A. Plaintiff Has No Substantial Likelihood of Success on the Merits For the reasons set forth above, see §§ I & II, supra, Plaintiff cannot demonstrate that it has any likelihood of success on the merits. Plaintiff’s claim is barred by 12 U.S.C. § 1818(i)(1), and in there is no “fund, or res, within the control of the court, to which the lien could attach.” Daniel Mones, P.A., 486 So.2d at 562.

7. Since June 10,2012, the Bank has operated under the May 31, 2012 Consent Order issued pursuant to 12 U.S.C S 1818(b). Notwithstanding the Consent Order, unsafe or unsound practices and violations oflaw, rules or regulations have occurred and continue to occur, requiring immediate remedial action.

Section 1818 authorizes the Comptroller of - 28 - the Currency to institute administrative proceedings culminating in cease-and-desist orders where the “the agency has reasonable cause to believe that the depository institution or any institution-affiliated party is about to violate, a law, rule, or regulation” (12 U.S.C. § 1818(b)(1)), and to issue temporary cease-and-desist orders that are effective upon service on the depository institution (12 U.S.C. § 1818(c)). Section 1818 further provides that the agency may impose tiered penalties upon the depository agency for violation of any law, regulation or order, and the agency may apply to the district court for enforcement of any effective and outstanding notice or order. (12 U.S.C. § 1818().) Recently, section 4309 was amended by the Consumer Financial Protection Act of 2010. (Pub.L. No. 111-203 (Jul. 21, 2010) Title X, §1100B(1), 1100H, 124Stat.

The AC-1 never specifies a single indemnification, let alone does it allege that the 54 Prior to FIRREA, bank regulatory agencies could assess civil money penalties against a depository institution only when the institution violated a final cease and desist order. 12 U.S.C. § 1818(i)(2) (1988). 55 Given that the AC-1 relies on the exact same alleged conduct to support both the FCA and FIRREA claims, there is no compelling reason for the Court to accept the United States‘ ―affect yourself‖ FIRREA theory in this case.

Plaintiff’s equal protection claim also fails because there are at least two rational bases behind § 1693o-2(a)(6), each of which is sufficient for the Court to reject Plaintiff’s claim. Plaintiff’s claims against the OCC should also be dismissed because 12 U.S.C. § 1818(i)(1) deprives the Court of jurisdiction to grant the relief Plaintiff seeks against the OCC. C. Plaintiff Has Not Shown Irreparable Harm In addition to not showing a likelihood of success on the merits, Plaintiff is not threatened with irreparable harm.

In any event, to the extent the legislative history reflects any concern about misconduct by federally insured financial institutions, the focus was on mismanagement and failure to comply with safety and soundness regulations, which Congress addressed in FIRREA § 907, 103 Stat. at 462-63 (amending 12 U.S.C. § 1818(i)); see also H.R. Rep. No. 101-54, Pt. 1, at 393-94, 1989 U.S.C.C.A.N. at 189-90; supra pp. 2-3 (summarizing amendments).

In addition, the OCC is required by statute to publicly disclose all final orders and enforcement agreements. See 12 U.S.C. § 1818(u)(1)(B). Since the OCC is required by law to make this disclosure, the agency’s disclosure of these materials cannot give rise to liability under the FTCA.

Id. (―A directive issued pursuant to this section . . . is enforceable in the same manner and to the same extent as a final cease-and-desist order issued under 12 U.S.C. 1818(b)). The Bank MOU is obviously not a cease-and-desist order.

Id. (―A directive issued pursuant to this section . . . is enforceable in the same manner and to the same extent as a final cease-and-desist order issued under 12 U.S.C. 1818(b)). The Bank MOU is obviously not a cease-and-desist order.

d that the specific limitation on jurisdiction set forth in title 12 “trump[ed]” the more general bankruptcy provision of 28 U.S.C. § 1334(b). Landmark 7 Section 1818(i)(1) provides: (1) The appropriate Federal banking agency may in its discretion apply to the United States district court, or the United States court of any territory, within the jurisdiction of which the home office of the depository institution is located, for the enforcement of any effective and outstanding notice or order issued under this section or under section 1831o or 1831p-1 of this title, and such courts shall have jurisdiction and power to order and require compliance herewith; but except as otherwise provided in this section or under section 1831o or 1831p-1 of this title no court shall have jurisdiction to affect by injunction or otherwise the issuance or enforcement of any notice or order under any such section, or to review, modify, suspend, terminate, or set aside any such notice or order 12 U.S.C. § 1818(i)(1). Case 2:10-cv-00410-MHT-WC Document 34 Filed 07/30/10 Page 18 of 21 14 Land, 948 F.2d at 912 (quoting Gozlon-Peretz v. United States, 498 U.S. 395, 407 (1991) (“[a] specific provision controls over one of more general application.”))