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FDIC Enforcement Decisions and Orders

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{{4-1-90 p.A-1179}}
   [5099] FDIC Docket No. FDIC 87-71k (10-27-87)

   Notice of civil money penalties assessed against bank officers and directors become final after they fail to timely request a hearing. (Further proceedings in this docket appear at [¶ 5015]. This decision was affirmed in part and reversed and remanded in part by the U.S. Court of Appeals for the Fifth Circuit, 881 F.2d 1368 (1989)).

   [.1] Practice and Procedure—Hearing—Request Required
   A party who fails to request a hearing within 10 days after receipt of a notice of assessment is deemed to have waived the opportunity to be heard and the notice of assessment becomes final and unappealable.

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In the Matter of *** and ***, individually
and as executive officers and directors and
***, and *** individually and as directors
of *** BANK
(INSURED STATE NONMEMBER
BANK—IN RECEIVERSHIP)


DECISION AND ORDER
as to ***
FDIC 87-71k

   On April 17, 1987, Respondent *** was served, by certified mail, with copies of the Notice of Assessment of Civil Money Penalties, Findings of Fact and Conclusions of Law, Order to Pay, and Notice of Hearing ("Notice of Assessment") issued on April 8, 1987, by the Board of Review of the Federal Deposit Insurance Corporation ("FDIC"). Consequently, as provided in the Notice of Assessment and section 308.69 of the FDIC Rules of Practice and Procedures, 12 C.F.R. § 308.69, a request for a hearing on behalf of Respondent *** was due to be filed by April 27, 1987. Respondent *** did not file such a request.

   [.1] Section 308.70 of the FDIC Rules of Practice and Procedures, 12 C.F.R. 308.70, specifically provides that failure of a party to request a hearing within ten (10) days of receipt of the Notice of Assessment shall constitute a waiver of the party's opportunity of hearing; and in the event of a waiver pursuant to section 308.70, the "notice of assessment pursuant to §308.69(a) shall constitute a final and unappealable order." Due to the failure of Respondent *** to file a request for hearing, the Notice of Assessment issued against him has become final and unappealable.
   Accordingly, IT IS HEREBY ORDERED that a civil money penalty of $3,000 is assessed against ***.
   IT FURTHER ORDERED that this penalty shall be paid within 30 days of the date of this Order.
   By direction of the Board of Directors.
   Dated at Washington, D.C., this 27th day of October, 1987.

/s/ Hoyle L. Robinson
Executive Secretary

RECOMMENDED DECISION
GRANTING ORDER TO
PAY CIVIL MONEY PENALTIES
BY DEFAULT AS TO
***

FDIC 87-71k

   On this 27th day of July, 1987, the Motion for Recommended Decision filed by the Federal Deposit Insurance Corporation came on for hearing. The Court considered the documents on file, and the arguments of the parties pertaining to the failure and/or refusal of Respondents ***, *** and *** to file requests for hearing within ten (10) days after service of the Notice of Assessment as required by Section 308.69(b) of the FDIC Rules of Practice and Procedures, 12 C.F.R. §308.69(b), and page five of the Notice of Assessment. Based thereon, and on all relevant considerations, the Court hereby finds that these Respondents have failed to file requests for hearing within the time required by Section 308.70 of the FDIC Rules of Practice and Procedures, 12 C.F.R. §308.70. Pursuant thereto, the Court finds that these Respondents have waived their rights to a hearing and the Notice of Assessment issued against these Respondents on April 8, 1987 has become a final and unappealable Order.
   This Recommended Decision will be filed with the Executive Secretary of the FDIC as provided by Section 308.12(d) of the FDIC Rules of Practice and Procedures, 12 C.F.R. §308.12(d).
   Signed and entered this 27th day of July, 1987.

/s/William A. Gershuny
Administrative Law Judge

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