consistent with FIRREA.See 12 U.S.C.... § 1821(d)(10)(A); 12 U.S.C. § 1821(i)(2).
From this, the FDIC summarily states that Midlantic cannot pursue the money judgment beyond the procedures described above because of FIRREA's "exclusive and preemptive" nature. Aside from the fact that it is not clear whether FIRREA is preemptive in this area, cf. Resolution Trust Corp. v. Diamond, 801 F. Supp. 1152 (S.D.N.Y. 1992) (FIRREA not preemptive of state rent and securities laws), Midlantic appears to seek to pursue the money judgment within the strictures of FIRREA.... As Midlantic points out, FIRREA requires the FDIC to "abide by any final unappealable judgment of any court of competent jurisdiction which was rendered prior to the appointment of the [FDIC as receiver]." 12 U.S.C.... § 1821(d)(13)(A).... Thus, FIRREA requires the FDIC to "abide by" the money judgment.... Of course, this raises the question of whether the FDIC has done so.
Midlantic obtained the money judgment and then served the Restraining Notice on the Federal Reserve.... As the FDIC correctly points out, the Restraining Notice prohibits the transfer of property but does not create a lien or give a special priority; accordingly, the Restraining Notice prevented the Federal Reserve from transferring funds but gave Midlantic no priority as to the distribution of the funds.See Aspen Indus. v. Marine Midland Bank, 52 N.Y.2d 575, 439 N.Y.S.2d 316, 421 N.E.2d 808... (Ct. App. 1981). Placed in this context, the FDIC's action -- issuance of the Receiver's Certificate -- appears to abide by Midlantic's receipt of the money judgment.
Moreover, whatever the effect of the Restraining Notice,
Midlantic could not take action against CNB's assets after the FDIC was appointed receiver.See 12 U.S.C. § 1825(b)(2) (no levy, attachment, garnishment, foreclosure, or sale of "property of the [FDIC]").... Accordingly, the Restraining Notice does not aid Midlantic in any manner.... In fact, the Restraining Notice expired in October 1992, one year after service, pursuant to N.Y. Civ. Prac. L. & R. 5222(b) (McKinney 1978).
Thus, Midlantic is not entitled to any relief beyond what the FDIC has given it -- a Receiver's Certificate for the full amount of the money judgment.... The FDIC has abided by the money judgment and complied with FIRREA, and the Restraining Notice does not affect the FDIC's obligations.... If the Court were to allow Midlantic to proceed on the money judgment at this time, Midlantic would effectively circumvent the statutory procedures established in order to allow equitable distribution of an insolvent bank's assets; the Court obviously cannot sanction such a renegade procedure.
For the reasons stated above, the FDIC's motion for summary judgment is granted, and Midlantic's cross-motion is denied.... In addition, the money judgment is declared satisfied pursuant to Fed. R. Civ. P. 60(b)(5), and the Restraining Notice is declared null and void.... The parties shall bear their own costs.
Dated: New York, New York
February 23, 1993
Loretta A. Preska, U.S.D.J....