12 U.S.C. § 5229

Judicial review and related matters

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(a) Judicial review(1) Standard

Actions by the Secretary pursuant to the authority of this chapter shall be subject to chapter 7 of title 5, including that such final actions shall be held unlawful and set aside if found to be arbitrary, capricious, an abuse of discretion, or not in accordance with law.

(2) Limitations on equitable relief(A) Injunction

No injunction or other form of equitable relief shall be issued against the Secretary for actions pursuant to section 11 So in original. Probably should be “sections”. 5211, 5212, 5216, and 5219 of this title, other than to remedy a violation of the Constitution.

(B) Temporary restraining order

Any request for a temporary restraining order against the Secretary for actions pursuant to this chapter shall be considered and granted or denied by the court within 3 days of the date of the request.

Any request for a preliminary injunction against the Secretary for actions pursuant to this chapter shall be considered and granted or denied by the court on an expedited basis consistent with the provisions of rule 65(b)(3) of the Federal Rules of Civil Procedure, or any successor thereto.

(D) Permanent injunction

Any request for a permanent injunction against the Secretary for actions pursuant to this chapter shall be considered and granted or denied by the court on an expedited basis. Whenever possible, the court shall consolidate trial on the merits with any hearing on a request for a preliminary injunction, consistent with the provisions of rule 65(a)(2) of the Federal Rules of Civil Procedure, or any successor thereto.

(3) Limitation on actions by participating companies

No action or claims may be brought against the Secretary by any person that divests its assets with respect to its participation in a program under this chapter, except as provided in paragraph (1), other than as expressly provided in a written contract with the Secretary.

(4) Stays

Any injunction or other form of equitable relief issued against the Secretary for actions pursuant to section ¹ 5211, 5212, 5216, and 5219 of this title, shall be automatically stayed. The stay shall be lifted unless the Secretary seeks a stay from a higher court within 3 calendar days after the date on which the relief is issued.

(b) Related matters(1) Treatment of homeowners’ rights

The terms of any residential mortgage loan that is part of any purchase by the Secretary under this chapter shall remain subject to all claims and defenses that would otherwise apply, notwithstanding the exercise of authority by the Secretary under this chapter.

(2) Savings clause

Any exercise of the authority of the Secretary pursuant to this chapter shall not impair the claims or defenses that would otherwise apply with respect to persons other than the Secretary. Except as established in any contract, a servicer of pooled residential mortgages owes any 22 So in original. Probably should be “a”. duty to determine whether the net present value of the payments on the loan, as modified, is likely to be greater than the anticipated net recovery that would result from foreclosure to all investors and holders of beneficial interests in such investment, but not to any individual or groups of investors or beneficial interest holders, and shall be deemed to act in the best interests of all such investors or holders of beneficial interests if the servicer agrees to or implements a modification or workout plan when the servicer takes reasonable loss mitigation actions, including partial payments.

(Pub. L. 110–343, div. A, title I, § 119, Oct. 3, 2008, 122 Stat. 3787.)Editorial NotesReferences in Text

This chapter, referred to in text, was in the original “this Act” and was translated as reading “this division”, meaning div. A of Pub. L. 110–343, Oct. 3, 2008, 122 Stat. 3765, known as the Emergency Economic Stabilization Act of 2008, to reflect the probable intent of Congress. For complete classification of division A to the Code, see Short Title note set out under section 5201 of this title and Tables.

The Federal Rules of Civil Procedure, referred to in subsec. (a)(2)(C), (D), are set out in the Appendix to Title 28, Judiciary and Judicial Procedure.

Notes of Decisions

Cited in 12 cases, 2009–2019 · leading case: Shore Bank v. Harvard, 934 F. Supp. 2d 827 (E.D. Va. 2013).

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Shore Bank v. Harvard, 934 F. Supp. 2d 827 (E.D. Va. 2013). · cites it 11× “Specifically, Plaintiffs assert (1) that Harvard’s threatened state law breach' of contract suit is, at its core, a challenge to TARP’s prohibition on “golden parachute payments,” and (2) that Harvard’s potential claims include a federal lawsuit pursuant to 12 U.S.C. § 5229 for…”

Pantoja v. Countrywide Home Loans, Inc., 640 F. Supp. 2d 1177 (N.D. Cal. 2009). · cites it 2× “12 U.S.C. § 5229 . This right of action is limited to causes of action to which there is no other adequate remedy in court.”

U. S. Bank, N.A. v. Phillips, 734 S.E.2d 799 (Ga. Ct. App. 2012). · cites it 2× “LEXIS 55777, at *6-9 (III) (A) (1) (applying Georgia law and ruling that homeowners are mere incidental beneficiaries who lack standing to enforce the HAMP Agreements on a breach of contract theory).”

Paul Mik, Jr. v. Fed. Home Loan Mortg. Corp., 743 F.3d 149 (6th Cir. 2014). “Congress provided a private right of action against the Secretary for those harmed by the Secretary’s actions, but it did not provide a private right of action against individuals or non-governmental entities who violate TARP’s provisions.”

Davis v. Citibank, 116 A.D.3d 819 (N.Y. App. Div. 2014). · cites it 2× “As to the third factor, the EESA expressly provides for civil actions by the Secretary of the Treasury (see 12 USC § 5229 [a] [1]) and for actions seeking equitable relief against the Secretary of the Treasury (see 12 USC § 5229 [a] [2], [3]), but makes no reference to private…”

Shirk v. JPmorgan Chase Bank, N.A. (In Re Shirk), 437 B.R. 592 (Bankr. S.D. Ohio 2010). · cites it 2× “12 U.S.C. § 5229 . Section 5229(a) gives a private right of action to individuals specifically harmed by the Secretary’s actions, allowing courts to set aside the Secretary’s action “if found to be arbitrary, capricious, an abuse of discretion or not in accordance with the law.”

Mosley v. Wells Fargo Bank, N.A., 802 F. Supp. 2d 695 (E.D. Va. 2011). “11, 2010) (“The applicable statute, 12 U.S.C. § 5229 , does not expressly create a private right of action against participating mortgage servicers.”

Molina v. Aurora Loan Servs., LLC, 635 F. App'x 618 (11th Cir. 2015). “See 12 U.S.C. § 5229 . The Supreme Court has held that “where a statute by its terms grants no private rights to any identifiable class,” the question of whether the statute creates a private right of action “is definitely answered in the negative.”

Texans Against Governmental Waste & Unconstitutional Governmental Conduct v. United States Dep't of the Treasury, 619 F. Supp. 2d 274 (N.D. Tex. 2009). “See 12 U.S.C. § 5229 (2)(B). Because Plaintiffs failed to bring this limitation to the Court’s attention in their motion, the Court did not rule on the motion in the required time.”

U. S. Bank v. Otis Phillips (Ga. Ct. App. 2012). · cites it 2× “LEXIS 55777 , at * 6-9 (III) (A) (1) (applying Georgia law and ruling that homeowners are mere incidental beneficiaries who lack standing to enforce the HAMP Agreements on a breach of contract theory). Moreover, in enacting EESA and HAMP, the legislature gave the Secretary of…”

Laforest v. Branch Banking & Trust Co. (Bankr. N.D. Ga. 2019). “§ 5226 , and judicial review of the Secretary's actions, 12 U.S.C. § 5229 (a)(1). Given the Eleventh Circuit’s conclusion that HAMP does not provide a private right of action to a borrower, one would be hard-pressed to conclude that either EESA or TARP does.”

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