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FDIC Enforcement Decisions and Orders |
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Civil money penalties assessed against bank directors and officers for making improper loans, extending credit on terms that were not substantially the same as those terms prevailing at the time for comparable transactions, and for extending and renewing credit for transactions involving more than the normal risk of repayment.
[.1] Civil Money PenaltiesAmount of PenaltyStatutory Standard
[.2] Civil Money PenaltiesPurpose
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[.4] Civil Money PenaltiesAmount of PenaltyGood Faith Compliance
In the Matter of * * * , individually and
DECISION
ORDER
After taking into account the appropriateness of each penalty with respect to the financial resources and good faith of Respondent * * * and Respondent * * * , the gravity of the violation of each Respondent, the history of previous violations of each Respondent, and such other matters as justice may require, it is:
Findings of Fact, Conclusions of Law, and
FDIC-85-329k
On November 25, 1985, the Federal Deposit Insurance Corporation (hereinafter FDIC), acting through its Board of Directors and its Executive Secretary, issued a notice of assessment of civil money penalties and of hearing to the above named Respondents. With respect to the Respondents * * * and * * * these proceedings have abated by reason of the Respondents' deaths. The Respondent * * * did not request a hearing. The Respondents * * *, * * * , * * * , * * * , and * * * each requested a hearing, but later settled their dispute with the FDIC. There remain only two Respondents involved in these proceedings, * * * and * * * , each of whom contest a proposed assessment of a $3,000 civil penalty.
STATUTORY AND REGULATORY
[.1] Section 18(j)(3) of the Federal Deposit Insurance Act [12 U.S.C. § 1828(j)], as pertinent here, provides for the imposition of civil monetary penalty on any officer, director, employee, agent, or other person participating in the conduct or affairs of a nonmember insured bank for violations of sections 23A of 22(h) of the Federal Reserve Act, or any lawful regulation issued pursuant thereto. Such penalty shall not be more than $1,000 per day for each day during which such a violation continues. Once imposed, such penalty may be compromised, modified, or remitted by the FDIC in its discretion. In determining the amount of the penalty, the FDIC is required to take into account "the appropriateness of the penalty with respect to the size of financial resources and good faith of the... person charged, the gravity of the violation, the history of previous violations, and such other matters as justice may require". The statute further provides for a hearing at the request of an individual against whom a monetary penalty is sought to be assessed.
THE RECORD
The record upon which the findings of fact, conclusions of law, and recommended decision are based consists of the following:
ISSUES
The general issue before the undersigned is whether civil monetary penalties could be properly assessed against the Respondents under the provisions of section 18(j) of the Federal Deposit Insurance Act. The specific issues include whether the record establishes the alleged violations of section 22(h) of the Federal Reserve Act (12 U.S.C. 375b) and the implementing regulations (Regulation O) adopted by the board of governors of the Federal Reserve System (12 C.F.R. part 215); and whether the appropriate factors set forth in the Federal Deposit Insurance Act and the Regulations were considered in assessing these penalties.
THE VIOLATIONS
There is little factual controversy involved in this case. The record clearly establishes that the Respondents * * * and * * * were members of the Board of Directors of the * * * Bank * * * at the time that the violations of Regulation O set forth in the FDIC's proposed findings of fact took place. No objection or reply was received with respect to the findings proposed by the FDIC. These findings are expressly based on the stipulations accepted by the Respondents and on uncontroverted evidence of record. Accordingly, these findings have been adopted by the undersigned herein, with minor corrections of apparent typographical errors. The conclusions of law proposed by counsel for the FDIC flow directly from the proposed findings and are also adopted by the undersigned. There is therefore no question but that grounds
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FACTORS TO BE CONSIDERED IN
Both the Federal Deposit Insurance Act and the implementing regulations provide that, in determining the amount of the penalty to be assessed, the FDIC must consider "the financial resources and good faith of the insured nonmember bank or its official, the gravity of the violation, any previous violations, and such other matters as justice may require" (12 C.F.R. 308.68). The FDIC contends that the decision to set the particular amount of the penalties is committed to the discretion of the FDIC and is not reviewable, except to the extent that such discretion may be abused by arbitrary or capricious action (at pages 4142). Counsel for the FDIC cites several cases dealing with judicial review of an action involving the discretion of an administrative agency.
[.2] As was pointed out by the FDIC's Assistant Regional Director at the hearing (transcript, pages 100 102), the purpose of the penalties is to deter the commission of illegal acts. While an individual may be deterred from an action that does not particularly benefit him or her by a relatively small disincentive, an effective deterrent, presumably requires a stronger penalty if the individual is motivated by personal pecuniary interest. Therefore, efforts at deterrence should be addressed with greater vigor against violators who sought personal gain than against mere passive individuals who failed to prevent the violations.
FINDINGS OF FACT OF THE
On the basis of the entire record, the Administrative Law Judge makes the following findings:
BACKGROUND AND JURISDICTIONAL MATTERS
1. * * * Bank * * * ("Bank") is a corporation existing and doing business under the laws of the State of * * * , and has its principal place of business in * * *. The Bank is and has been, at all times pertinent to this proceeding, an insured state nonmember bank subject to the Federal Deposit Insurance Act ("the Act") [12 U.S.C. § 1811 1831(d)], and the Rules and Regulations of the FDIC (12 C.F.R. Chapter III) and the laws of the State of * * *. (Stip. ¶1).
(Stip. ¶10; FDIC Exh. 1, p. 17; * * * - Tr. 27).
13. As of February 15, 1985, the Bank had extended credit to Resident * * * in the amount of $9,100 in the form of an installment loan for the purpose of overdraft check protection. (Stip. ¶11; FDIC Exh. 1, p. 17; * * * - Tr. 37-8).
C. VIOLATIONS OF SECTION 22(h)(1)
47. Under section 22(h)(1) of the Federal Reserve Act [12 U.S.C. § 375b(1)] and section 215.4(c) of Regulations O [12 C.F.R. § 215.4(c)] the Bank could extend credit to Respondent * * * and related interests up to the lower of the lending limit imposed by section 32 of * * * Banking Act [ * * * Ann. Stat. Ch. 17, ¶339 ( * * * 1986)] or section 215.2(f) of Regulations O [12 C.F.R. § 215.2(f)]. (FDIC Exh. 1, p. 20; * * * - Tr. 35].
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E. VIOLATIONS OF SECTION 22(h) OF
65. Under the Bank's prior approval lending limit, as set forth in section 337.3(b) of the FDIC Rules and Regulations, the Bank could extend credit to executive officers and their related interests and to directors and their related interest up to 5% of the Bank's capital and unimpaired surplus without prior approval of a disinterested majority of the entire board of directors of the Bank. (Stip. ¶50; FDIC Exh. 1, p. 20; * * * - Tr. 41).
(Stip. ¶58; FDIC Exh. 1, p. 21).
75. From June 18, 1983 through January 4, 1985, the Bank extended or renewed credit to * * * in the amount of $222,000; as of February 15, 1985, the outstanding balance of credit to * * * from the Bank was $143,000. (Stip. ¶59; FDIC Exh. 1, p. 21).
(Stip. ¶60; FDIC Exh. 1, p. 21).
78. From May 22, 1983 through October 22, 1984, the Bank extended credit to * * * in the amount of $6,000; as of February 15, 1985, the outstanding balance of credit to * * * was $3,000. (Stip. ¶61; FDIC Exh. 1, p. 21).
(Stip. ¶67; FDIC Exh. 1, p. 22; FDIC Exh. 48).
85. The loans to * * * referenced in paragraph 83 above equal $139,500; as of February 15, 1985, the outstanding balance of credit to * * * was $139,500. (Stip. ¶68; FDIC Exh. 1, p. 22A; * * * - Tr. 44).
F. FACTORS TO BE CONSIDERED
149. Neither the Respondent * * * nor any individual or business entity which would have constituted his "related interest" as defined in section 215.2(k) of Regulation O received any funds from any of the improper loans relevant to these proceedings (transcript, page 137).
CONCLUSIONS OF LAW
After careful consideration of the entire record, including the evidence and the arguments of counsel for the parties, in view of the foregoing findings, the Administrative Law Judge reaches the following conclusions of law:
A. BACKGROUND AND
1. The FDIC has jurisdiction over the Respondents and the subject matter of this proceeding. (Finding nos. 13).
[.3] B. VIOLATIONS OF SECTION 22(h)(3) OF THE FEDERAL RESERVE ACT, [12 U.S.C. § 375b(3)] AND SECTION 215.4(a) OF REGULATION O [12 C.F.R. § 215.4(a)]
C. VIOLATIONS OF SECTION 22(h)(1)
14. Extensions of credit to * * * totaling $48,000 accrued to the benefit of Respondent * * * related interest, * * *, and are considered, for purposes of section 22(h)(1) of the Federal Reserve Act [12 U.S.C. § 375b(1)] and section 215.4(c) of Regulation O [12 C.F.R. § 215.4(c)] to be extensions of credit to Respondent * * * related interest * * *. (Finding nos. 67; 19; 2223).
D. VIOLATIONS OF SECTION 22(h)(4)
17. Overdrafts by Respondent * * * in excess of $1,000 or outstanding for more than five business days were made in violation of section 22(h)(4) of the Federal Reserve Act [12 U.S.C. § 375b(4)] and section 215.4(d) of Regulation O [12 C.F.R. § 215.4(d)] in that Respondent * * * did not have a written, preauthorized, interestbearing extension of credit plan for overdrafts with a specific method of repayment or a written, preauthorized plan for the transfer of funds from another account at the Bank to cover overdrafts. (Finding nos. 5664).
E. VIOLATIONS OF SECTION 22(h)(2)
18. Extensions of credit to * * *, which were deposited in joint checking accounts of * * * and Respondent * * * and which were to be used for business purposes, accrued to the benefit of Respondent * * * and are considered, for purposes of section 22(h)(2) of the Federal Reserve Act [12 U.S.C. § 375b(2) and section 215.4(b) of Regulation O [12 C.F.R. § 215.4(b)], to be extensions of credit to Respondent * * *. (Finding no. 76).
F. FACTORS TO BE CONSIDERED
[.4] 32. With respect to Respondent * * *, but not with respect to Respondent * * *, a showing has been made of some affirmative acts of good faith with respect to preventing the violations at issue here.
RECOMMENDED DECISION
In view of the foregoing, the undersigned Administrative Law Judge recommends to the Board of Directors of the Federal Deposit Insurance Corporation that an order to pay should issue against the Respondents * * * and * * * under the provisions of section 18(j) of the Federal Deposit Insurance Act incorporating the provisions of the Proposed Order to Pay appended hereto.
PROPOSED ORDER TO PAY
After taking into account the appropriateness of each penalty with respect to the financial resources and good faith of Respondent * * * and Respondent * * *, the gravity of the violation of each Respondent, the history of previous violations of each Respondent, and such other matters as justice may require, it is: |
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Last Updated 6/6/2003 | legal@fdic.gov |