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1000 - Federal Deposit Insurance Act
{{10-31-94 p.1131}}
SEC. 8 (a) TERMINATION OF INSURANCE.--
(1) VOLUNTARY TERMINATION.--Any insured depository
institution which is not--
(A) a national member bank;
(B) a State member bank;
(C) a Federal branch;
(D) a Federal savings association; or
(E) an insured branch which is required to be insured under
subsection (a) or (b) of section 6 of
the International Banking Act of 1978,
may terminate such depository institution's status as an insured
depository institution if such insured institution provides written
notice to the Corporation of the institution's intent to terminate such
status not less than 90 days before the effective date of such
termination.
(2) INVOLUNTARY TERMINATION.--
(A) NOTICE TO PRIMARY REGULATOR.--If the Board of
Directors determines that--
(i) an insured depository institution or the directors or
trustees of an insured depository institution have engaged or are
engaging in unsafe or unsound practices in conducting the business of
the depository institution;
(ii) an insured depository institution is in an unsafe or unsound
condition to continue operations as an insured institution; or
(iii) an insured depository institution or the directors or
trustees of the insured institution have violated any applicable law,
regulation, order, condition imposed in writing by the Corporation in
connection with the approval of any application or other request by the
insured depository institution, or written agreement entered into
between the insured depository institution and the Corporation,
the Board of Directors shall notify the appropriate Federal banking
agency with respect to such institution (if other than the Corporation)
or the State banking supervisor of such institution (if the Corporation
is the appropriate Federal banking agency) of the Board's determination
and the facts and circumstances on which such determination is based
for the purpose of securing the correction of such practice, condition,
or violation. Such notice shall be given to the appropriate Federal
banking agency not less than 30 days before the notice required by
subparagraph (B), except that this period for notice to the appropriate
Federal banking agency may be reduced or eliminated with the agreement
of such agency.
(B) NOTICE OF INTENTION TO TERMINATE INSURANCE.--If,
after giving the notice required under subparagraph (A) with respect to
an insured depository institution, the Board of Directors determines
that any unsafe or unsound practice or condition or any violation
specified in such notice requires the termination of the insured status
of the insured depository institution, the Board shall--
(i) serve written notice to the insured depository institution of
the Board's intention to terminate the insured status of the
institution;
(ii) provide the insured depository institution with a statement
of the charges on the basis of which the determination to terminate
such institution's insured status was made (or a copy of the notice
under subparagraph (A)); and
(iii) notify the insured depository institution of the date (not
less than 30 days after notice under this subparagraph) and place for a
hearing before the Board of Directors (or any person designated by the
Board) with respect to the termination of the institution's insured
status.
(3) HEARING; TERMINATION.--If, on the basis of the
evidence presented at a hearing before the Board of Directors (or any
person designated by the Board for such purpose), in which all issues
shall be determined on the record pursuant to section 554 of title 5,
United States Code, and the written findings of the Board of Directors
(or such person) with respect to such evidence (which shall be
conclusive), the Board of Directors finds that any unsafe or unsound
practice or condition or any violation specified in the notice to an
insured depository institution under paragraph (2)(B) or subsection (w)
has been
{{10-31-94 p.1132}}established, the Board of Directors may issue
an order terminating the insured status of such depository institution
effective as of a date subsequent to such finding.
(4) APPEARANCE; CONSENT TO TERMINATION.--Unless the
depository institution shall appear at the hearing by a duly authorized
representative, it shall be deemed to have consented to the termination
of its status as an insured depository institution and termination of
such status thereupon may be ordered.
(5) JUDICIAL REVIEW.--Any insured depository institution
whose insured status has been terminated by order of the Board of
Directors under this subsection shall have the right of judicial review
of such order only to the same extent as provided for the review of
orders under subsection (h) of this section.
(6) PUBLICATION OF NOTICE OF TERMINATION.--The
Corporation may publish notice of such termination and the depository
institution shall give notice of such termination to each of its
depositors at his last address of record on the books of the depository
institution, in such manner and at such time as the Board of Directors
may find to be necessary and may order for the protection of
depositors.
(7) Temporary insurance of deposits insured as of
termination.--After the termination of the insured status of any
depository institution under the provisions of this subsection, the
insured deposits of each depositor in the depository institution on the
date of such termination, less all subsequent withdrawals from any
deposits of such depositor, shall continue for a period of at least 6
months or up to 2 years, within the discretion of the Board of
Directors, to be insured, and the depository institution shall continue
to pay to the Corporation assessments as in the case of an insured
depository institution during such period. No additions to any such
deposits and no new deposits in such depository institution made after
the date of such termination shall be insured by the Corporation, and
the depository institution shall not advertise or hold itself out as
having insured deposits unless in the same connection it shall also
state with equal prominence that such additions to deposits and new
deposits made after such date are not so insured. Such depository
institution shall, in all other respects, be subject to the duties and
obligations of an insured depository institution for the period
referred to in the 1st sentence from the date of such termination, and
in the event that such depository institution shall be closed on
account of inability to meet the demands of its depositors within such
period, the Corporation shall have the same powers and rights with
respect to such depository institution as in case of an insured
depository institution.
(8) TEMPORARY SUSPENSION OF INSURANCE.--
(A) IN GENERAL.--If the Board of Directors initiates a
termination proceeding under paragraph (2), and the Board of Directors,
after consultation with the appropriate Federal banking agency, finds
that an insured depository institution (other than a savings
association to which subparagraph (B) applies) has no tangible capital
under the capital guidelines or regulations of the appropriate Federal
banking agency, the Corporation may issue a temporary order suspending
deposit insurance on all deposits received by the institution.
(B) SPECIAL RULE FOR CERTAIN SAVINGS INSTITUTIONS.--
(i) CERTAIN GOODWILL INCLUDED IN TANGIBLE CAPITAL.--In
determining the tangible capital of a savings association for purposes
of this paragraph, the Board of Directors shall include goodwill to the
extent it is considered a component of capital under
section 5(t) of the Home Owners' Loan
Act. Any savings association which would be subject to a
suspension order under subparagraph (A) but for the operation of this
subparagraph, shall be considered by the Corporation to be a
"special supervisory association".
(ii) SUSPENSION ORDER.--The Corporation may issue a
temporary order suspending deposit insurance on all deposits received
by a special supervisory association whenever the Board of Directors
determines that--
(I) the capital of such association, as computed utilizing
applicable accounting standards, has suffered a material
decline;
{{6-29-07 p.1133}}
(II) that such association (or its directors or officers) is
engaging in an unsafe or unsound practice in conducting the business of
the association;
(III) that such association is in an unsafe or unsound condition
to continue operating as an insured association; or
(IV) that such association (or its directors or officers) has
violated any applicable law, rule, regulation, or order, or any
condition imposed in writing by a Federal banking agency, or any
written agreement including a capital improvement plan entered into
with any Federal banking agency, or that the association has failed to
enter into a capital improvement plan which is acceptable to the
Corporation within the time period set forth in section 5(t) of the
Home Owners' Loan Act.
Nothing in this paragraph limits the right of the Corporation or the
Director of the Office of Thrift Supervision to enforce a contractual
provision which authorizes the Corporation or the Director of the
Office of Thrift Supervision, as a successor to the Federal Savings and
Loan Insurance Corporation or the Federal Home Loan Bank Board, to
require a savings association to write down or amortize goodwill at a
faster rate than otherwise required under this Act or under applicable
accounting standards.
(C) EFFECTIVE PERIOD OF TEMPORARY ORDER.--Any order
issued under subparagraph (A) shall become effective not earlier than
10 days from the date of service upon the institution and, unless set
aside, limited, or suspended by a court in proceedings authorized
hereunder, such temporary order shall remain effective and enforceable
until an order of the Board under paragraph (3) becomes final or until
the Corporation dismisses the proceedings under paragraph (3).
(D) JUDICIAL REVIEW.--Before the close of the 10-day
period beginning on the date any temporary order has been served upon
an insured depository institution under subparagraph (A), such
institution may apply to the United States District Court for the
District of Columbia, or the United States district court for the
judicial district in which the home office of the institution is
located, for an injunction setting aside, limiting, or suspending the
enforcement, operation, or effectiveness of such order, and such court
shall have jurisdiction to issue such injunction.
(E) CONTINUATION OF INSURANCE FOR PRIOR DEPOSITS.--The
insured deposits of each depositor in such depository institution on
the effective date of the order issued under this paragraph, minus all
subsequent withdrawals from any deposits of such depositor, shall
continue to be insured, subject to the administrative proceedings as
provided in this Act.
(F) PUBLICATION OF ORDER.--The depository institution
shall give notice of such order to each of its depositors in such
manner and at such times as the Board of Directors may find to be
necessary and may order for the protection of depositors.
(G) NOTICE BY CORPORATION.--If the Corporation
determines that the depository institution has not substantially
complied with the notice to depositors required by the Board of
Directors, the Corporation may provide such notice in such manner as
the Board of Directors may find to be necessary and appropriate.
(H) LACK OF NOTICE.--Notwithstanding subparagraph (A),
any deposit made after the effective date of a suspension order issued
under this paragraph shall remain insured to the extent that the
depositor establishes that--
(i) such deposit consists of additions made by automatic deposit
the depositor was unable to prevent; or
(ii) such depositor did not have actual knowledge of the
suspension of insurance.
(9) FINAL DECISIONS TO TERMINATE INSURANCE.--Any
decision by the Board of Directors to--
(A) issue a temporary order terminating deposit insurance; or
(B) issue a final order terminating deposit insurance (other than
under subsection (p) or (q));
shall be made by the Board of Directors and may not be
delegated.
{{6-29-07 p.1134}}
(10) LOW- TO MODERATE-INCOME HOUSING LENDER.--In making
any determination regarding the termination of insurance of a solvent
savings association, the Corporation may consider the extent of the
association's low- to moderate-income housing loans.
[Codified to 12 U.S.C. 1818(a)]
[Source: Section 2[8(a)] of the Act of September 21, 1950 (Pub.
L. No. 797; 64 Stat. 879), effective September 21, 1950, as amended by
section 204 of title II of the Act of October 16, 1966 (Pub. L. No.
89--695; 80 Stat. 1054), effective October 16, 1966; section 6(c)(14)
of the Act of September 17, 1978 (Pub. L. No. 95--369; 92 Stat. 618),
effective September 17, 1978; section 113(g) of title I of the Act of
October 15, 1982 (Pub. L. No. 97--320; 96 Stat. 1473 and 1474),
effective October 15, 1982; section 201 of title II, and sections
901(d) and 926 of title IX of the Act of August 9, 1989 (Pub. L. No.
101--73; 103 Stat. 187, 188 and 450, respectively), effective August 9,
1989; section 1503(a)(2) of title XV of the Act of October 28, 1992
(Pub. L. No. 102--550; 106 Stat. 4048), effective October 28, 1992;
section 602(a)(11) and (12) of title VI of the Act of September 23,
1994 (Pub. L. No. 103--325; 108 Stat. 2288), effective September 23,
1994]
(b)(1) If, in the opinion of the appropriate Federal banking
agency, any insured depository institution, depository institution
which has insured deposits, or any institution-affiliated party is
engaging or has engaged, or the agency has reasonable cause to believe
that the depository institution or any institution-affiliated party is
about to engage, in an unsafe or unsound practice in conducting the
business of such depository institution, or is violating or has
violated, or the agency has reasonable cause to believe that the
depository institution or any institution-affiliated party is about to
violate, a law, rule, or regulation, or any condition imposed in
writing by a Federal banking agency in connection with any action on
any application, notice, or other request by the depository institution
or institution affiliated party or any written agreement entered into
with the agency, the appropriate Federal banking agency for the
depository institution may issue and serve upon the depository
institution or such party a notice of charges in respect thereof. The
notice shall contain a statement of the facts constituting the alleged
violation or violations or the unsafe or unsound practice or practices,
and shall fix a time and place at which a hearing will be held to
determine whether an order to cease and desist therefrom should issue
against the depository institution or the institution-affiliated party.
Such hearing shall be fixed for a date not earlier than thirty days nor
later than sixty days after service of such notice unless an earlier or
a later date is set by the agency at the request of any party so
served. Unless the party or parties so served shall appear at the
hearing personally or by a duly authorized representative, they shall
be deemed to have consented to the issuance of the cease-and-desist
order. In the event of such consent, or if upon the record made at any
such hearing, the agency shall find that any violation or unsafe or
unsound practice specified in the notice of charges has been
established, the agency may issue and serve upon the depository
institution or the institution-affiliated party an order to cease and
desist from any such violation or practice. Such order may, by
provisions which may be mandatory or otherwise, require the depository
institution or its institution-affiliated parties to cease and desist
from the same, and, further, to take affirmative action to correct the
conditions resulting from any such violation or practice.
(2) A cease-and-desist order shall become effective at the
expiration of thirty days after the service of such order upon the
depository institution or other person concerned (except in the case of
a cease-and-desist order issued upon consent, which shall become
effective at the time specified therein), and shall remain effective
and enforceable as provided therein, except to such extent as it is
stayed, modified, terminated, or set aside by action of the agency or a
reviewing court.
(3) This subsection, and subsections (c) through (s) and
subsection (u) of this section, and section 50 of this Act shall apply
to any bank holding company, and to any subsidiary (other than a bank)
of a bank holding company, as those terms are defined in the Bank
Holding Company Act of 1956, and to any organization organized and
operated under section 25(a) of the Federal Reserve Act or operating
under section 25 of the Federal Reserve Act, in the same manner as they
apply to a State member insured bank. Nothing in
{{12-29-06 p.1135}}this subsection or in subsection (c) of this
section shall authorize any Federal banking agency, other than the
Board of Governors of the Federal Reserve System, to issue a notice of
charges or cease-and-desist order against a bank holding company or any
subsidiary thereof (other than a bank or subsidiary of that bank).
(4) This subsection, and subsections (c) through (s) and
subsection (u) of this section, and section 50 of the Act shall apply
to any foreign bank or company to which subsection (a) of section 8 of
the International Banking Act of 1978 applies and to any subsidiary
(other than a bank) of any such foreign bank or company in the same
manner as they apply to a bank holding company and any subsidiary
thereof (other than a bank) under paragraph (3) of this subsection. For
the purposes of this paragraph, the term "subsidiary" shall have
the meaning assigned to it in section 2
of the Bank Holding Company Act of 1956.
(5) This section shall apply, in the same manner as it applies to
any insured depository institution for which the appropriate Federal
banking agency is the Comptroller of the Currency, to any national
banking association chartered by the Comptroller of the Currency,
including an uninsured association.
(6) Affirmative action to correct conditions resulting from
violations or practices.--The authority to issue an order under
this subsection and subsection (c) which requires an insured depository
institution or any institution-affiliated party to take affirmative
action to correct or remedy any conditions resulting from any violation
or practice with respect to which such order is issued includes the
authority to require such depository institution or such party to--
(A) make restitution or provide reimbursement, indemnification,
or guarantee against loss if--
(i) such depository institution or such party was unjustly
enriched in connection with such violation or practice; or
(ii) the violation or practice involved a reckless disregard for
the law or any applicable regulations or prior order of the appropriate
Federal banking agency;
(B) restrict the growth of the institution;
(C) dispose of any loan or asset involved;
(D) rescind agreements or contracts; and
(E) employ qualified officers or employees (who may be subject to
approval by the appropriate Federal banking agency at the direction of
such agency); and
(F) take such other action as the banking agency determines to be
appropriate.
(7) AUTHORITY TO LIMIT ACTIVITIES.--The authority to
issue an order under this subsection or subsection (c) includes the
authority to place limitations on the activities or functions of an
insured depository institution or any institution-affiliated party.
(8) Unsatisfactory asset quality, management, earnings, or
liquidity as unsafe or unsound practice.--If an insured depository
institution receives, in its most recent report of examination, a
less-than-satisfactory rating for asset quality, management, earnings,
or liquidity, the appropriate Federal banking agency may (if the
deficiency is not corrected) deem the institution to be engaging in an
unsafe or unsound practice for purposes of this subsection.
(9) Expansion of authority to savings and loan affiliates
and entities.--Subsections (a) through (s) and subsection (u) shall
apply to any savings and loan holding company and to any subsidiary
(other than a bank or subsidiary of that bank) of a savings and loan
holding company, whether wholly or partly owned, in the same manner as
such subsections apply to a savings association.
(10) STANDARD FOR CERTAIN ORDERS.--No authority under
this subsection or subsection (c) to prohibit any
institution-affiliated party from withdrawing, transferring, removing,
dissipating, or disposing of any funds, assets, or other property may
be exercised unless the appropriate Federal banking agency meets the
standards of Rule 65 of the Federal Rules of Civil Procedure, without
regard to the requirement of such rule that the applicant show that the
injury, loss, or damage is irreparable and immediate.
[Codified to 12 U.S.C. 1818(b)]
{{12-29-06 p.1136}}
[Source: Section 2[8(b)] of the Act of September 21, 1950 (Pub.
L. No. 797), as added by section 202 of title II of the Act of October
16, 1966 (Pub. L. No. 89--695; 80 Stat. 1046), effective October 16,
1966, as amended by section 110 of title I of the Act of October 28,
1974 (Pub. L. No. 93--495; 88 Stat. 1506), effective October 28, 1974;
section 11 of the Act of September 17, 1978 (Pub. L. No. 95--369; 92
Stat. 624), effective September 17, 1978; sections 107(a)(1) and 107(b)
of title I of the Act of November 10, 1978 (Pub. L. No. 95--630; 92
Stat. 3649 and 3653), effective March 10, 1979; sections 404(c),
425(b), and 425(c) of title IV of the Act of October 15, 1982 (Pub. L.
No. 97--320; 96 Stat. 1512 and 1524), effective October 15, 1982;
sections 201(a)(1) of title II and 901(b)(1)(A)--(B) and (d) and
902(a)(1) of title IX of the Act of August 9, 1989 (Pub. L. No.
101--73; 103 Stat. 187, 447 and 450, respectively), effective August 9,
1989; section 2596(a) of title XXV of the Act of November 29, 1990
(Pub. L. No. 101--647; 104 Stat. 4908), effective November 29, 1990;
section 131(c)(1) of title I of the Act of December 19, 1991 (Pub. L.
No. 102-242; 105 Stat. 2266), effective December 19, 1991; section
25(2) of the Act of December 17, 1993 (Pub. L. No. 103--204; 107 Stat.
2409), effective December 17, 1993; section 602(a)(13) of title VI of
the Act of September 23, 1994 (Pub. L. No. 103--325; 108 Stat. 2289),
effective September 23, 1994; section 3(a)(2)(A) of the Act of March
20, 1998 (Pub. L. No. 105--164; 112 Stat. 35) effective March 20, 1998;
sections 701(c)(1), (c)(2), 716(a)(1) and 717(1) of title VII of the
Act of October 13, 2006 (Pub. L. No. 109--351; 120 Stat. 1985, 1986,
and 1996 respectively), effective October 13, 2006]
(c)(1) Whenever the appropriate Federal banking agency shall
determine that the violation or threatened violation or the unsafe or
unsound practice or practices, specified in the notice of charges
served upon the depository institution or any institution-affiliated
party pursuant to paragraph (1) of subsection (b) of this section, or
the continuation thereof, is likely to cause insolvency or significant
dissipation of assets or earnings of the depository institutions, or
likely to weaken the condition of the depository institution or
otherwise prejudice the interests of its depositors prior to the
completion of the proceedings conducted pursuant to paragraph (1) of
subsection (b) of this section, the agency may issue a temporary order
requiring the depository institution or such party to cease and desist
from any such violation or practice and to take affirmative action to
prevent or remedy such insolvency, dissipation, condition, or prejudice
pending completion of such proceedings. Such order may include any
requirement authorized under subsection (b)(6). Such order shall become
effective upon service upon the depository institution or such
institution-affiliated party and, unless set aside, limited, or
suspended by a court in proceedings authorized by paragraph (2) of this
subsection, shall remain effective and enforceable pending the
completion of the administrative proceedings pursuant to such notice
and until such time as the agency shall dismiss the charges specified
in such notice, or if a cease-and-desist order is issued against the
depository institution or such party, until the effective date of such
order.
(2) Within ten days after the depository institution concerned or
any institution-affiliated party has been served with a temporary
cease-and-desist order, the depository institution or such party may
apply to the United States district court for the judicial district in
which the home office of the depository institution is located, or the
United States District Court for the District of Columbia, for an
injunction setting aside, limiting, or suspending the enforcement,
operation, or effectiveness of such order pending the completion of the
administrative proceedings pursuant to the notice of charges served
upon the depository institution or such party under paragraph (1) of
subsection (b) of this section, and such court shall have jurisdiction
to issue such injunction.
(3) INCOMPLETE OR INACCURATE RECORDS.--
(A) TEMPORARY ORDER.--If a notice of charges served
under subsection (b)(1) specifies, on the basis of particular facts and
circumstances, that an insured depository institution's books and
records are so incomplete or inaccurate that the appropriate Federal
banking agency is unable, through the normal supervisory process, to
determine the financial condition of that depository institution or the
details or purpose of any transaction or transactions that may have a
material effect on the financial condition of that depository
institution, the agency may issue a temporary order
requiring--
{{12-29-06 p.1137}}
(i) the cessation of any activity or practice which gave rise,
whether in whole or in part, to the incomplete or inaccurate state of
the books or records; or
(ii) affirmative action to restore such books or records to a
complete and accurate state, until the completion of the proceedings
under subparagraph (b)(1).
(B) EFFECTIVE PERIOD.--Any temporary order issued under
subsection (A)--
(i) shall become effective upon service; and
(ii) unless set aside, limited, or suspended by a court in
proceedings under paragraph (2), shall remain in effect and enforceable
until the earlier of--
(I) the completion of the proceeding initiated under subsection
(b)(1) in connection with the notice of charges; or
(II) the date the appropriate Federal banking agency determines,
by examination or otherwise, that the insured depository institution's
books and records are accurate and reflect the financial condition of
the depository institution.
[Codified to 12 U.S.C. 1818(c)]
[Source: Section 2[8(c)] of the Act of September 21, 1950 (Pub.
L. No. 797), as added by section 202 of title II of the Act of October
16, 1966 (Pub. L. No. 89--95; 80 Stat. 1047), effective October 16,
1966; as amended by section 107(c)(1) of title I of the Act of November
10, 1978 (Pub. L. No. 95--630; 92 Stat. 3654), effective March 10,
1979; sections 901(b)(1)(B), 901(d), and 902(a)(2) of title IX of the
Act of August 9, 1989 (Pub. L. No. 101--73; 103 Stat. 447, 450 and 451,
respectively), effective August 9, 1989; section 2596(b) of title XXV
of the Act of November 29, 1990 (Pub. L. No. 101--647; 104 Stat. 4908),
effective November 29, 1990; section 602(a)(14) of title VI of the Act
of September 23, 1994 (Pub. L. No. 103--325; 108 Stat. 2289), effective
September 23, 1994]
(d) In the case of violation or threatened violation of, or failure
to obey, a temporary cease-and-desist order issued pursuant to
paragraph (1) of subsection (c) of this section, the appropriate
Federal banking agency may apply to the United States district court,
or the United States court of any territory, within the jurisdiction of
which the home office of the depository institution is located, for an
injunction to enforce such order, and, if the court shall determine
that there has been such violation or threatened violation or failure
to obey, it shall be the duty of the court to issue such injunction.
[Codified to 12 U.S.C. 1818(d)]
[Source: Section 2[8(d)] of the Act of September 21, 1950 (Pub.
L. No. 797), as added by section 202 of title II of the Act of October
16, 1966 (Pub. L. No. 89--695; 80 Stat. 1047), effective October 16,
1966; as amended by section 901(d) of title IX of the Act of August 9,
1989 (Pub. L. No. 101--73; 103 Stat. 450), effective August 9,
1989]
(e) REMOVAL AND PROHIBITION AUTHORITY.--
(1) AUTHORITY TO ISSUE ORDER.--Whenever the appropriate
Federal banking agency determines that--
(A) any institution-affiliated party has, directly or
indirectly--
(i) violated--
(I) any law or regulation;
(II) any cease-and-desist order which has become final;
(III) any condition imposed in writing by a Federal banking
agency in connection with any action on any application, notice, or
request by such depository institution or institution-affiliated party;
or
(IV) any written agreement between such depository institution
and such agency;
(ii) engaged or participated in any unsafe or unsound practice in
connection with any insured depository institution or business
institution; or
(iii) committed or engaged in any act, omission, or practice
which constitutes a breach of such party's fiduciary
duty;
{{12-29-06 p.1138}}
(B) by reason of the violation, practice, or breach described in
any clause of subparagraph (A)--
(i) such insured depository institution or business institution
has suffered or will probably suffer financial loss or other damage;
(ii) the interests of the insured depository institution's
depositors have been or could be prejudiced; or
(iii) such party has received financial gain or other benefit by
reason of such violation, practice, or breach; and
(C) such violation, practice, or breach--
(i) involves personal dishonesty on the part of such party; or
(ii) demonstrates willful or continuing disregard by such party
for the safety or soundness of such insured depository institution or
business institution,
the appropriate Federal banking agency for the depsitory institution
may serve upon such party a written notice of the agency's intention to
remove such party from office or to prohibit any further participation
by such party, in any manner, in the conduct of the affairs of any
insured depository institution.
(2) SPECIFIC VIOLATIONS.--
(A) IN GENERAL.--Whenever the appropriate Federal
banking agency determines that--
(i) an institution-affiliated party has committed a violation of
any provision of subchapter II of chapter 53 of title 31, United States
Code, and such violation was not inadvertent or unintentional;
(ii) an officer or director of an insured depository institution
has knowledge that an institution-affiliated party of the insured
depository institution has violated any such provision or any provision
of law referred to in subsection (g)(1)(A)(ii);
(iii) an officer or director of an insured depository institution
has committed any violation of the Depository Institution Management
Interlocks Act,
the agency may serve upon such party, officer, or director a written
notice of the agency's intention to remove such party from office; or
(iv) an institution-affiliated party of a subsidiary (other than
a bank) of a bank holding company or of a subsidiary (other than a
savings association) of a savings and loan holding company has been
convicted of any criminal offense involving dishonesty or a breach of
trust or a criminal offense under section 1956, 1957, or 1960 of title
18, United States Code, or has agreed to enter into a pretrial
diversion or similar program in connection with a prosecution for such
an offense,
(B) FACTORS TO BE CONSIDERED.--In determining whether an
officer or director should be removed as a result of the application of
subparagraph (A)(ii), the agency shall consider whether the officer or
director took appropriate action to stop, or to prevent the recurrence
of, a violation described in such subparagraph.
(3) SUSPENSION ORDER.--
(A) SUSPENSION OR PROHIBITION AUTHORIZED.--If the
appropriate Federal banking agency serves written notice under
paragraph (1) or (2) to any institution-affiliated party of such
agency's intention to issue an order under such paragraph, the
appropriate Federal banking agency may suspend such party from office
or prohibit such party from further participation in any manner in the
conduct of the affairs of the depository institution, if the agency--
(i) determines that such action is necessary for the protection
of the depository institution or the interests of the depository
institution's depositors; and
(ii) serves such party with written notice of the suspension
order.
(B) EFFECTIVE PERIOD.--Any suspension order issued under
subparagraph (A)--
(i) shall become effective upon service; and
(ii) unless a court issues a stay of such order under subsection
(f), shall remain in effect and enforceable until--
(I) the date the appropriate Federal banking agency dismisses the
charges contained in the notice served under paragraph (1) or (2) with
respect to such party, or
{{12-29-06 p.1139}}
(II) the effective date of an order issued by the agency to such
party under paragraph (1) or (2).
(C) COPY OF ORDER.--If an appropriate Federal banking
agency issues a suspension order under subparagraph (A) to any
institution-affiliated party, the agency shall serve a copy of such
order on any insured depository institution with which such party is
associated at the time such order is issued.
(4) A notice of intention to remove an institution-affiliated
party from office or to prohibit such party from participating in the
conduct of the affairs of an insured depository institution, shall
contain a statement of the facts constituting grounds therefor, and
shall fix a time and place at which a hearing will be held thereon.
Such hearing shall be fixed for a date not earlier than thirty days nor
later than sixty days after the date of service of such notice, unless
an earlier or a later date is set by the agency at the request of (A)
such party, and for good cause shown, or (B) the Attorney General of
the United States. Unless such party shall appear at the hearing in
person or by a duly authorized representative, such party shall be
deemed to have consented to the issuance of an order of such removal or
prohibition. In the event of such consent, or if upon the record made
at any such hearing the agency shall find that any of the grounds
specified in such notice have been established, the agency may issue
such orders of suspension or removal from office, or prohibition from
participation in the conduct of the affairs of the depository
institution, as it may deem appropriate. Any such order shall become
effective at the expiration of thirty days after service upon such
depository institution and such party concerned (except in the case of
an order issued upon consent, which shall become effective at the time
specified therein). Such order shall remain effective and enforceable
except to such extent as it is stayed, modified, terminated, or set
aside by action of the agency or a reviewing court.
(5) For the purpose of enforcing any law, rule, regulation, or
cease-and-desist order in connection with an interlocking relationship,
the term "officer" within the term "institution-affiliated
party" as used in this subsection means an employee or officer with
management functions, and the term "director" within the term
"institution-affiliated party" as used in this subsection
includes an advisory or honorary director, a trustee of a depository
institution under the control of trustees, or any person who has a
representative or nominee serving in any such capacity.
(6) PROHIBITION OF CERTAIN SPECIFIC ACTIVITIES.--Any
person subject to an order issued under this subsection shall not--
(A) participate in any manner in the conduct of the affairs of
any institution or agency specified in paragraph (7)(A);
(B) solicit, procure, transfer, attempt to transfer, vote, or
attempt to vote any proxy, consent, or authorization with respect to
any voting rights in any institution described in subparagraph (A);
(C) violate any voting agreement previously approved by the
appropriate Federal banking agency; or
(D) vote for a director, or serve or act as an
institution-affiliated party.
(7) INDUSTRYWIDE PROHIBITION.--
(A) IN GENERAL.--Except as provided in subparagraph (B),
any person who, pursuant to an order issued under this subsection or
subsection (g), has been removed or suspended from office in an insured
depository institution or prohibited from participating in the conduct
of the affairs of an insured depository institution may not, while such
order is in effect, continue or commence to hold any office in, or
participate in any manner in the conduct of the affairs of--
(i) any insured depository institution;
(ii) any institution treated as an insured bank under subsection
(b)(3) or (b)(4), or as a savings association under subsection (b)(9);
(iii) any insured credit union under the Federal Credit Union
Act;
(iv) any institution chartered under the Farm Credit Act of 1971;
(v) any appropriate Federal depository institution regulatory
agency;
(vi) the Federal Housing Finance Board and any Federal home loan
bank; and
(vii) the Resolution Trust Corporation.
(B) EXCEPTION IF AGENCY PROVIDES WRITTEN CONSENT.--If,
on or after the date an order is issued under this subsection which
removes or suspends from office any
{{12-29-06 p.1140}}institution-affiliated party or prohibits such
party from participating in the conduct of the affairs of an insured
depository institution, such party receives the written consent of--
(i) the agency that issued such order; and
(ii) the appropriate Federal financial institutions regulatory
agency of the institution described in any clause of subparagraph (A)
with respect to which such party proposes to become an
institution-affiliated party,
subparagraph (A) shall, to the extent of such consent, cease to apply
to such party with respect to the institution described in each written
consent. Any agency that grants such a written consent shall report
such action to the Corporation and publicly disclose such consent.
(C) Violation of paragraph treated as violation of
order.--Any violation of subparagraph (A) by any person who is
subject to an order described in such subparagraph shall be treated as
a violation of the order.
(D) Appropriate federal financial institutions regulatory
agency defined.--For purposes of this paragraph and subsection (j),
the term "appropriate Federal financial institutions regulatory
agency" means--
(i) the appropriate Federal banking agency, in the case of an
insured depository institution;
(ii) the Farm Credit Administration, in the case of an
institution chartered under the Farm Credit Act of 1971;
(iii) the National Credit Union Administration Board, in the case
of an insured credit union (as defined in section 101(7) of the Federal
Credit Union Act);
(iv) the Secretary of the Treasury, in the case of the Federal
Housing Finance Board and any Federal home loan bank; and
(v) the Oversight Board, in the case of the Resolution Trust
Corporation.
(E) CONSULTATION BETWEEN AGENCIES.--The agencies
referred to in clauses (i) and (ii) of subparagraph (B) shall consult
with each other before providing any written consent described in
subparagraph (B).
(F) APPLICABILITY.--This paragraph shall only apply to a
person who is an individual, unless the appropriate Federal banking
agency specifically finds that it should apply to a corporation, firm,
or other business enterprise.
[Codified to 12 U.S.C. 1818(e)]
[Source: Section 2[8(e)] of the Act of September 21, 1950 (Pub.
L. No. 797), as added by section 202 of title II of the Act of October
16, 1966 (Pub. L. No. 89--695; 80 Stat. 1047), effective October 16,
1966; as amended by sections 107(d)(1) of title I and 208(a) of title
II of the Act of November 10, 1978 (Pub. L. No. 95--630; 92 Stat. 3656
and 3674), effective March 10, 1979; section 427(d)(1) of title IV of
the Act of October 15, 1982 (Pub. L. No. 97--320; 96 Stat. 1525),
effective October 15, 1982; section 201(a)(1) of title II and sections
901(b)(1)(C)--(D) and (d), 903(1)(1)--(3), and 904(a) of title IX of
the Act of August 9, 1989 (Pub. L. No. 101--73; 103 Stat. 187, 447,
453, 454, and 457, respectively), effective August 9, 1989; section
1504(a)(1) of title XV of the Act of October 28, 1992 (Pub. L. No.
102--550; 106 Stat. 4051), effective October 28, 1992; section
3(a)(2)(B) of the Act of March 20, 1998 (Pub. L. No. 105--164; 112
Stat. 35) effective March 20, 1998; section 303 of title II, sections
710(b), 716(a)(2), and 717(2)(A) and (B) of title VII of the Act of
October 13, 2006 (Pub. L. No. 109--351; 120 Stat. 1970, 1991, and 1996,
respectively), effective October 13, 2006]
(f) Within ten days after any institution-affiliated party has been
suspended from office and/or prohibited from participation in the
conduct of the affairs of an insured depository institution under
subsection (e)(3) of this section, such party may apply to the United
States district court for the judicial district in which the home
office of the depository institution is located, or the United States
District Court for the District of Columbia, for a stay of such
suspension and/or prohibition pending the completion of the
administrative proceedings pursuant to the notice served upon such
party under subsection (e)(1) or (e)(2) of this section, and such court
shall have jurisdiction to stay such suspension and/or prohibition.
[Codified to 12 U.S.C. 1818(f)]
{{6-29-07 p.1141}}
[Source: Section 2[8(f)] of the Act of September 21, 1950 (Pub.
L. No. 797), as added by section 202 of title II of the Act of October
16, 1966 (Pub. L. No. 89--695; 80 Stat. 1048), effective October 16,
1966; as amended by section 427(d)(2) of title IV of the Act of October
15, 1982 (Pub. L. No. 97--320; 96 Stat. 1526), effective October 15,
1982; sections 901(b)(1)(E) and (d) and 903(a)(4)(A) of title IX of the
Act of August 9, 1989 (Pub. L. No. 101--73; 103 Stat. 447, 450 and 455,
respectively), effective August 9, 1989]
(g)
(1) Suspension, removal, and prohibition from participation
orders in the case of certain criminal offenses.--
(A) IN GENERAL.--Whenever any institution-affiliated
party is the subject of any information, indictment, or complaint,
involving the commission of participation in--
(i) a crime involving dishonesty or breach of trust which is
punishable by imprisonment for a term exceeding one year under State or
Federal law, or
(ii) a criminal violation of section 1956, 1957, or 1960 of title
18, United States Code, or section 5322 or 5324 of title 31, United
States Code,
the appropriate Federal banking agency may, if continued service or
participation by such party posed, poses, or may pose a threat to the
interests of the depositors of, or threatened, threatens, or may
threaten to impair public confidence in, any relevant depository
institution (as defined in subparagraph (E)), by written notice served
upon such party, suspend such party from office or prohibit such party
from further participation in any manner in the conduct of the affairs
of any depository institution.
(B) PROVISIONS APPLICABLE TO NOTICE.--
(i) COPY.-- A copy of any notice under subparagraph (A)
shall also be served upon any depository institution that the subject
of the notice is affiliated with at the time the notice is issued.
(ii) EFFECTIVE PERIOD.--A suspension or prohibition
under subparagraph (A) shall remain in effect until the information,
indictment, or complaint referred to in such subparagraph is finally
disposed of or until terminated by the agency.
(C) REMOVAL OR PROHIBITION.--
(i) IN GENERAL.--If a judgment of conviction
or an agreement to enter a pretrial diversion or other similar program
is entered against an institution-affiliated party in connection with a
crime described in subparagraph (A)(i), at such time as such judgment
is not subject to further appellate review, the appropriate Federal
banking agency may, if continued service or participation by such party
posed, poses, or may pose a threat to the interests of the depositors
of, or threatened, threatens, or may threaten to impair public
confidence in, any relevant depository institution (as defined in
subparagraph (E)), issue and serve upon such party an order removing
such party from office or prohibiting such party from further
participation in any manner in the conduct of the affairs of any
depository institution without the prior written consent of the
appropriate agency.
(ii) REQUIRED FOR CERTAIN OFFENSES.--In the case of a
judgment of conviction or agreement against an institution-affiliated
party in connection with a violation described in subparagraph (A)(ii),
the appropriate Federal banking agency shall issue and serve upon such
party an order removing such party from office or prohibiting such
party from further participation in any manner in the conduct of the
affairs of any depository institution without the prior written consent
of the appropriate agency.
(D) PROVISIONS APPLICABLE TO ORDER.--
(i) COPY.--A copy of any order under subparagraph (C)
shall also be served upon any depository institution that the subject
of the order is affiliated with at the time the order is issued,
whereupon the institution-affiliated party who is subject to the order
(if a director or an officer) shall cease to be a director or officer
of such depository institution.
(ii) EFFECT OF ACQUITTAL.--A finding of not guilty or
other disposition of the charge shall not preclude the agency from
instituting proceedings after such findings or disposition to remove
such party from office or to prohibit further participation in
depository institution affairs, pursuant to paragraph (1), (2), or (3)
of subsection (e) of this section.
{{6-29-07 p.1142}}
(iii) EFFECTIVE PERIOD.--Any notice of suspension or
order of removal issued under this paragraph shall remain effective and
outstanding until the completion of any hearing or appeal authorized
under paragraph (3) unless terminated by the agency.
(2) If at any time, because of the suspension of one or
more directors pursuant to this section, there shall be on the board of
directors of a national bank less than a quorum of directors not so
suspended, all powers and functions vested in or exercisable by such
board shall vest in and be exercisable by the director or directors on
the board not so suspended, until such time as there shall be a quorum
of the board of directors. In the event all of the directors of a
national bank are suspended pursuant to this section, the Comptroller
of the Currency shall appoint persons to serve temporarily as directors
in their place and stead pending the termination of such suspensions,
or until such time as those who have been suspended, cease to be
directors of the bank and their respective successors take office.
(3) Within thirty days from service of any notice of suspension
or order of removal issued pursuant to paragraph (1) of this
subsection, the institution-affiliated party concerned may request in
writing an opportunity to appear before the agency to show that the
continued service to or participation in the conduct of the affairs of
the depository institution by such party does not, or is not likely to,
pose a threat to the interests of the bank's depositors or threaten to
impair public confidence in the depository institution. Upon receipt of
any such request, the appropriate Federal banking agency shall fix a
time (not more than thirty days after receipt of such request, unless
extended at the request of such party) and place at which such party
may appear, personally or through counsel, before one or more members
of the agency or designated employees of the agency to submit written
materials (or, at the discretion of the agency, oral testimony) and
oral argument. Within sixty days of such hearing, the agency shall
notify such party whether the suspension or prohibition from
participation in any manner in the conduct of the affairs of the
depository institution will be continued, terminated, or otherwise
modified, or whether the order removing such party from office or
prohibiting such party from further participation in any manner in the
conduct of the affairs of the depository institution will be rescinded
or otherwise modified. Such notification shall contain a statement of
the basis for the agency's decision, if adverse to such party. The
Federal banking agencies are authorized to prescribe such rules as may
be necessary to effectuate the purposes of this subsection.
(E) RELEVANT DEPOSITORY INSTITUTION.--For purposes of
this subsection, the term relevant depository institution' means any
depository institution of which the party is or was an
institution-affiliated party at the time at which--
(i) the information, indictment, or complaint described in
subparagraph (A) was issued; or
(ii) the notice is issued under subparagraph (A) or the order is
issued under subparagraph (C)(i).
[Codified to 12 U.S.C. 1818(g)]
[Source: Section 2[8(g)] of the Act of September 21, 1950 (Pub.
L. No. 797), as added by section 202 of title II of the Act of October
16, 1966 (Pub. L. No. 89--695; 80 Stat. 1050), effective October 16,
1966; as amended by section 111(a)(1) of title I of the Act of November
10, 1978 (Pub. L. No. 95--630; 92 Stat. 3665), effective March 10,
1979; section 427(d)(3) of title IV of the Act of October 15, 1982
(Pub. L. No. 97--320; 96 Stat. 1526), effective October 15, 1982;
section 901(b)(1)(F)--(G) and (d), section 903(a)(4)(B), and section
906(a) of title IX of the Act of August 9, 1989 (Pub. L. No. 101--73;
103 Stat. 447, 448, 450, 455, and 462), effective August 9, 1989;
section 1504(a)(2) of title XV of the Act of October 28, 1992 (Pub. L.
No. 102--550; 106 Stat. 4052), effective October 28, 1992; section
411(c)(2)(A) of title IV and section 602(a)(15) of title VI of the Act
of September 23, 1994 (Pub. L. No. 103--325; 108 Stat. 2289), effective
September 23, 1994; section 708(a) of title VII of the Act of October
13, 2006 (Pub. L. No. 109--351; 120 Stat. 1988 and 1989), effective
October 13, 2006]
(h)(1) Any hearing provided for in this section (other than the
hearing provided for in subsection (g)(3) of this section) shall be
held in the Federal judicial district or in the territory in which the
home office of the depository institution is located unless the party
afforded the hearing consents to another place, and shall be conducted
in accordance with the provisions of chapter 5 of title 5 of the United
States Code. After such hearing, and within ninety days after the
appropriate Federal banking agency or Board of Governors
of
{{6-29-07 p.1143}}the Federal Reserve System has notified the
parties that the case has been submitted to it for final decision, it
shall render its decision (which shall include findings of fact upon
which its decision is predicated) and shall issue and serve upon each
party to the proceeding an order or orders consistent with the
provisions of this section. Judicial review of any such order shall be
exclusively as provided in this subsection (h). Unless a petition for
review is timely filed in a court of appeals of the United States, as
hereinafter provided in paragraph (2) of this subsection, and
thereafter until the record in the proceeding has been filed as so
provided, the issuing agency may at any time, upon such notice and in
such manner as it shall deem proper, modify, terminate, or set aside
any such order. Upon such filing of the record, the agency may modify,
terminate, or set aside any such order with permission of the court.
(2) Any party to any proceeding under paragraph (1) may obtain a
review of any order served pursuant to paragraph (1) of this subsection
(other than an order issued with the consent of the depository
institution or the institution-affiliated party concerned, or an order
issued under paragraph (1) of subsection (g) of this section) by the
filing in the court of appeals of the United States for the circuit in
which the home office of the depository institution is located, or in
the United States Court of Appeals for the District of Columbia
Circuit, within thirty days after the date of service of such order, a
written petition praying that the order of the agency be modified,
terminated, or set aside. A copy of such petition shall be forthwith
transmitted by the clerk of the court to the agency, and thereupon the
agency shall file in the court the record in the proceeding, as
provided in section 2112 of title 28 of the United States Code. Upon
the filing of such petition, such court shall have jurisdiction, which
upon the filing of the record shall except as provided in the last
sentence of said paragraph (1) be exclusive, to affirm, modify,
terminate, or set aside, in whole or in part, the order of the agency.
Review of such proceedings shall be had as provided in chapter 7 of
title 5 of the United States Code. The judgment and decree of the court
shall be final, except that the same shall be subject to review by the
Supreme Court upon certiorari, as provided in section 1254 of title 28
of the United States Code.
(3) The commencement of proceedings for judicial review under
paragraph (2) of this subsection shall not, unless specifically ordered
by the court, operate as a stay of any order issued by the agency.
[Codified to 12 U.S.C. 1818(h)]
[Source: Section 2[8(h)] of the Act of September 21, 1950 (Pub.
L. No. 797), as added by section 202 of title II of the Act of October
16, 1966 (Pub. L. No. 89--695; 80 Stat. 1051), effective October 16,
1966; as amended by section 111(a)(2) of title I of the Act of November
10, 1978 (Pub. L. No. 95--630; 92 Stat. 3667), effective March 10,
1979; section 901(b)(1)(H) and (d) and section 920(a) of title IX of
the Act of August 9, 1989 (Pub. L. No. 101--73; 103 Stat. 448, 450, and
459, respectively), effective August 9, 1989; section 2547(a)(2) of
title XXV of the Act of November 29, 1990 (Pub. L. No. 101--647; 104
Stat. 4887), effective November 29, 1990]
(i)(1) The appropriate Federal banking agency may in its discretion
apply to the United States district court, or the United States court
of any territory, within the jurisdiction of which the home office of
the depository institution is located, for the enforcement of any
effective and outstanding notice or order issued under this section or
under section 38 or 39, and such courts shall have jurisdiction and
power to order and require compliance herewith; but except as otherwise
provided in this section or under
section 38 or
39 no court shall have
jurisdiction to affect by injunction or otherwise the issuance
or enforcement of any notice or order under any such section, or to
review, modify, suspend, terminate, or set aside any such notice or
order.
(2) CIVIL MONEY PENALTY.--
(A) FIRST TIER.--Any insured depository institution
which, and any institution-affiliated party who--
(i) violates any law or regulation;
(ii) violates any final order or temporary order issued pursuant
to subsection (b), (c), (e), (g), or (s) or any final order under
section 38 or 39;
(iii) violates any condition imposed in writing by a Federal
banking agency in connection with any action on any application,
notice, or other request by the credit union or institution-affiliated
party; or
{{6-29-07 p.1144}}
(iv) violates any written agreement between such depository
institution and such agency,
shall forfeit and pay a civil penalty of not more than $5,000 for
each day during which such violation continues.
(B) SECOND TIER.--Notwithstanding subparagraph (A), any
insured depository institution which, and any institution-affiliated
party who--
(i)(I) commits any violation described in any clause of
subparagraph (A);
(II) recklessly engages in an unsafe or unsound practice in
conducting the affairs of such insured depository institution; or
(III) breaches any fiduciary duty;
(ii) which violation, practice, or breach--
(I) is part of a pattern of misconduct;
(II) causes or is likely to cause more than a minimal loss to
such depository institution; or
(III) results in pecuniary gain or other benefit to such party,
shall forfeit and pay a civil penalty of not more than $25,000 for
each day during which such violation, practice, or breach continues.
(C) THIRD TIER.--Notwithstanding subparagraphs (A) and
(B), any insured depository institution which, and any
institution-affiliated party who--
(i) knowingly--
(I) commits any violation described in any clause of subparagraph
(A);
(II) engages in any unsafe or unsound practice in conducting the
affairs of such depository institution; or
(III) breaches any fiduciary duty; and
(ii) knowingly or recklessly causes a substantial loss to such
depository institution or a substantial pecuniary gain or other benefit
to such party by reason of such violation, practice, or breach,
shall forfeit and pay a civil penalty in an amount not to exceed the
applicable maximum amount determined under subparagraph (D) for each
day during which such violation, practice, or breach continues.
(D) Maximum amounts of penalties for any violation described
in subparagraph (c).--The maximum daily amount of any civil penalty
which may be assessed pursuant to subparagraph (C) for any violation,
practice, or breach described in such subparagraph is--
(i) in the case of any person other than an insured depository
institution, an amount to not exceed $1,000,000; and
(ii) in the case of any insured depository institution, an amount
not to exceed the lesser of--
(I) $1,000,000; or
(II) 1 percent of the total assets of such institution.
(E) ASSESSMENT.--
(i) WRITTEN NOTICE.--Any penalty imposed under
subparagraph (A), (B), or (C) may be assessed and collected by the
appropriate Federal banking agency by written notice.
(ii) FINALITY OF ASSESSMENT.--If, with respect to any
assessment under clause (i), a hearing is not requested pursuant to
subparagraph (H) within the period of time allowed under such
subparagraph, the assessment shall constitute a final and unappealable
order.
(F) AUTHORITY TO MODIFY OR REMIT PENALTY.--Any
appropriate Federal banking agency may compromise, modify, or remit any
penalty which such agency may assess or had already assessed under
subparagraph (A), (B), or (C).
(G) MITIGATING FACTORS.--In determining the amount of
any penalty imposed under subparagraph (A), (B), or (C), the
appropriate agency shall take into account the appropriateness of the
penalty with respect to--
(i) the size of financial resources and good faith of the insured
depository institution or other person charged;
(ii) the gravity of the violation;
(iii) the history of previous violations; and
(iv) such other matters as justice may require.
{{2-29-08 p.1144.01}}
(H) HEARING.--The insured depository institution or
other person against whom any penalty is assessed under this paragraph
shall be afforded an agency hearing if such institution or person
submits a request for such hearing within 20 days after the issuance of
the notice of assessment.
(I) COLLECTION.--
(i) REFERRAL.--If any insured depository institution or
other person fails to pay an assessment after any penalty assessed
under this paragraph has become final, the agency that imposed the
penalty shall recover the amount assessed by action in the appropriate
United States district court.
(ii) APPROPRIATENESS OF PENALTY NOT REVIEWABLE.--In any
civil action under clause (i), the validity and appropriateness of the
penalty shall not be subject to review.
(J) DISBURSEMENT.--All penalties collected under
authority of this paragraph shall be deposited into the Treasury.
(K) REGULATIONS.--Each appropriate Federal banking
agency shall prescribe regulations establishing such procedures as may
be necessary to carry out this paragraph.
(3) Notice or order under this section after separation from
service.--The resignation, termination of employment or
participation, or separation of an institution-affiliated party
(including a separation caused by the closing of an insured depository
institution) shall not affect the jurisdiction and authority of the
appropriate Federal banking agency to issue any notice or order and
proceed under this section against any such party, if such notice or
order is served before the end of the 6-year period beginning on the
date such party ceased to be such a party with respect to such
depository institution (whether such date occurs before, on, or after
the date of the enactment of this paragraph).
(4) PREJUDGMENT ATTACHMENT.--
(A) IN GENERAL.--In any action brought by an appropriate
Federal banking agency (excluding the Corporation when acting in a
manner described in section
11(d)(18)) pursuant to this section, or in actions brought in
aid of, or to enforce an order in, any administrative or other civil
action for money damages, restitution, or civil money penalties brought
by such agency, the court may, upon application of the agency, issue a
restraining order that--
(i) prohibits any person subject to the proceeding from
withdrawing, transferring, removing, dissipating, or disposing of any
funds, assets or other property; and
(ii) appoints a temporary receiver to administer the restraining
order.
(B) STANDARD.--
(i) SHOWING.--Rule 65 of the Federal Rules of Civil
Procedure shall apply with respect to any proceeding under subparagraph
(A) without regard to the requirement of such rule that the applicant
show that the injury, loss, or damage is irreparable and immediate.
(ii) STATE PROCEEDING.--If, in the case of any
proceeding in a State court, the court determines that rules of civil
procedure available under the laws of such State provide substantially
similar protections to a party's right to due process as Rule 65 (as
modified with respect to such proceeding by clause (i)), the relief
sought under subparagraph (A) may be requested under the laws of such
State.
[Codified to 12 U.S.C. 1818(i)]
[Source: Section 2[8(i)] of the Act of September 21, 1950 (Pub.
L. No. 797), as added by section 202 of title II of the Act of October
16, 1966 (Pub. L. No. 89--695; 80 Stat. 1051), effective October 16,
1966; and as amended by section 107(e)(1) of title I of the Act of
November 10, 1978 (Pub. L. No. 95--630; 92 Stat. 3660), effective March
10, 1979; section 424(c), (d)(6) and (e) of title IV of the Act of
October 15, 1982 (Pub. L. No. 97--320; 96 Stat. 1523), effective
October 15, 1982; section 1359(a)(2) of subtitle H of title I of the
Act of October 27, 1986 (Pub. L. No. 99--570; 100 Stat. 3207--27),
effective January 27, 1987; section 201(a)(1) of title II and sections
901(d), 905(a) and 907(a) of title IX of the Act of August 9, 1989
(Pub. L. No. 101--73; 103 Stat. 187, 450, 459, and 462, respectively),
effective August 9, 1989; section 2521(b) of title XXV of the Act of
November 29, 1990 (Pub. L. No. 101--647; 104 Stat. 4864), effective
November 29, 1990; section 131(c)(2) of title I of the Act of December
19, 1991 (Pub. L. No. 102--242; 105 Stat. 2247),
effective
{{2-29-08 p.1144.02}}December 19, 1992; sections 1603(d)(2),
1603(d)(3)(A)--(B), and 1603(d)(4) of title XVI of the Act of October
28, 1992 (Pub. L. No. 102--550; 106 Stat. 4079, 4080), effective
October 28, 1992; section 25(1) of the Act of December 17, 1993 (Pub.
L. No. 103--204; 107 Stat. 2408), effective December 17, 1993; sections
715(a), 716(a)(3), and 717(3) of of title VII of the Act of October 13,
2006 (Pub. L. No. 109--351; 120 Stat. 1995--1997), effective October
13, 2006]
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