘‘any similar agreement that the Board determines by regulation’’. Subsec. (c)(8)(D)(ii). Pub. L. 109–8, § 901(b)(2), reen- acted heading without change and amended text gen- erally. Prior to amendment, text read as follows: ‘‘The term ‘securities contract’— ‘‘(I) has the meaning given to such term in section 741 of title 11, except that the term ‘security’ (as used in such section) shall be deemed to include any mort- gage loan, any mortgage-related security (as defined in section 78c(a)(41) of title 15), and any interest in any mortgage loan or mortgage-related security; and ‘‘(II) does not include any participation in a com- mercial mortgage loan unless the Board determines by regulation, resolution, or order to include any such participation within the meaning of such term.’’ Subsec. (c)(8)(D)(iii). Pub. L. 109–8, § 901(c)(2), amend- ed heading and text of cl. (iii) generally. Prior to amendment, text read as follows: ‘‘The term ‘forward contract’ has the meaning given to such term in sec- tion 101 of title 11.’’ Subsec. (c)(8)(D)(iv). Pub. L. 109–8, § 901(d)(2), amended heading and text of cl. (iv) generally. Prior to amend- ment, text read as follows: ‘‘The term ‘repurchase agreement’— ‘‘(I) has the meaning given to such term in section 101 of title 11, except that the items (as described in such section) which may be subject to any such agreement shall be deemed to include mortgage-re- lated securities (as such term is defined in section 78c(a)(41) of title 15, any mortgage loan, and any in- terest in any mortgage loan; and ‘‘(II) does not include any participation in a com- mercial mortgage loan unless the Board determines by regulation, resolution, or order to include any such participation within the meaning of such term.’’ Subsec. (c)(8)(D)(v). Pub. L. 109–8, § 901(e)(2), amended heading and text of cl. (v) generally. Prior to amend- ment, text read as follows: ‘‘The term ‘transfer’ has the meaning given to such term in section 101 of title 11.’’ Subsec. (c)(8)(D)(vi). Pub. L. 109–8, § 901(f)(2), added cl. (vi). Subsec. (c)(8)(D)(vii). Pub. L. 109–8, § 905(b), added cl. (vii). Subsec. (c)(8)(D)(viii). Pub. L. 109–8, § 901(g)(2), added cl. (viii). Subsec. (c)(8)(E). Pub. L. 109–8, § 902(b)(1)(A), sub- stituted ‘‘other than subsections (b)(9) and (c)(10)’’ for ‘‘other than paragraph (12) of this subsection, sub- section (b)(9)’’ in introductory provisions. Subsec. (c)(8)(E)(ii). Pub. L. 109–8, § 901(h)(2)(B), added cl. (ii) and struck out former cl. (ii) which read as fol- lows: ‘‘any right under any security arrangement relat- ing to such qualified financial contracts; or’’. Subsec. (c)(8)(F), (G). Pub. L. 109–8, § 902(b)(1)(B), added subpars. (F) and (G). Subsec. (c)(8)(H). Pub. L. 109–8, § 908(b), added subpar. (H). Subsec. (c)(9). Pub. L. 109–8, § 903(b)(1), reenacted heading without change and amended text generally. Prior to amendment, text related to the transfer of qualified financial contracts, claims, and property of a credit union in default. Subsec. (c)(10)(A). Pub. L. 109–8, § 903(b)(2), substituted concluding provisions for former concluding provisions which read as follows: ‘‘the conservator or liquidating agent shall use such conservator’s or liquidating agent’s best efforts to notify any person who is a party to any such contract of such transfer by 12:00, noon (local time), on the business day following such trans- fer.’’ Subsec. (c)(10)(B) to (D). Pub. L. 109–8, § 903(b)(3), added subpars. (B) and (C) and redesignated former sub- par. (B) as (D). Subsec. (c)(11). Pub. L. 109–8, § 904(b)(2), added par. (11). Former par. (11) redesignated (12). Subsec. (c)(12). Pub. L. 109–8, § 904(b)(1), redesignated par. (11) as (12). Former par. (12) redesignated (13). Subsec. (c)(12)(A). Pub. L. 109–8, § 902(b)(2), inserted ‘‘or the exercise of rights or powers by’’ after ‘‘the ap- pointment of’’. Subsec. (c)(13), (14). Pub. L. 109–8, § 904(b)(1), redesig- nated pars. (12) and (13) as (13) and (14), respectively. Subsec. (c)(15). Pub. L. 109–8, § 904(b)(3), added par. (15). 1998—Subsec. (a)(1)(A). Pub. L. 105–219, § 301(b)(2)(A), substituted ‘‘itself’’ for ‘‘himself’’. Subsec. (a)(3). Pub. L. 105–219, § 301(b)(2)(B), added par. (3). 1994—Subsec. (c)(8)(D). Pub. L. 103–394 substituted ‘‘section 741’’ for ‘‘section 741(7)’’ in cl. (ii)(I), ‘‘section 101’’ for ‘‘section 101(24)’’ in cl. (iii), ‘‘section 101’’ for ‘‘section 101(41)’’ in cl. (iv)(I), and ‘‘section 101’’ for ‘‘section 101(50)’’ in cl. (v). 1990—Subsec. (b)(2)(G), (H). Pub. L. 101–647, § 2521(a)(2), added subpars. (G) and (H). Former subpar. (G) redesig- nated (I). Subsec. (b)(2)(I). Pub. L. 101–647, § 2534(b), added sub- par. (I). Former subpar. (I) redesignated (J). Pub. L. 101–647, § 2521(a)(2), redesignated subpar. (G) as (I). Subsec. (b)(2)(J). Pub. L. 101–647, § 2534(b), redesig- nated subpar. (I) as (J). Subsec. (b)(16). Pub. L. 101–647, § 2528(b), added par. (16). Subsec. (q). Pub. L. 101–647, § 2526(b), added subsec. (q). Subsec. (r). Pub. L. 101–647, § 2532(d), added subsec. (r). 1989—Subsec. (a)(2), (3). Pub. L. 101–73, § 1217(a)(1), re- designated par. (3) as (2) and struck out former par. (2) which detailed the duties of the Board in serving as liq- uidating agent for bankrupt or insolvent credit unions. Subsec. (b). Pub. L. 101–73, § 1217(a)(3), (4), added sub- sec. (b) and redesignated former subsec. (b) as (j). Subsec. (c). Pub. L. 101–73, § 1217(a)(3), (4), added sub- sec. (c) and redesignated former subsec. (c) as (k). Subsec. (d). Pub. L. 101–73, § 1217(a)(2), (4), added sub- sec. (d) and struck out former subsec. (d) which pro- vided for subrogation by the Board to all rights of a member against a closed credit union to the extent of the Board’s payment to the member. Subsecs. (e) to (i). Pub. L. 101–73, § 1217(a)(3), (4), added subsecs. (e) to (i) and redesignated former subsecs. (e) to (i) as (l) to (p), respectively. Subsec. (j). Pub. L. 101–73, § 1217(a)(2), (3), redesig- nated former subsec. (b) as (j) and struck out former subsec. (j) which provided that the power of the Board respecting liquidations was subject to the Board’s own regulations or to regulations of other public authori- ties. Subsec. (k). Pub. L. 101–73, § 1217(a)(3), (5), redesig- nated former subsec. (c) as (k) and in par. (1), struck out first and fifth sentences which provided that, when- ever an insured credit union was closed for liquidation on account of bankruptcy or insolvency, the Board was to pay insured accounts as soon as possible, and that in such cases the Board could investigate claims, require proof of them, and require determination by a court. Page 939 TITLE 12—BANKS AND BANKING § 1788 Subsec. (k)(1). Pub. L. 101–73, § 915(c), inserted ‘‘may investigate said claims under section 1786(p) of this title,’’ after ‘‘before paying the insured accounts,’’ in last sentence. Subsecs. (l) to (p). Pub. L. 101–73, § 1217(a)(3), redesig- nated former subsecs. (e) to (i) as (l) to (p), respec- tively. 1987—Subsec. (a)(1). Pub. L. 100–86, § 714(a), designated existing provisions as subpar. (A) and added subpar. (B). Subsec. (j). Pub. L. 100–86, § 714(b), redesignated former section 1788(c) of this title as subsec. (j) of this section and substituted ‘‘subject only to the regulation of the Board, or, in cases where the Board has been ap- pointed liquidating agent solely by a public authority having jurisdiction over the matter other than said Board, subject only to the regulation of such public au- thority’’ for ‘‘subject to the regulation of the court or other public body having jurisdiction over the matter’’. 1986—Subsec. (c)(3). Pub. L. 99–514 substituted ‘‘Inter- nal Revenue Code of 1986’’ for ‘‘Internal Revenue Code of 1954’’ wherever appearing, which for purposes of codi- fication was translated as ‘‘title 26’’ thus requiring no change in text. 1980—Subsec. (c)(1). Pub. L. 96–221 substituted ‘‘$100,000’’ for ‘‘$40,000’’. 1979—Subsec. (c)(2)(A)(v). Pub. L. 96–153 added cl. (v). 1978—Subsecs. (a), (b). Pub. L. 95–630, § 502(b), sub- stituted ‘‘Board’’ for ‘‘Administrator’’ wherever appear- ing, ‘‘it’’ for ‘‘he’’ and ‘‘him’’, and ‘‘its’’ for ‘‘his’’, where appropriate. Subsec. (c). Pub. L. 95–630, §§ 502(b), 1401(c), sub- stituted in pars. (1) and (2) ‘‘Board’’ for ‘‘Adminis- trator’’ wherever appearing and ‘‘it’’ and ‘‘its’’ for ‘‘he’’ and ‘‘his’’, respectively, where appropriate, and added par. (3). Subsecs. (d) to (i). Pub. L. 95–630, § 502(b), substituted ‘‘Board’’ for ‘‘Administrator’’ wherever appearing, and ‘‘it’’ and ‘‘its’’ for ‘‘him’’ and ‘‘his’’, respectively, where appropriate. 1974—Subsec. (c)(1). Pub. L. 93–495, §§ 101(c)(1), (2), 104(a), redesignated existing provisions as par. (1), sub- stituted ‘‘Subject to the provisions of paragraph (2), for the purposes of this subsection’’ for ‘‘For the purposes of this subsection’’, and substituted ‘‘$40,000’’ for ‘‘$20,000’’. As enacted section 104(a) of Pub. L. 93–495 amended the first sentence; however the amendment was executed to the second sentence editorially since this would appear to be the probable intent of Congress. Subsec. (c)(2). Pub. L. 93–495, § 101(c)(3), added par. (2). Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2010 AMENDMENT Amendment by section 335(b) of Pub. L. 111–203 effec- tive 1 day after July 21, 2010, except as otherwise pro- vided, see section 4 of Pub. L. 111–203, set out as an Ef- fective Date note under section 5301 of this title. Pub. L. 111–203, title III, § 343(b)(2), July 21, 2010, 124 Stat. 1545, provided that: ‘‘The amendments made by paragraph (1) [amending this section] shall take effect upon the date of the enactment of this Act [July 21, 2010]’’. Pub. L. 111–203, title III, § 343(b)(3), July 21, 2010, 124 Stat. 1545, provided that the amendment made by sec- tion 343(b)(3) is effective Jan. 1, 2013. EFFECTIVE DATE OF 2006 AMENDMENT Amendment by Pub. L. 109–390 not applicable to any cases commenced under Title 11, Bankruptcy, or to ap- pointments made under any Federal or State law, be- fore Dec. 12, 2006, see section 7 of Pub. L. 109–390, set out as a note under section 101 of Title 11. Amendment by Pub. L. 109–173 effective Apr. 1, 2006, see section 2(e) of Pub. L. 109–173, set out as a note under section 1785 of this title. EFFECTIVE DATE OF 2005 AMENDMENT Amendment by Pub. L. 109–8 effective 180 days after Apr. 20, 2005, and not applicable with respect to cases commenced under Title 11, Bankruptcy, before such ef- fective date, except as otherwise provided, see section 1501 of Pub. L. 109–8, set out as a note under section 101 of Title 11. EFFECTIVE DATE OF 1994 AMENDMENT Amendment by Pub. L. 103–394 effective Oct. 22, 1994, and not applicable with respect to cases commenced under Title 11, Bankruptcy, before Oct. 22, 1994, see sec- tion 702 of Pub. L. 103–394, set out as a note under sec- tion 101 of Title 11. EFFECTIVE DATE OF 1980 AMENDMENT Amendment by Pub. L. 96–221 effective on Mar. 31, 1980, see section 308(e) of Pub. L. 96–221, set out as a note under section 1817 of this title. APPLICABILITY OF 1980 AMENDMENT Pub. L. 96–221, title III, § 308(c)(2), Mar. 31, 1980, 94 Stat. 148, provided that: ‘‘The amendment made by this subsection [amending this section] is not applicable to any claim arising out of the closing of a credit union for liquidation on account of bankruptcy or insolvency pursuant to section 207 of the Federal Credit Union Act (12 U.S.C. 1787) prior to the effective date of this section [see section 308(e) of Pub. L. 96–221, set out as an Effec- tive Date of 1980 Amendment note under section 1817 of this title].’’ EFFECTIVE DATE OF 1979 AMENDMENT Amendment by Pub. L. 96–153 applicable only to claims arising after Dec. 21, 1979, with respect to a clos- ing of a bank, etc., see section 323(e) of Pub. L. 96–153, set out as an Effective and Termination Dates of 1979 Amendment note under section 1728 of this title. EFFECTIVE DATE OF 1978 AMENDMENT Amendment by section 502(b) of Pub. L. 95–630 effec- tive on expiration of 120 days after Nov. 10, 1978, and transitional provisions, see section 509 of Pub. L. 95–630, set out as a note under section 1752 of this title. Pub. L. 95–630, title XIV, § 1402, Nov. 10, 1978, 92 Stat. 3713, provided that: ‘‘This title [amending this section and sections 1728 and 1821 of this title] shall take effect upon enactment [Nov. 10, 1978].’’ EFFECTIVE DATE OF 1974 AMENDMENT For effective date of amendment by section 101(c)(1), (2) of Pub. L. 93–495 see section 101(g) of Pub. L. 93–495, set out as a note under section 1813 of this title. Pub. L. 93–495, title I, § 104(b), (c), Oct. 28, 1974, 88 Stat. 1503, provided that: ‘‘(b) The amendment made by this section [amending this section] is not applicable to any claim arising out of the closing of a credit union for liquidation on ac- count of bankruptcy or insolvency pursuant to section 207 of title II of the Federal Credit Union Act (12 U.S.C. 1787) prior to the effective date of this section. ‘‘(c) The amendment made by this section shall take effect on the thirtieth day beginning after the date of enactment of this Act [Oct. 28, 1974.].’’ TEMPORARY ADJUSTMENT IN STANDARD MAXIMUM SHARE INSURANCE AMOUNT Subsec. (k)(5) of this section to apply with ‘‘$250,000’’ substituted for ‘‘$100,000’’ during period beginning on Oct. 3, 2008, and ending on Dec. 31, 2009, see section 5241(b)(1) of this title. § 1788. Special assistance to avoid liquidation (a) Loans; purchase of assets; accounts; agree- ments affecting interest of Board in any asset acquired by it (1) In order to reopen a closed insured credit union or in order to prevent the closing of an in- sured credit union which the Board has deter-