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   [5067] FDIC Docket No. FDIC 86-35c (6-30-86).

   Bank director who failed to file an answer within the time provided is deemed to have consented to removal from his office and prohibition from further participation in the affairs of the bank, for improperly approving a loan in excess of the secured and unsecured lending limit.

   [.1] Prohibition, Removal, or Suspension—Notice of Intention—Failure to Answer

   Failure of a party to file an answer within the time provided shall be deemed a waiver of the right to appear and contest the allegations of the notice of hearing, and authorizes the ALJ, without further notice to the party, to find the facts to be as alleged in the notice, and to file a recommended decision.
In the matter of * * * Individually and as
a former director and person participating
in the conduct of the affairs of * * *
BANK (INSURED STATE NONMEMBER BANK)

STIPULATION AND CONSENT TO
THE ISSUANCE OF AN ORDER OF
PROHIBITION FROM FURTHER
PARTICIPATION

FDIC 86-35e

   Subject to the acceptance of this STIPULATION AND CONSENT TO THE ISSUANCE OF AN ORDER OF PROHIBITION FROM FURTHER PARTICIPATION ("CONSENT AGREEMENT") by the Board of Directors of the Federal Deposit Insurance Corporation ("FDIC"), it is hereby stipulated and agreed by and between a representative of the Legal Division of the FDIC and * * * ("Respondent") as follows:
   1. Respondent has received a written NOTICE OF INTENTION TO REMOVE FROM OFFICE AND TO PROHIBIT FROM FURTHER PARTICIPATION ("NOTICE") issued by FDIC on January 31, 1986 pursuant to section 8(e)(1) of the Federal Deposit Insurance Act ("Act") (12 U.S.C. § 1818(e)(1)) to remove Respondent as a director of * * * Bank, * * * ("Bank"), and to prohibit Respondent from further participation in the conduct of the business and affairs of the Bank or any other bank insured by FDIC.
   2. On April 18, 1986, the Bank was declared insolvent and closed by the * * * State Comptroller; however, the issues raised in this proceeding have not been mooted by such action of the * * * State Comptroller.
   3. Respondent has been advised of his right to a hearing regarding the charges al- {{4-1-90 p.A-914}}leged in the NOTICE under section 8(e)(1) of the Act (12 U.S.C. § 1818(e)(1)) and Part 308 of the Rules of Practice and Procedures of the FDIC (12 C.F.R. Part 308), and Respondent has waived such hearing.
   4. Respondent, solely for the purposes of this proceeding and without admitting or denying any allegation contained in the NOTICE, hereby consents and agrees to the issuance and imposition of an ORDER OF PROHIBITION FROM FURTHER PARTICIPATION ("ORDER") by the FDIC in the form attached hereto.
   5. Respondent further stipulates and agrees that such ORDER shall become effective ten (10) days after its issuance by the FDIC; that, following such effective date, such ORDER shall be deemed to be an "order which has become final", as defined in section 8(k) of the Act (12 U.S.C. § 1818(k)); and that such ORDER shall be fully enforceable pursuant to the provisions of section 8(i) and 8(j) of the Act (12 U.S.C. § 1818(i) and 1818(j)).
   6. In the event the FDIC accepts this CONSENT AGREEMENT and issues the ORDER, it is agreed that no action will be taken by the FDIC to enforce said ORDER against Respondent in the United States District Court unless the Respondent violates, or is about to violate, any provision of the ORDER.
   7. The parties to this CONSENT AGREEMENT expressly waive:
   (a) A hearing conducted for the purpose of taking evidence regarding the allegations set forth in the NOTICE;
   (b) The filing of PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW regarding the allegations set forth in the NOTICE;
   (c) The issuance of a Recommended Decision by an Administrative Law Judge; and
   (d) The filing of written exceptions and briefs with respect to such Recommended Decision.
   Dated this 30th day of June, 1986, in * * *.
FEDERAL DEPOSIT INSURANCE CORPORATION
LEGAL DIVISION
* * *  * * *
__________ __________
* * *
Regional Counsel   Respondent

ORDER OF PROHIBITION FROM
FURTHER PARTICIPATION

FDIC 86-35e

   * * * ("Respondent"), having received a NOTICE OF INTENTION TO REMOVE FROM OFFICE AND TO PROHIBIT FROM FURTHER PARTICIPATION ("NOTICE") issued by the Board of Directors of the Federal Deposit Insurance Corporation ("FDIC") on January 31, 1986, which detailed alleged violations of law and regulation, unsafe or unsound banking practices, and other acts, omissions and practices for which an action can be initiated by the FDIC under section 8(e)(1) of the Federal Deposit Insurance Act ("Act") (12 U.S.C. § 1818(e)(1)) to remove Respondent as a director of * * * Bank, * * * ("Bank"), and to prohibit Respondent from further participation in the conduct of the business and affairs of the Bank or any other bank insured by the FDIC, and the Bank, having been declared insolvent and closed by the * * * State Comptroller on April 18, 1986, and Respondent, having been advised of his right to a hearing regarding the allegations contained in the NOTICE under Section 8(e)(1) of the Act (12 U.S.C. § 1818(e)(1)) and Part 308 of the Rules of Practice and Procedures of the FDIC (12 C.F.R. Part 308) and having waived such right, executed a STIPULATION AND CONSENT TO THE ISSUANCE OF AN ORDER OF PROHIBITION FROM FURTHER PARTICIPATION ("CONSENT AGREEMENT"), dated June 30, 1986, whereby, solely for the purpose of this proceeding and without admitting or denying any allegation contained in the NOTICE, Respondent consented to the issuance and imposition of a final ORDER OF PROHIBITION FROM FURTHER PARTICIPATION ("ORDER") by the FDIC.
   The FDIC considered the matter, and determined that it had reason to believe that the statutory prerequisites for the issuance of an order of prohibition from further participation in the conduct and affairs of the Bank under section 8(e)(1) of the Act were satisfied and that imposition of the ORDER against Respondent was warranted. Thereupon, the FDIC accepted the executed CONSENT AGREEMENT and issued the following:
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ORDER OF PROHIBITION FROM
FURTHER PARTICIPATION

   IT IS ORDERED that:
   1. * * *, is prohibited from participation in any manner in the conduct of the business and affairs of any bank insured by the FDIC without the prior written approval of the FDIC.
   2. * * *, is prohibited from voting for a director of any bank insured by FDIC without the prior written approval of the FDIC.
   IT IS FURTHER ORDERED that this ORDER shall become effective ten (10) days after the date of its issuance and that it shall remain effective and enforceable except to the extent that, and until such time as, any of its provisions shall have been modified, terminated, suspended, or set aside by the FDIC.
   By direction of the Board of Directors.
   Dated at Washington, D.C., this 12th day of August, 1986.
/s/ Hoyle L. Robinson
Executive Secretary

STIPULATION AND CONSENT TO
THE ISSUANCE OF AN ORDER OF
PROHIBITION FROM FURTHER
PARTICIPATION

FDIC 86-35e

   Subject to the acceptance of this STIPULATION AND CONSENT TO THE ISSUANCE OF AN ORDER OF PROHIBITION FROM FURTHER PARTICIPATION ("CONSENT AGREEMENT") by the Board of Directors of the Federal Deposit Insurance Corporation ("FDIC"), it is hereby stipulated and agreed by and between a representative of the Legal Division of the FDIC and * * * ("Respondent") as follows:
   1. Respondent has received a written NOTICE OF INTENTION TO REMOVE FROM OFFICE AND TO PROHIBIT FROM FURTHER PARTICIPATION ("NOTICE") issued by FDIC on January 31, 1986 pursuant to section 8(e)(1) of the Federal Deposit Insurance Act ("Act") (12 U.S.C. § 1818(e)(1)) to remove Respondent as a director of * * * Bank, * * * ("Bank") and to prohibit Respondent from further participation in the conduct of the business and affairs of the Bank or any other bank insured by FDIC.
   2. On April 18, 1986, the Bank was declared insolvent and closed by the * * * State Comptroller; however, the issues raised in this proceeding have not been mooted by such action of the * * * State Comptroller.
   3. Respondent has been advised of his right to a hearing regarding the charges alleged in the NOTICE under section 8(e)(1) of the Act (12 U.S.C. § 1818(e)(1)) and Part 308 of the Rules of Practice and Procedures of the FDIC (12 C.F.R. Part 308), and Respondent has waived such hearing.
   4. Respondent, solely for the purposes of this proceeding and without admitting or denying any allegation contained in the NOTICE, hereby consents and agrees to the issuance and imposition of an ORDER OF PROHIBITION FROM FURTHER PARTICIPATION ("ORDER") by the FDIC in the form attached hereto.
   5. Respondent further stipulates and agrees that such ORDER shall become effective ten (10) days after its issuance by the FDIC; that, following such effective date, such ORDER shall be deemed to be an "order which has become final", as defined in section 8(k) of the Act (12 U.S.C. § 1818(k)); and that such ORDER shall be fully enforceable pursuant to the provisions of sections 8(i) and 8(j) of the Act (12 U.S.C. § 1818(i) and 1818(j)).
   6. In the event the FDIC accepts this CONSENT AGREEMENT and issues the ORDER, it is agreed that no action will be taken by the FDIC to enforce said ORDER against Respondent in the United States District Court unless the Respondent violates, or is about to violate, any provision of the ORDER.
   7. The parties to this CONSENT AGREEMENT expressly waive:
   (a) A hearing conducted for the purpose of taking evidence regarding the allegations set forth in the NOTICE;
   (b) The filing of PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW regarding the allegations set forth in the NOTICE;
   (c) The issuance of a Recommended Decision by an Administrative Law Judge; and
   (d) The filing of written exceptions and briefs with respect to such Recommended Decision.
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   Dated this 25th day of June, 1986 in * * *.
FEDERAL DEPOSIT INSURANCE CORPORATION
LEGAL DIVISION
* * * * * *
__________ __________
* * *
Regional Counsel Respondent

ORDER OF PROHIBITION FROM
FURTHER PARTICIPATION

FDIC 86-35e

   * * * ("Respondent"), having received a NOTICE OF INTENTION TO REMOVE FROM OFFICE AND TO PROHIBIT FROM FURTHER PARTICIPATION ("NOTICE") issued by the Board of Directors of the Federal Deposit Insurance Corporation ("FDIC") on January 31, 1986, which detailed alleged violations of law and regulation, unsafe or unsound banking practices, and other acts, omissions and practices for which an action can be initiated by the FDIC under section 8(e)(1) of the Federal Deposit Insurance Act ("Act") (12 U.S.C. § 1818(e)(1)) to remove Respondent as a director of * * * Bank, * * * ("Bank") and to prohibit Respondent from further participation in the conduct of the business and affairs of the Bank or any other bank insured by the FDIC, and the Bank, having been declared insolvent and closed by the * * * State Comptroller on April 18, 1986, and Respondent, having been advised of his right to a hearing regarding the allegations contained in the NOTICE under section 8(e)(1) of the Act (12 U.S.C. § 1818(e)(1)) and Part 308 of the Rules and Practice and Procedures of the FDIC (12 C.F.R. Part 308) and having waived such right, executed a STIPULATION AND CONSENT TO THE ISSUANCE OF AN ORDER OF PROHIBITION FROM FURTHER PARTICIPATION ("CONSENT AGREEMENT"), dated June 25, 1986, whereby, solely for the purpose of this proceeding and without admitting or denying any allegation contained in the NOTICE, Respondent consented to the issuance and imposition of a final ORDER OF PROHIBITION FROM FURTHER PARTICIPATION ("ORDER") by the FDIC.
   The FDIC considered the matter, and determined that it had reason to believe that the statutory prerequisites for the issuance of an order of prohibition from further participation in the conduct and affairs of the Bank under section 8(e)(1) of the Act were satisfied and that imposition of the ORDER against Respondent was warranted. Thereupon, the FDIC accepted the executed CONSENT AGREEMENT and issued the following:

ORDER OF PROHIBITION FROM
FURTHER PARTICIPATION

   IT IS ORDERED that:
   1. * * *, is prohibited from participation in any manner in the conduct of the business and affairs of any bank insured by the FDIC without the prior written approval of the FDIC.
   2. * * *, is prohibited from voting for a director of any bank insured by FDIC without the prior written approval of the FDIC.
   IT IS FURTHER ORDERED that this ORDER shall become effective ten (10) days after the date of its issuance and that it shall remain effective and enforceable except to the extent that, and until such time as, any of its provisions shall have been modified, terminated, suspended, or set aside by the FDIC.
   By direction of the Board of Directors.
   Dated at Washington,.D.C., this 12th day of August, 1986.
/s/ Hoyle L. Robinson
Executive Secretary

ORDER OF REMOVAL FROM
OFFICE AND PROHIBITION FROM
FURTHER PARTICIPATION

FDIC-86-35e

   In a proceeding in which Respondent * * * failed to answer, the Administrative Law Judge recommended issuance of an Order of Removal From Office and Prohibition From Further Participation pursuant to Section 8(e) of the Federal Deposit Insurance Act ("Act") (12 U.S.C. § 1818(e)(1)).
   The Board of Directors ("Board") of the Federal Deposit Insurance Corporation ("FDIC") hereby adopts the Administrative Law Judge's Recommended Findings of Facts and Conclusions and incorporates them by reference herein.
   IT IS ORDERED that:
   1. * * * is removed as a director of * * * Bank, * * *.
   2. * * * is prohibited from further participation in any manner in the conduct of the business and affairs of * * * Bank, * * *, {{4-1-90 p.A-917}}without the prior written approval of the FDIC.
   3. * * * is prohibited from participation in any manner in the conduct of the business and affairs of any other bank insured by the FDIC without the prior written approval of the appropriate Federal banking agency, as defined in Section 3(q) of the Act, 12 U.S.C. § 1813(q).
   IT IS FURTHER ORDERED, that this ORDER shall become effective ten (10) days after the date of its issuance and that it shall remain effective and enforceable except to the extent that, and until such time as, any of its provisions shall have been modified, terminated, suspended, or set aside by the FDIC.
   By direction of the Board of Directors.
   Dated at Washington, D.C., this 22nd day of July, 1986.
/s/ Hoyle L. Robinson
Executive Secretary

FDIC-86-35e

RECOMMENDED DECISION AS TO
* * *

   By Notice Of Intention To Remove From Office And To Prohibit From Further Participation ("Notice"), the Federal Deposit Insurance Corporation ("FDIC") on January 31, 1986 instituted a proceeding against * * * ("Respondent"), and others, for the purpose of determining whether an appropriate order should be issued against each Respondent under the provisions of section 8(e) of the Federal Deposit Insurance Act ("Act") (12 U.S.C. § 1818(e)), removing each Respondent from his position as an officer and/or director of the * * * Bank, * * * ("Bank"), and prohibiting each Respondent from further participation in the conduct of the affairs of the Bank or any other bank insured by the FDIC. The Notice named as Respondents * * *, * * *, * * *, * * *, * * *, and * * *. This Recommended Decision concerns only Respondent * * *. Charges against the remaining respondents are pending as of this date.
   Counsel for FDIC has moved for a Recommended Decision as to Respondent * * *, and for issuance of an Order Of Removal From Office And Prohibition From Further Participation against Respondent (see motion by FDIC counsel dated April 22, 1986). In the aforesaid motion counsel states that the Notice issued against Respondent contained specific allegations for which an Order Of Removal From Office And Prohibition From Further Participation could be issued against him under the provisions of section 8(e) of the Federal Deposit Insurance Act (12 U.S.C. § 1818(e)). Counsel further states that the Notice was forwarded to Respondent by certified mail, return receipt requested; that FDIC obtained actual service of the Notice on Respondent; that Respondent was directed to file an Answer to the allegations contained in the Notice within twenty (20) days from the date of service of the Notice, as provided in section 308.06(a) of the FDIC Rules of Practice and Procedures (12 C.F.R. § 308.06(a)); that more than twenty (20) days has elapsed since the date of service of the Notice; that Respondent has not requested nor been granted an extension of time to file an Answer to the allegations of the Notice; and that Respondent has failed to file an Answer to the allegations contained in the Notice.

   [.1] Counsel points out that Section 308.06(d) of the FDIC Rules of Practice and Procedures (12 C.F.R. § 308.06(d)) provides:

       Failure of a party to file an answer required by this section within the time provided shall be deemed a waiver of the right to appear and contest the allegations of the notice of hearing and shall authorize the administrative law judge, without further notice to the party, to find the facts to be as alleged in the notice and to file with the Executive Secretary [of FDIC] a recommended decision containing such findings and appropriate conclusions.
   Accordingly, and pursuant to the above cited provisions of the FDIC Rules of Practice and Procedures (12 C.F.R. § 308.06(d)), the Administrative Law Judge hereby files this Recommended Decision containing an Order Of Removal From Office and Prohibition From Further Participation to be issued against Respondent by default for his failure to answer or otherwise respond to the allegations contained in the Notice.

FINDINGS OF FACT

   1. On January 31, 1986, and pursuant to the provisions of section 8(e) of the Federal {{4-1-90 p.A-918}}Deposit Insurance Act ("Act") (12 U.S.C. § 1818(e)) and Part 308 of the Federal Deposit Insurance Corporation Rules of Practice and Procedures (12 C.F.R. Part 308), the FDIC Board of Directors issued a Notice of Intention To Remove From Office and To Prohibit From Further Participation ("Notice") against Respondent * * * ("Respondent") for the purpose of removing said Respondent from his office as a director of * * * Bank, * * * ("Bank"), and prohibiting Respondent from any further participation in the conduct of the affairs of the Bank, or of any other bank insured by the FDIC.
   2. FDIC Rules of Practice and Procedures (12 C.F.R. § 308.21(a)) provides that all documents or papers required to be served by the Board of Directors upon any party afforded a hearing shall be served by the Executive Secretary or the Board's designee. Service shall be made by personal service or by registered or certified mail, addressed to the last known address as shown on the records of the Board, of a party's attorney or representative of record. If there is no attorney or representative of record, service shall be made upon a party at the party's last known address as shown on the records of the Board. Service may also be made in such other manner reasonably calculated to give actual notice, as the Board may provide by regulation or otherwise.
   3. FDIC obtained actual service of the Notice on Respondent as evidenced by the sworn affidavit of FBI Agent * * *, attached as Exhibit A to FDIC Counsel's Motion For Recommended Decision For Issuance Of Order Of Removal From Office And Prohibition From Further Participation By Default filed herein on April 22, 1986. Agent * * * affirms that a copy of the Notice and a copy of a transmittal letter dated January 31, 1986 addressed to Respondent from the FDIC Executive Secretary were found among the personal effects of Respondent incidental to a lawful search of Respondent's personal residence on March 21, 1986. A copy of FDIC Counsel's motion, with attached Exhibit A, is attached hereto.
   4. Respondent was directed to file an Answer to the allegations contained in the Notice within twenty (20) days from the date of service of the Notice, as provided in section 308.06(a) of the FDIC Rules of Practice and Procedure (12 C.F.R. § 308.06(a)).
   5. More than twenty (20) days has elapsed since the date of service of the Notice on Respondent.
   6. Respondent has not filed an Answer to the allegations contained in the Notice.
   7. Respondent has not requested and has not been granted an extension of time to file an Answer to the allegations contained in the Notice.
   8. Section 308.06(d) of the FDIC Rules of Practice and Procedures (12 C.F.R. § 308.06(d)) provides:

       Failure of a party to file an answer required by this section within the time provided shall be deemed a waiver of the right to appear and contest the allegations of the notice of hearing and shall authorize the administrative law judge, without further notice to the party, to find the fact to be as alleged in the notice and to file with the Executive Secretary [of FDIC] a recommended decision containing such findings and appropriate conclusions.
   9. * * * Bank ("Bank") is a corporation existing and doing business under the laws of the State of * * *, having its principal place of business at * * *. Bank is, and has been at all times mentioned herein, an insured State nonmember bank subject to the FDIC Act (12 U.S.C. §§ 1811-1831d), the Rules and Regulations of the FDIC (12 C.F.R. Chapter III) and the laws of the State of * * *.
   10. At all times mentioned herein Respondent has served as a director of the Bank and/or has been a participant in the conduct of the affairs of the Bank. The FDIC has jurisdiction over the Bank, the Respondent and the subjected matter of this proceeding.
   11. On October 29, 1985, the Bank agreed to extend credit in the amount of $30,000,000.00 to * * *, by issuing a written loan commitment in that amount to * * *, and entered into a series of related transactions advancing funded credit totaling $12,640,900.00 to * * * under such loan commitment. The loan commitment of the Bank to * * * and the series of related funding transactions that occurred on October 29, 1985, are hereinafter collectively referred to as "the * * * loan."
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   12. Respondent, in his capacity as a director of the Bank, negotiated, counseled, aided, abetted, participated in and/or approved the * * * loan notwithstanding that Respondent knew or should have known that the * * * loan evidenced the following nonconforming and unsafe or unsound banking characteristics:
   (a) The amount of the loan commitment of $30,000,000.00 to * * * exceeded the secured and unsecured lending limit of the Bank under section 658.48 of the * * * Statutes by more than $28,000,000.00.
   (b) The amount of funded credit of $12,640,900.00 to * * * exceeded the secured and unsecured lending limit of the Bank under section 658.48 of the * * * Statutes by more than $10,000,000.00.
   (c) The amount of the loan commitment of $30,000,000.00 to * * * equaled more than 470 percent of the total equity capital and reserves of the Bank.
   (d) The amount of funded credit of $12,640,900.00 to * * * equaled more than 198 percent of the total equity capital and reserves of the Bank.
   (f) The amount of funded credit of $12,640,900.00 to * * * was secured by three (3) certificates of deposit, each in the principal amount of $5,000,000.00, that were issued by the Bank to * * * which had maturities of 10 years and on which the Bank prepaid interest for 10 years totaling $9,216,800.00, thereby reducing the aggregate collateral value of such certificates of deposit to $5,783,200.00. The net outstanding credit of $11,627,900.00, adjusted for withheld interest, left a remaining total of $5,844,700.00 of such credit unsecured.
   (g) The amount of funded credit of $12,640,900.00 to * * * was purportedly secured by an interest in other property and/or contract rights to receivables; however, the Bank did not obtain a perfected security interest in any such collateral, thereby leaving the remaining total of $5,844,700.00 of such credit unsecured.
   (h) The amount of funded credit of $12,640,900.00 to * * *, as well as the unsecured portion of such credit totaling $5,844,700.00, was not supported by any financial information which evidenced an ability of * * * to repay such credit. An unsigned balance sheet of * * * in the files of the Bank indicated that as of June 30, 1985, * * * had assets and liabilities which each totaled $425,700.00 and that * * * did not have any positive net worth. In addition, * * * is located outside of the Bank's normal trade area, with offices in * * *, and * * *.
   (i) The amount of funded credit of $12,640,900.00 to * * * was purportedly guaranteed by * * *, President of * * *; however, the Bank does not have any financial information regarding the ability of * * * to repay such credit.
   (j) The amount of funded credit of $12,640,900.00 to * * * is evidenced by notes on which there is no contract rate of interest to be paid by * * * to the Bank during the ten-year maturity of such notes; in lieu of a provision for the payment of interest to the Bank at a contract rate commensurate with the amount and maturity of the credit extended, the Bank agreed to participate in a profit-sharing arrangement with * * * and to withhold a total of $1,013,000.00 from the proceeds of such credit as prepaid interest.
   (k) The amount of funded credit of $12,640,900.00 to * * * is evidenced by notes which contained a provision that effectively prohibits the Bank from declaring the debt of * * * to be in default and demanding repayment of the unpaid principal balance of such debt for a period of 10 year until October 29, 1995, notwithstanding that during such ten-year period the business of * * * may fail and/or that * * * may fail to make any profit or generate revenues from which payments on the credit extended to * * * by the Bank are to made by * * *.
   (l) The amount of funded credit of $12,640,900.00 to * * * was funded by the Bank through the purchase of brokered certificates of deposit totaling more than $7,000,000.00; and as a result of the Bank's purchase of such brokered certificates of deposit, the volatile liability dependency ratio of the Bank exceeds more than 50 percent.
   13. On October 21, 1985, the Bank had also advanced credit in the amount of $250,000.00 to * * * ("second loan"), as evidenced by a note dated October 21, 1985, due April 19, 1986, with quarterly interest required at the rate of 13.5 percent. For the reasons stated in Finding 12 above, this credit is also deemed unsecured.
{{4-1-90 p.A-920}}
   14. The * * * loan and second loan resulted in the probability that the Bank will sustain a financial loss in the amount of $6,094,700.00 in that the total amount of the net funded credit in the two loans of $11,877,900.00 to * * * is secured by certificates of deposit with a collateral value of only $5,783,200.00 and * * *'s financial strength does not indicate any apparent ability to repay the remaining unsecured portion of such credit.
   15. Respondent, in his capacity as a director of the Bank, negotiated, counseled, aided, abetted, participated in and/or approved the * * * loan for the purpose of and/or with the result that Respondent was the recipient of personal financial gain derived from a portion of the proceeds of the * * * loan.
   16. Respondent, in his capacity as a director of the Bank, breached his fiduciary duties to the shareholders and depositors of the Bank by negotiating, counseling, aiding, abetting, participating in and/or approving the * * * loan notwithstanding that Respondent knew or should have known that the * * * loan was evidenced by the nonconforming and unsafe or unsound banking characteristics set forth in Finding 12 above.
   17. Respondent, in his capacity as a director of the Bank, demonstrated a willful or continuing disregard for the safety or soundness of the Bank by negotiating, counseling, aiding, abetting, participating in and/or approving the * * * loan in that Respondent knew or should have known that the * * * loan evidenced the nonconforming and unsafe or unsound banking characteristics set forth in Finding 12 above, and that as a result of the * * * loan the Bank would probably sustain a financial loss in an amount that almost exceeded the total equity capital and reserves of the Bank.

CONCLUSIONS

   Respondent has been duly served by the Federal Deposit Insurance Corporation with a Notice Of Intention To Remove From Office And To Prohibit From Further Participation. This Notice contained allegations that Respondent engaged or participated in unsafe and unsound banking practices; committed or participated in violations of law; committed or engaged in acts, omissions, or practices which constituted breaches of his fiduciary duties as a director of * * *; that he received financial gain by reason of such violations, practices and breaches of fiduciary duties; and that such violations, practices or breaches of fiduciary duties involved personal dishonesty and/or demonstrated a willful or continuing disregard for the safety and soundness of the Bank. These violations, practices or breaches of fiduciary duties will cause the Bank to suffer substantial financial loss or other damage, and the interests of the Bank's depositors will be seriously prejudiced.
   Respondent was served with the Notice, which contained a directive that an Answer was required within twenty (20) days of service of the Notice (12 C.F.R. § 308.06).
   Respondent failed to file an Answer within the required time period for answering, and has not communicated with FDIC in regard to an extension of time to answer or to otherwise explain his default. Under these circumstances the Administrative Law Judge is authorized to find the facts as alleged in the Notice and to file with the Executive Secretary of FDIC a Recommended Decision containing such findings and appropriate conclusions (12 C.F.R. 308.06(d)).
   Appropriate findings of fact have been made heretofore, which findings of fact constitute a violation of the Federal Deposit Insurance Act. Pursuant to this Act and the findings heretofore made, the FDIC is authorized to issue such orders of suspension or removal from office, or prohibition from participation in the conduct of the affairs of the Bank, as it may deem appropriate (12 U.S.C. § 1818(e)). Accordingly, it is recommended that the FDIC enter the following Order:

ORDER OF REMOVAL FROM OFFICE
AND PROHIBITION FROM FURTHER
PARTICIPATION

   IT IS ORDERED that:
   1. * * * be, and he hereby is removed as a director of * * *.
   2. * * * be, and he hereby is prohibited from further participation in any manner in the conduct of the business and affairs of * * * Bank, * * *, without the prior written approval of the FDIC.
   3. * * * be, and he hereby is prohibited from participation in any manner in the conduct of the business and affairs of any {{4-1-90 p.A-921}}other bank insured by the FDIC without the prior written approval of the FDIC.
   4. * * * be, and he hereby is prohibited from voting for a director of * * * Bank, * * * or any other bank insured by FDIC without the prior written approval of the FDIC.
   IT IS FURTHER ORDERED that this ORDER shall become effective ten (10) days after the date of its issuance and that it shall remain effective and enforceable except to the extent that, and until such time as, any of its provisions shall have been modified, terminated, suspended, or set aside by the FDIC.
/s/ Ernest G. Barnes
Administrative Law Judge
Date: April 25, 1986
Attachment

AFFIDAVIT

   I, * * *, being duly sworn, do hereby affirm that the following statements are true and correct to the best of my knowledge:
   1. I am employed as a Special Agent for the Federal Bureau of Investigation at its office at * * *.
   2. On March 21, 1986, while in the discharge of my official duties and within the scope of my employment, I conducted a lawful search of the personal residence of * * *;
   3. In the conduct of my search I found among the personal effects of * * *, a document entitled, "Notice of Intention to Remove From Office and to Prohibit From Further Participation," with an attached transmittal letter dated January 31, 1986, from the FDIC Executive Secretary. Copies of these documents, found on the desk of * * * consisting of a total of 11 pages, are marked as composite exhibit 1, and are attached hereto;
   4. The original documents are currently being maintained in the official custody of the FBI in * * *.
Dated this 18th day of April 1986.
* * *,
Special Agent
Federal Bureau of Investigation
* * *
   On this 18th day of April, 1986, before me, personally appeared * * *, who is known to me to be the person whose name and signature are subscribed to the foregoing Affidavit and who, being duly sworn, acknowledged his execution thereof for the purpose therein stated.
   In witness, whereof, I have set unto my hand and official seal.
(SEAL)
My Commission Expires:     Notary Public
1/3/87

MOTION FOR RECOMMENDED
DECISION FOR ISSUANCE OF
ORDER OF REMOVAL FROM
OFFICE AND PROHIBITION FROM
FURTHER PARTICIPATION BY
DEFAULT

FDIC 86-35e

   The Federal Deposit Insurance Corporation ("FDIC") moves that the Administrative Law Judge duly assigned to hear this action file a Recommended Decision for the issuance of an Order of Removal From Office and Prohibition From Further Participation against * * * ("Respondent"). In support of this motion, FDIC states:
   1. On January 31, 1986, and pursuant to the provisions of section 8(e) of the Federal Deposit Insurance Act ("Act") (12 U.S.C. § 1818(e)) and Part 308 of the FDIC Rules of Practice and Procedures (12 C.F.R. Part 308), the FDIC Board of Directors issued a Notice of Intention to Remove From Office and to Prohibit From Further Participation ("Notice") against Respondent * * * for the purpose of removing Respondent * * * from his office as a director of * * * Bank, * * * ("Bank"), and prohibiting Respondent * * * from any further participation in the conduct of the affairs of the Bank or any other insured bank without the prior approval of the FDIC.
   2. On February 10, 1986, the Notice was forwarded to Respondent * * * by certified mail, return receipt requested. Upon information and belief, FDIC obtained actual service of the Notice on Respondent * * * as evidenced by the sworn affidavit of FBI Agent * * *, attached hereto as Exhibit A, affirming that the Notice was found among the personal effects of Respondent * * * incidental to a search of Respondent * * * personal residence on March 21, 1986.
   3. Respondent * * * was directed to file an Answer to the allegations contained in {{4-1-90 p.A-922}}the Notice within twenty (20) days from the date of service of the Notice, as provided in section 308.06(a) of the FDIC Rules of Practice and Procedures (12 C.F.R. § 308.06(a)).
   4. More than twenty (20) days has elapsed since the date of service of the Notice on Respondent * * *.
   5. Respondent * * * has not filed an Answer to the allegations contained in the Notice.
   6. Respondent * * * has not requested and has not been granted an extension of time to file an Answer to the allegations contained in the Notice.
   7. Section 308.06(d) of the FDIC Rules of Practice and Procedures (12 C.F.R. § 308.06(d)) provides:

       Failure of a party to file an answer required by this section within the time provided shall be deemed a waiver of the right to appear and contest the allegations of the notice of hearing and shall authorize the administrative law judge, without further notice to the party, to find the facts to be alleged in the notice and to file with the Executive Secretary [of FDIC] a recommendation decision containing such findings and appropriate conclusions.
   Accordingly, and pursuant to the cited provisions of section 308.06(d) of the FDIC Rules of Practice and Procedures (12 C.F.R. § 308.06(d)), FDIC respectfully requests that the Administrative Law Judge file a Recommended Decision recommending that an Order of Removal From Office and Prohibition From Further Participation ("Order") be issued against Respondent * * * by default for failure to answer the allegations contained in the Notice, and that such Recommended Decision adopt the allegations contained in the Notice and provide appropriate conclusions of law regarding the issuance of the Order against Respondent * * *.
   Dated: April 22, 1986
   Respectfully submitted,
   * * *
Regional Counsel
FEDERAL DEPOSIT INSURANCE CORPORATION
* * *

NOTICE OF INTENTION TO
REMOVE FROM OFFICE AND TO
PROHIBIT FROM FURTHER
PARTICIPATION

FDIC 86-35e

   The Federal Deposit Insurance Corporation ("FDIC"), being of the opinion that * * * ("Respondents"), individually and in their capacities as directors of * * * Bank, * * * ("Bank"), and as persons participating in the conduct of the affairs of the Bank, have engaged or participated in unsafe or unsound banking practices and that Respondents have committed or participated in violations of law, and committed or engaged in acts, omissions, or practices which constituted breaches of their fiduciary duties as directors of the Bank, and having reason to believe that the Bank has suffered or will probably suffer substantial financial loss or other damage, and that the interests of the Bank's depositors could be seriously prejudiced by reason of such violations, practices and breaches of fiduciary duties, and/or that Respondents have received financial gain by reason of such violations, practices and breaches of fiduciary duties, and being of the opinion that such violations, practices, or breaches of fiduciary duties involved personal dishonesty and/or demonstrated a willful or continuing disregard for the safety and soundness of the Bank by Respondents, institutes this proceeding for the purpose of determining whether an appropriate order should be issued against each Respondent under the provisions of section 8(e) of the Federal Deposit Insurance Act ("Act") (12 U.S.C. § 1818(e)), removing Respondent * * * from his position as chairman of the board and director of the Bank and Respondents * * *, * * *, * * *, * * * and * * * from their positions as directors of the Bank and prohibiting each Respondent from further participation in the conduct of the affairs of the Bank or any other bank insured by the FDIC.
   The FDIC hereby issues this NOTICE OF INTENTION TO REMOVE FROM OFFICE AND TO PROHIBIT FROM FURTHER PARTICIPATION ("NOTICE") pursuant to section 8(e) of the Act (12 U.S.C. § 1818(e)) and Part 308 of the FDIC Rules of Practice and Procedures (12 C.F.R. Part 308) and alleges as follows:
   1. The Bank, a corporation existing and doing business under the laws of the State {{4-1-90 p.A-923}}of * * *, having its principal place of business at * * *, is, and has been at all times mentioned herein, an insured State nonmember bank. The Bank is subject to the Act (12 U.S.C. §§ 1811-1831d), the Rules and Regulations of the FDIC (12 C.F.R. Chapter III) and the laws of the State of * * *.
   2. At all times pertinent to the charges in this NOTICE, Respondents have served as directors of the Bank and/or have been participants in the conduct of the affairs of the Bank. The FDIC has jurisdiction over the Bank, the Respondents and the subject matter of this proceeding.
   3. On October 29, 1985, the Bank agreed to extend credit in the amount of $30,000,000.00 to * * *, by issuing a written loan commitment in that amount to * * *, and entered into a series of related transactions advancing funded credit totaling $12,640,900.00 to * * * under such loan commitment. (The loan commitment of the Bank to * * *, and the series of related funding transactions on October 29, 1985, that resulted in advanced credit totaling $12,640,900.00 under such loan commitment are hereinafter collectively referred to as "the * * * loan".)
   4. Respondent * * *, in his capacity as chairman of the board and a director of the Bank, and Respondents * * *, * * *, * * *, * * * and * * *, in their capacities as directors of the Bank, negotiated, counseled, aided, abetted, participated in and/or approved the * * * loan notwithstanding that each Respondent knew or should have known that the * * * loan evidenced the following nonconforming and unsafe or unsound banking characteristics:
   (a) The amount of the loan commitment of $30,000,000.00 to * * * exceeded the secured and unsecured lending limit of the Bank under section 658.48 of the * * * Statutes by more than $28,000,000.00.
   (b) The amount of funded credit of $12,640,900.00 to * * *, exceeded the secured and unsecured lending limit of the Bank under section 658.48 of the * * * Statutes by more than $10,000,000.00.
   (c) The amount of the loan commitment of $30,000,000.00 to * * * equaled more than 470 percent of the total equity capital and reserves of the Bank.
   (d) The amount of funded credit of $12,640,900.00 to * * * equaled more than 198 percent of the total equity capital and reserves of the Bank.
   (f) The amount of funded credit of $12,640,900.00 to * * * was secured by three (3) certificates of deposit, each in the principal amount of $5,000,000.00, that were issued by the Bank to * * * which had maturities of 10 years and on which the Bank prepaid interest for 10 years totaling $9,216,800.00, thereby reducing the aggregate collateral value of such certificates of deposit to $5,783,200.00. The net outstanding credit of $11,627,900.00, adjusted for withheld interest, left a remaining total of $5,844,700.00 of such credit unsecured.
   (g) The amount of funded credit of $12,640,900.00 to * * * was purportedly secured by an interest in other property and/or contract rights to receivables; however, the Bank did not obtain a perfected security interest in any such collateral, thereby leaving the remaining total of $5,844,700.00 of such credit unsecured.
   (h) The amount of funded credit of $12,640,900.00 to * * * as well as the unsecured portion of such credit totaling $5,844,700.00, was not supported by any financial information which evidenced an ability of * * * to repay such credit. An unsigned balance sheet of * * * in the files of the Bank indicated that as of June 30, 1985, * * * had assets and liabilities which each totaled $425,700.00 and that * * *, did not have any positive net worth. In addition, * * * is located outside of the Bank's normal trade area, with offices in * * *, and * * *.
   (i) The amount of funded credit of $12,640,900.00 to * * * was purportedly guaranteed by * * *, President of * * *; however, the Bank does not have any financial information regarding the ability of * * * to repay such credit.
   (j) The amount of funded credit of $12,640,900.00 to * * * is evidenced by notes on which there is no contract rate of interest to be paid by * * * to the Bank during the ten-year maturity of such notes; in lieu of a provision for the payments of interest to the Bank at a contract rate commensurate with the amount and maturity of the credit extended, the Bank agreed to participate in a profit-sharing arrangement with * * * and to withhold a total of {{4-1-90 p.A-924}}$1,013,000.00 from the proceeds of such credit as prepaid interest.
   (k) The amount of funded credit of $12,640,900.00 to * * * is evidenced by notes which contained a provision that effectively prohibits the Bank from declaring the debt of * * * to be in default and demanding repayment of the unpaid principal balance of such debt for a period of 10 years until October 29, 1995, notwithstanding that during such ten-year period the business of * * * may fail and/or that * * * may fail to make any profit or generate revenues from which payments on the credit extended to * * * by the Bank are to be made by * * *.
   (l) The amount of funded credit of $12,640,900.00 to * * * was funded by the Bank through the purchase of brokered certificates of deposit totaling more than $7,000,000.00; and as a result of the Bank's purchase of such brokered certificates of deposit, the volatile liability dependency ratio of the Bank exceeds more than 50 percent.
   5. On October 21, 1985, the Bank had also advanced credit in the amount of $250,000.00 to * * * ("second loan"), as evidenced by a note dated October 21, 1985, due April 19, 1986, with quarterly interest required at the rate of 13.5 percent. For the reasons stated above in paragraph 4, this credit is also deemed unsecured.
   6. The * * * loan and second loan resulted in the probability that the Bank will sustain a financial loss in the amount of $6,094,700.00 in that the total amount of the net funded credit in the two loans of $11,877.900.00 to * * * is secured by certificates of deposit with a collateral value of only $5,783,200.00 and * * * financial strength does not indicate any apparent ability to repay the remaining unsecured portion of such credit.
   7. Respondent * * * in his capacity as chairman of the board and a director of the Bank, and Respondents * * *, * * *, * * *, * * * and * * *, in their capacities as directors of the Bank, negotiated, counseled, aided, abetted, participated in and/or approved the * * * loan for the purposes of and/or with the result that each Respondent was the recipient of personal financial gain derived from a portion of the proceeds of the * * * loan.
   8. Respondent * * *, in his capacity as chairman of the board and a director of the Bank, and Respondents * * *, * * *, * * *, * * * and * * *, in their capacities as directors of the Bank, breached their fiduciary duties to the shareholders and depositors of the Bank by negotiating, counseling, aiding, abetting, participating in and/or approving the * * * loan notwithstanding that each Respondent knew or should have known that the * * * loan was evidenced by the nonconforming and unsafe or unsound banking characteristics set forth in paragraph 4 of this NOTICE.
   9. Respondent * * *, in his capacity as chairman of the board and a director of the Bank, and Respondents * * *, * * *, * * *, * * * and * * *, in their capacities as directors of the Bank, demonstrated a willful or continuing disregard for the safety or soundness of the Bank by negotiating, counseling, aiding, abetting, participating in and/or approving the * * * loan in that each Respondent knew or should have known that the * * * loan evidenced the nonconforming and unsafe or unsound banking characteristics set forth in paragraph 4 of this NOTICE, and that as a result of the * * * loan the Bank would probably sustain a financial loss in an amount that almost exceeded the total equity capital and reserves of the Bank.
   10. Respondent * * *, in his capacity as chairman of the board and a director of the Bank, demonstrated personal dishonesty by making false and misleading statements to FDIC and/or * * * State Examiners regarding the relationship between the * * * loan plus related transactions and the receipt of any personal financial gain by the Respondents, derived from the * * * loan plus related transactions.
   11. Notice is hereby given that a hearing will be held at * * *, commencing 60 days from the date of service of this NOTICE on Respondents, unless an earlier or later date is set at the request of (A) Respondents for good cause shown, or (B) the Attorney General of the United States, for the purpose of taking evidence on the charges herein specified in order to determine whether a permanent order should be issued to remove Respondent * * * from his position as chairman of the board and a director of the Bank, and to remove Respondents * * *, * * *, * * *, * * * and * * * from their positions as directors of the Bank, and to prohibit the further participation of each Respondent in the conduct of the affairs of {{4-1-90 p.A-925}}the Bank, or any other bank insured by the FDIC.
   12. The hearing is to be held before an Administrative Law Judge to be appointed by the U.S. Office of Personnel Management pursuant to 5 U.S.C. § 3344. The hearing will be private unless the FDIC shall determine that a public hearing is necessary to protect the public interest and in all respects will be conducted in compliance with the provisions of the Federal Deposit Insurance Act and the FDIC's Rules of Practice and Procedures. Each Respondent is hereby directed to file an answer to this NOTICE OF INTENTION TO REMOVE FROM OFFICE AND TO PROHIBIT FROM FURTHER PARTICIPATION within 20 days from the date of service on each Respondent, as provided by section 308.06 of the FDIC's Rules of Practice and Procedures (12 C.F.R. § 308.06).
   Copies of all papers filed in this proceeding shall be served upon the Legal Division, Compliance and Enforcement Section, Washington, D.C. 20429 and upon the Regional Counsel, Bank Supervision, for the Regional Office in which the home office of the Bank is located.
   By direction of the Board of Directors.
   Dated at Washington, D.C., this 31st day of January, 1986.
/s/ Hoyle L. Robinson
Executive Secretary

RECOMMENDED DECISION

FDIC 86-35e

   On January 31, 1986, the Board of Directors of the Federal Deposit Insurance Corporation ("FDIC") issued a Notice of Intention to Remove From Office and To Prohibit From Further Participation ("Notice") against * * * ("Respondent"). The Notice issued against Respondent * * * contained specific allegations for which an Order of Removal From Office and Prohibition From Further Participation ("Order") could be issued against Respondent * * * under the provisions of section 8(e) of the Federal Deposit Insurance Act (12 U.S.C. § 1818(e)). The Notice specifically directed Respondent * * * to file an Answer within twenty (20) days from the date of service of such Notice, as provided in section 308.06(a) of the FDIC Rules of Practice and Procedures. Respondent * * * was served with the Notice on February 10, 1986; however, Respondent * * * has not filed an Answer to the allegations contained in the Notice and has not requested or received an extension of time to file an Answer to the allegations contained in the Notice. On April 22, 1986, FDIC filed a Motion for a Recommended Decision for the Issuance of an Order of Removal From Office and Prohibition From Further Participation by Default ("FDIC's Motion") against Respondent * * * for failure of Respondent * * * to answer the allegations contained in the Notice pursuant to section 308.06(d) of the FDIC Rules of Practice and Procedures (12 C.F.R. § 308.06(d)).
   After being fully advised in this matter and having considered the failure of Respondent * * * to file an Answer to the Notice as required by section 308.06(a) of the FDIC Rules of Practices and Procedures (12 C.F.R. § 308.06(a)), the following findings, conclusions, and recommendations are made:
   1. Respondent * * * was served by mail, return receipt requested, on or about February 10, 1986 with the Notice issued by the FDIC Board of Directors pursuant to section 8(e) of the Act on January 31, 1986. Based upon the sworn Affidavit of FBI Agent * * * annexed to FDIC's Motion, it appears that actual service of the Notice on Respondent * * * occurred.
   2. Respondent * * * has not requested an extension of time to file an Answer to the allegations contained in the Notice, and Respondent * * * has failed to file an Answer to the Notice, as required by section 308.06(a) of the FDIC Rules of Practice and Procedures (12 C.F.R. § 308.06(a)).
   3. As a result of his failure to file an Answer to the Notice, Respondent * * * has waived his right to appear and contest the allegations contained in the Notice, as provided in section 308.06(d) of the FDIC Rules of Practice and Procedures (12 C.F.R. § 308.06(d)).
   4. The allegations contained in the Notice are hereby adopted as to Respondent * * * as findings of fact and as appropriate conclusions of law.
   Accordingly, is recommended that the Board of Directors of the FDIC issue an Order of Removal From Office and Prohibition From Further Participation in the {{4-1-90 p.A-926}}from attached to this Recommended Decision.
This ________ day of ________, 1986.
Ernest G. Barnes
Administrative Law Judge

ORDER OF REMOVAL FROM
OFFICE AND PROHIBITION FROM
FURTHER PARTICIPATION

FDIC 86-35e

   * * * ("Respondent"), having received a Notice of Intention to Remove From Office and to Prohibit From Further Participation ("Notice") issued by the Board of Directors of the Federal Deposit Insurance Corporation ("FDIC") on January 31, 1986, which detailed alleged violations of law and regulation, unsafe or unsound banking practices, and other acts, omissions, or practices for which an action can be initiated by the FDIC under section 8(e) of the Federal Deposit Insurance Act ("Act") (12 U.S.C. § 1818(e)(1)) to remove Respondent as a director of * * * Bank, * * * ("Bank") and to prohibit Respondent from further participation in the conduct of the business and affairs of the Bank or any other bank insured by the FDIC; and Respondent * * * having been advised of his right to a hearing regarding such alleged charges under section 8(e) of the Act and Part 308 of the Rules of Practice and Procedures of the FDIC (12 C.F.R. Part 308), and having waived such right by failing to file an Answer to the allegations contained in the Notice; the Administrative Law Judge having made a Recommended Decision recommending the issuance and imposition of a final Order of Removal From Office and Prohibition From Further Participation ("Order") against Respondent * * * for failure to answer the allegation contained in the Notice; the FDIC having determined that it had reason to believe that the statutory prerequisites for removal from office and prohibition from further participation in the operations and affairs of the Bank under section 8(e) of the Act were satisfied and that issuance and imposition of the Order against Respondent * * * was warranted. Thereupon, the FDIC accepted the Recommended Decision of the Administrative Law Judge and issued the following:

ORDER OF REMOVAL FROM OFFICE
AND PROHIBITION FROM FURTHER
PARTICIPATION

   IT IS ORDERED that:
   1. * * * is removed as a director of * * * Bank, * * *.
   2. * * * is prohibited from further participation in any manner in the conduct of the business and affairs of * * * Bank, * * *, without the prior written approval of the FDIC.
   3. * * * is prohibited from participation in any manner in the conduct of the business and affairs of any other bank insured by the FDIC without the prior written approval of the FDIC.
   4. * * * is prohibited from voting for a director of * * * Bank, * * * or any bank insured by FDIC without the prior written approval of the FDIC.
   IT IS FURTHER ORDERED that this ORDER shall become effective ten (10) days after the date of its issuance and that it shall remain effective and enforceable except to the extent that, and until such time as, any of its provisions shall have been modified, terminated, suspended, or set aside.
   By direction of the Board of Directors.
   Dated at Washington, D.C., this ________ day of ________, 1986.
Hoyle L. Robinson
Executive Secretary

CERTIFICATE OF SERVICE

   Pursuant to Section 308.21 of the Rules of Practice and Procedures, I hereby certify that a copy of the FDIC Motion for Recommended Decision for Issuance of an Order of Removal From Office and Prohibition From Further Participation by Default with the attached proposed Recommended Decision and Order was sent by certified mail, return receipt requested, this 22nd day of April, 1986 to * * *.
Regional Counsel
FEDERAL DEPOSIT INSURANCE
CORPORATION

* * *
Attorney for the
Federal Deposit Insurance Corporation

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