2023 New York Laws › BNK - Banking › Article 13 - Merger; Voluntary Dissolution; Superintendent's Taking Possession; Reorganization; Liquidation › 619 - Prosecution and Defense of Actions; Actions Preferred; Limitations; Power to Execute Instruments; Exemption From Filing and Other Fees.

§ 619.   Prosecution   and  defense  of  actions;  actions  preferred;
limitations; power to execute instruments;  exemption  from  filing  and
other  fees.  1.  (a) For the purpose of executing any of the powers and
performing  any  of  the  duties  hereby   conferred   upon   him,   the
superintendent  may, in the name of any banking organization of which he
is in possession, prosecute and defend any and  all  actions.  Any  such
action, upon application of the superintendent, shall be entitled to the
same preference to which an action by or against a receiver appointed by
the  court  is entitled in any court of the state. Except as provided in
the civil practice law and rules for venue for  real  property  actions,
all  actions  against  a  banking  organization in the possession of the
superintendent or against the superintendent arising out of its affairs,
shall be instituted and maintained in a court of record in the county in
which such  banking  organization  maintained  its  principal  place  of
business.
(b)  If  the  superintendent  takes  possession  of  the  business and
property of any banking organization entitled  to  maintain  an  action,
before  the expiration of the time limited for the commencement thereof,
such action may be commenced by the superintendent in the name  of  such
banking  organization  before  the expiration of that time or within one
year after taking such possession, whichever date is later.
(c) Where by any  agreement  a  period  of  limitation  is  fixed  for
instituting  an  action  upon any claim, or for presenting or filing any
claim, proof of claim, proof of loss, demand, notice, or  the  like,  or
where  in  any action or by statute or ordinance, a period of limitation
is fixed for serving or filing any claim or pleading, taking any appeal,
or doing any other act, and where in any such case such period  had  not
expired at the date of taking possession of the business and property of
any such banking organization, the superintendent may for the benefit of
such  banking  organization institute any such action, serve or file any
such claim or pleading, take any such appeal, or do any such other  act,
required  or  permitted  to such banking organization within a period of
one year subsequent to the date of taking of such possession, or  within
such  further  period  as  may  be permitted by the agreement, or in the
action, or by statute or ordinance, as the case may be.
(d) (1) Except as provided  in  this  paragraph,  unless  the  federal
regulator  or  insurer  is  appointed  as  receiver  or  liquidator, the
superintendent's taking of possession of any  banking  organization  and
the  liquidation of same shall operate as a stay of and as an injunction
against, as of the date  the  superintendent  takes  possession  of  the
banking organization, applicable to all persons or entities, of:
(i)  The  commencement  or  continuation,  including  the  issuance or
employment of process, of a judicial, administrative, or other action or
proceeding against the banking organization that was or could have  been
commenced before the taking of possession, or to recover a claim against
the banking organization that arose before the taking of possession;
(ii) The enforcement, against the banking organization or the business
and  property  of  the banking organization in this state, of a judgment
obtained before the taking of possession;
(iii) Any  act  to  obtain  possession  of  property  of  the  banking
organization or of property from the banking organization or to exercise
control over property of the banking organization;
(iv)  Any act to create, perfect, or enforce any lien against property
of the banking organization;
(v) Any act to create, perfect or  enforce  against  property  of  the
banking  organization  any  lien  to the extent that such lien secures a
claim that arose before the taking of possession; and
(vi) Any act to collect,  assess,  or  recover  a  claim  against  the
banking organization that arose before the taking of possession.
(2)   The   superintendent's   taking   of  possession  of  a  banking
organization and the liquidation of same does not operate as a  stay  of
or as an injunction against:
(i)  The  filing  of a claim pursuant to section six hundred twenty of
this article in the liquidation of the banking organization; the  making
of  a  demand  upon  the  superintendent pursuant to section six hundred
eighteen-a of this article to decide whether to assume  or  repudiate  a
contract  of  the  banking  organization;  the  exercise  of  any setoff
otherwise  permissible  under  applicable  law  except  as  limited   by
subdivision  two  of  section  six  hundred fifteen of this article; the
right of any secured creditor with  a  perfected  security  interest  or
other  valid lien or security interest enforceable against third parties
to retain collateral, including any right of such secured creditor under
any security arrangement related to a qualified financial  contract,  as
defined  in  section  six  hundred eighteen-a of this article, to retain
collateral and to apply such collateral in accordance with paragraph (d)
of subdivision two of section six hundred eighteen-a  of  this  article;
any  automatic termination in accordance with the terms of any qualified
financial contract or any right to cause the termination or  liquidation
of  any  qualified financial contract, as defined in section six hundred
eighteen-a of this article, in accordance with the  terms  thereof;  any
right  to  offset  or  net out any termination value, payment amount, or
other transfer obligation arising under or in  connection  with  one  or
more  such  qualified  financial  contracts;  or  the commencement of an
action under section six hundred seven of  this  article  or  any  other
action  relating  to  the  liquidation  before the supreme court justice
overseeing the liquidation of the banking organization;
(ii)  The  commencement  or  continuation  of  a  criminal  action  or
proceeding against the banking organization;
(iii) The commencement or continuation of an action or proceeding by a
governmental   unit  to  enforce  such  governmental  unit's  police  or
regulatory power;
(iv) The enforcement of a  judgment,  other  than  a  money  judgment,
obtained  in  an  action or proceeding by a governmental unit to enforce
such governmental unit's police or regulatory power;
(v) The issuance to the banking organization by a governmental unit of
a notice of tax deficiency; and
(vi)  The  commencement  or  continuation  of  a  judicial  action  or
proceeding  by a secured creditor with a perfected security interest, or
other valid lien or security interest enforceable against third parties,
including  any  right  of  such  secured  creditor  under  any  security
arrangement  related  to  a  qualified financial contract, as defined in
section six hundred eighteen-a of this article, to enforce such security
interest or lien.
(3) Except as otherwise provided in this paragraph:
(i) The stay or enjoining of an act against property  of  the  banking
organization  under this paragraph shall continue until such property is
no longer the property  of  the  superintendent  in  possession  of  the
banking organization; and
(ii) The stay or enjoining of any other act under this paragraph shall
continue  until the superintendent has concluded liquidating the banking
organization.
(4) For good cause shown, on request of a party in interest and  after
notice   and  a  hearing,  the  supreme  court  justice  overseeing  the
liquidation may grant relief from the stay or injunction provided  under

this   paragraph,  such  as  by  terminating,  annulling,  modifying  or
conditioning such stay or injunction.
(5)  In  the  case  of  any  willful violation of a stay or injunction
provided in this paragraph by any person or entity who has knowledge  of
the  superintendent's  taking  of possession of the banking organization
that is the subject of the stay or injunction, the superintendent  shall
recover  actual  damages,  including  costs  and attorneys' fees and, in
appropriate circumstances, may recover punitive damages.
(e) No action against the superintendent, his or her deputies, special
deputies,  attorneys,  agents  or  employees,  or  against   a   banking
organization  whose business and property have been taken over by him or
her, with  respect  to  any  matter  arising  out  of  the  liquidation,
administration, distribution or other disposition by or on behalf of the
superintendent
(i) of the estate of such banking organization, or
(ii)  of  money  or property in its possession or under its control as
executor, administrator, trustee, guardian, committee,  conservator,  or
other  fiduciary  capacity,  or as bailee, pledgee, depository, agent or
otherwise, or
(iii) of money or property in or removed from a safe, vault or box  of
which  it  is or was the lessor, shall be commenced subsequent to either
(a) three years after the accrual of such cause of action,  or  (b)  the
expiration  of  such period of limitation as may be otherwise applicable
thereto under the provisions of any other statute, whichever  period  is
shorter.  A cause of action shall be deemed to accrue within the meaning
of this paragraph, when the facts upon which such  cause  of  action  is
based  come into existence. Nothing in this paragraph shall be deemed to
extend or otherwise affect the  period  of  limitation  in  section  six
hundred  twenty-five  of this article provided with respect to claims or
causes of action therein referred to.
2. (a) The superintendent may, in the name of any banking organization
of which he is in possession, execute, acknowledge and deliver  any  and
all   deeds,   assignments,   bills   of   sale,  releases,  extensions,
satisfactions and other instruments necessary and proper  to  effectuate
any  sale,  lease  or  transfer of real or personal property or to carry
into effect any power conferred or duty imposed upon him by this article
or by order of the supreme court. Any instrument  executed  pursuant  to
the  authority  hereby  given  shall  be  as valid and effectual for all
purposes as though executed by the officers of the banking organization.
(b) The superintendent shall not be required to pay  any  fee  to  any
clerk,  sheriff,  register or other public officer for entering, filing,
docketing,  registering,   recording,   executing,   issuing   a   copy,
transcript, extract or certificate of, or authenticating or exemplifying
any  paper,  record  or  instrument  pertaining  to  the exercise by the
superintendent of any of the powers conferred or duties imposed upon him
by any of the provisions of this article, whether  or  not  such  paper,
record  or  instrument  be executed by the superintendent and whether or
not it is connected with an action.
3. The word "action" contained in this section and section six hundred
twenty-five of this article is to be construed as  including  a  special
proceeding  or any proceeding therein or in an action. A cause of action
upon which an  action  cannot  be  maintained,  as  prescribed  in  this
article,  cannot  be  effectually  interposed  as  a defense, set-off or
counterclaim.