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FDIC Enforcement Decisions and Orders |
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FDIC Board dismisses as moot the notice disapproving application to acquire control of another institution because option to purchase had expired.
[.1] Change in Bank Control ActNotice of DisapprovalMootness
In the Matter of
This proceeding is an appeal by Berwyn Holdings, Incorporated ("Berwyn") from a Notice of Disapproval of Acquisition of Control and Notice of Hearing ("Notice of Disapproval") issued August 13, 1992, by the Federal Deposit Insurance Corporation ("FDIC") pursuant to the Change in Bank Control Act ("CBCA"), section 7(j) of the Federal Deposit Insurance Act ("Act"), 12 U.S.C. §1817(j), and the FDIC's Rules of Practice and Procedure, 12 C.F.R. Part 308, concerning Bay Loan and Investment Bank, East Greenwich, Rhode Island ("Bank").1
[.1] After review of the entire record in this proceeding, the Board of Directors ("Board") of the FDIC agrees with the finding and conclusion of the ALJ that Berwyn's contractual right to acquire control of the Bank having expired and, the seller having expressly refused to extend the contract term, there is no longer a justiciable issue in this proceeding. The conclusion is so clear that Respondent has not opposed it. The Board recently held, in a proceeding concerning a Notice of Disapproval of a Notification of Employment of a Senior Executive Officer of a bank in "troubled condition," under section 32 of the Act, 12 U.S.C. §1831i, that where the bank in question had ceased to exist during the course of the proceedings, the case was moot: "[a]s of May 1, 1992, the Bank no longer existed. This proceeding became nothing more than an academic exercise, an abstract inquiry into Petitioner's competence for a nonexistent position." In the Matter of Donald E. Thompson, Bank of Bellevue, Bellevue, Nebraska, Docket No. FDIC-91-246jj (September 15, 1992), at page 6. In so holding, the Board noted that, in a section 32 proceeding, an individual's competence, experience, character or integritythe factors provided in section 32 of the Actis evaluated in relation to the particular institution involved, the specific position in which the Applicant seeks to be employed, and any special needs of that institution, citing In the Matter of Daniel R. Cartier, Verona Exchange Bank, Verona, Illinois, Docket No. FDIC-90-153jj, 2 P-H FDIC Enf. Dec. ¶5162A (1991).
The Board concludes that this proceeding has been rendered moot by the fact that Berwyn no longer has a contractual right to acquire control of the Bank. Because its rights to acquire control of the Bank have expired, Berwyn's competence, experience, financial strength, and other factors relevant to an evaluation under the CBCA are no longer in issue; hence the proceeding should be terminated and the Notice of Disapproval rescinded.
The Board of the FDIC, having considered the entire record in this proceeding, and having determined that this proceeding concerning Berwyn's qualifications to acquire Bay Loan and Investment Bank, East Greenwich, Rhode Island, is moot because its rights to acquire control of the Bank have expired, hereby adopts in part and modifies in part the Recommended Order of Summary Disposition of the ALJ.
/s/ Hoyle L. Robinson
In the Matter of
A hearing herein was requested by Respondent to dispute the Board's finding that it lacked the capability to permit purchase of the financial institution. During the course of the investigation and the issuance of Notice herein, the time in which Respondent was limited by contract to obtain agency approval expired, and is not being extended. Having considered the motion filed by the Federal Deposit Insurance Corporation and the response by Respondent, the undersigned recommends that the proceeding be dismissed for lack of a justiciable issue.
/s/ Walter J. Alprin |
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Last Updated 6/6/2003 | legal@fdic.gov |