For the sake of clarity, only the Receivership, and thus FDIC-Receiver, is liable with respect to Count I. That count seeks payment from the Receivership estate pursuant to 12 U.S.C. § 1821(d)(11). Case 1:09-cv-00533-RMC Document 42 Filed 07/16/2009 Page 47 of 59 US_ACTIVE:\43094538\19\43094538_19.DOC\. 36 several grounds. First, Federal Rule of Civil Procedure 8(a)(2) does not require Plaintiffs to plead with the specificity that FDIC-Corporate advocates.

” Section 91 of the NBA, 12 U.S.C. § 91, invalidates transfers made “with a view to prevent the application of assets in the manner prescribed by [the NBA].” Case 1:09-cv-00533-RMC Document 48 Filed 08/06/2009 Page 15 of 26 10 value of their claims, those cases were effectively overruled on that point by section 1821(i)(2).” Branch, 825 F. Supp. at 414.7 As Branch makes clear, section 1821(i)(2) has exactly the opposite effect from plaintiffs’ reading of it. The section limits the FDIC’s liability to receivership creditors and does not,

Case 1:09-cv-00533-RMC Document 25 Filed 06/11/09 Page 21 of 36 15 Cort, allowing the plaintiffs to bring this action would fundamentally undermine the scheme Congress sought to create, as the Mosseri court observed: [T]he larger statutory structure . . . supports the conclusion that Congress did not intend to imply a private right of action . . . under § 1821(d)(13)(E)(i) – (iii).

The FDIC contends that allegations seeking superiority should be stricken as “statutorily barred and lacking a legal basis” because administrative priority is an unavailable remedy by application of 12 U.S.C. § 1821(j). As discussed earlier the FDIC is not entitled to the protection of 12 U.S.C. § 1821(j) because it seeks to benefit from conduct that is statutorily prescribed and thus can seek an Case 2:09-cv-03852-GAF-FFM Document 47 Filed 07/19/10 Page 37 of 38 Page ID #:542 MORGAN, LEWIS & BOCKIUS LLP ATTORNEYS AT LAW PALO ALTO 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DB2/21828976.1 30 PLAINTIFF’S OPPOSITION TO MOTION TO DISMISS AND TO STRIKE administrative priority, i.e., it not only improperly severed a QFC, it also breached the Governing Agreements. See Compl.

See also Callejo v. Resolution Trust Corp., 17 F.3d 1497, 1499 (D.C. Cir. 1994) (explaining process for filing deposit insurance claims against FDIC-Corporate under Section 1821(f)); Villafane-Neriz v. FDIC, 75 F.3d 727, 729 n.1 (1st Cir. 1996) (noting that, "[i]n its corporate capacity, the FDIC functions as a bank regulator and insurer of bank deposits") (emphasis added). Case 2:11-cv-00133-MHT Document 61 Filed 01/16/12 Page 31 of 45 - 25 -2242375_1 subrogation rights with respect to the amount of the insurance payment pursuant to 12 U.S.C. § 1821(g)(1). iii.

Id. at *4 (quoting 12 U.S.C. § 1821(d)(13)(D)(ii)). The court therefore held that, “[h]aving failed to invoke and exhaust this administrative process, Plaintiffs’ claims are barred by the Act” because the plaintiffs “cannot circumvent the Act’s jurisdictional bar by aiming their claims at the assuming bank of the failed bank’s assets.”

See 12 U.S.C. § 1821(d)(6)(A); Freeman v. F.D.I.C., 56 F.3d at 1400-02. Further, only this Court, not the Bankruptcy Court, has jurisdiction over all of the issues and all of the parties to enable a complete resolution of these disputes.

“An insurance policy is of value to the owner and named insured of the policy, even though it is possible that the owner and named insured will ultimately be found not to be entitled to a particular recovery under the policy.” Nat’l Union, 28 F.3d at 384 (concluding that insurance policies were “assets” of failed bank that triggered jurisdictional bar of 12 U.S.C. § 1821(d)(13)(D)(i)). FIRREA expressly limits actions seeking a determination of rights under such policies, as between a failed bank and another insured, to those permitted through the statutory receivership claims process.

16 In Atherton v. FDIC, 519 U.S. 213, 227 (1997), the Supreme Court later rejected the approach Said took, holding that § 1821’s “gross negligence standard provides only a floor” and “does not stand in the way of a stricter standard that the laws of some States provide.” Case: 1:10-cv-07009 Document #: 99 Filed: 03/18/11 Page 25 of 53 PageID #:528 18 alleges Defendants were “aware of the existence of a real estate bubble,” (Compl. ¶ 21), and they had the UBPRs, which, as explained above, showed Heritage had mounting past due and nonaccrual loans, far beyond those of its peer banks, all while its ALLL was far lower than that of its peer banks. The FDIC’s allegations that Defendants improperly continued their risky behavior when faced with such warnings do not rest on “hindsight,” they establish gross negligence. Contrast that with Belmont Holdings Corp. v. SunTrust Banks, Inc., 1:09-cv-1185-WSD, 2010 U.S. Dist. LEXIS 94569 (N.D. Ga. Sept. 10, 2010), the main case the Director Defendants cite.

That issue has no bearing on the automatic stay provided for under section 362 of the Bankruptcy Code. Case 2:10-cv-00410-MHT-WC Document 34 Filed 07/30/10 Page 19 of 21 15 litigate in its favored forum does not raise any policy issue that “Congress could not rationally have intended” when it enacted 12 U.S.C. § 1821(d)(13)(D). The bankruptcy courts have operated without interruption since FIRREA was enacted in 1989, even as the various Circuits of the United States Court of Appeals have construed the jurisdictional bar strictly in accordance with the plain language of section 1821(d)(13)(D).