The opinion of the court was delivered by: Haight, District Judge:
MEMORANDUM OPINION AND ORDER
This case requires the Court to consider the impact of the
administrative claims procedures contained in the Financial
Institutions Reform, Recovery, and Enforcement Act of 1989
("FIRREA"), 12 U.S.C. § 1821(d), upon the retaining and
charging liens of attorneys who rendered services to an
insolvent national banking association.
On December 20, 1989 the United States Comptroller of the
currency declared the First City National Bank and Trust
Company (the "Bank"), a national banking association, to be
insolvent. The Comptroller appointed the Federal Deposit
Insurance Corporation ("FDIC") receiver of the Bank.
The Bank had been represented in various legal matters by
the firm of Ross & Hardies (the "Firm").
On February 7, 1990 the FDIC made written demand on the Firm
for files in two litigated matters in which the Firm had
represented the Bank prior to its insolvency. The FDIC also
called upon the Firm to prepare necessary substitution of
counsel forms for those matters. The Firm failed to comply
with those demands.
On March 29, 1990 the Firm filed a claim as an unsecured
creditor in the amount of $92,358 with the FDIC as receiver of
the Bank. The FDIC allowed that claim, and has paid a dividend
of 31% to the Firm.
On April 25, 1990 the FDIC made written demand on the Firm
for the files relating to eight additional litigated matters
in which the Firm had represented the Bank, and asked that the
Firm prepare substitution of counsel forms for those matters
as well. A spokesperson for the Firm, Peter Livingston, Esq.,
advised in a telephone discussion with a staff attorney for
the FDIC that the Firm would not comply with the agency's
request and claimed an attorney's lien on the files.
The FDIC could not persuade the Firm to retreat from that
position in subsequent conversations and mailings. The FDIC
therefore brought a motion before Part I of this Court for an
order directing the Firm to turn over to the FDIC all files in
its possession relating to the ten litigated matters; to
deliver to the FDIC executed substitutions of counsel in those
cases; and to refrain from taking any action on behalf of the
Bank or FDIC without specific written authorization from FDIC.
The FDIC opposes the firm's motion for interpleader relief,
and presses its own original motion. Both motions have been
briefed and argued. This Opinion resolves them both.
Congress enacted FIRREA, effective as of August 9, 1989, to
supplement earlier federal statutes regulating banks, and to
provide a detailed regulatory framework to deal with the major
difficulties confronting the thrift and banking industries.
See Circle Industries v. City Federal Savings Bank, 749 F. Supp. 447,
451 (E.D.N.Y. 1990).
Under the statutory scheme, the FDIC becomes the receiver of
a failed bank. The power of the Comptroller of the Currency to
appoint receivers derives from the Act of May 15, 1916,
12 U.S.C. § 192. The FDIC, created by the Act of September 21,
1950, 12 U.S.C. § 1811 et seq., acts as receiver pursuant to §
1821(c). FIRREA's more recent contributions to the statutory
scheme are twofold. First, it establishes administrative
procedures for adjudicating claims in the first instance
asserted against the FDIC as receiver of a failed bank. See
12 U.S.C. § 1821(d)(5)-(14). Second, FIRREA contains provisions
specifically delineating the scope and form of judicial review
of the agency's disallowance of claims asserted against it in
its capacity as receiver. § 1821(d)(6), (13)(D).
FIRREA gives the FDIC authority to determine claims against
failed banks, ¶ 1821(d)(3)(A), in accordance with the
requirements of the statute and regulations promulgated by the
agency under rulemaking authority conferred by § 1821(d)(4). §
Before the end of the 180-day period beginning on
the date any claim against a depository
institution is filed with the Corporation as
receiver, the Corporation shall determine whether
to allow or disallow the claim and shall notify
the claimant of any determination with respect to
FIRREA's provisions for judicial review appear in
subsections 1821(d)(6) and (13)(D). Subsection ...