6-01-04.3. Assessment of civil money penalties

6-01-04.3. Assessment of civil money penalties

1. The commissioner or the board may assess a civil money penalty against a financial

institution, financial corporation, or credit union, or an officer, director, employee,

agent, or person participating in the conduct of the affairs of the financial corporation,

financial institution, or credit union upon finding one or more of the following:

a. Failure to comply with a permanent or temporary cease and desist order that has

been voluntarily consented to or issued pursuant to section 6-01-04.2;

b. Failure to comply with a final order that has been voluntarily consented to or

issued following formal proceedings under chapter 28-32;

c. Payment of dividends in violation of section 6-03-36;

d. Loans and leases to one borrower or concern which exceed the limitations set

forth in sections 6-03-59 and 6-03-59.1;

e. Loans to directors, officers, and employees in violation of section 6-03-60;

f. The intentional filing of inaccurate or misleading call reports required by section

6-03-70 or 6-06-08;

g. Violations of loan limitations under subsection 1 of section 6-06-12 or title 12,

chapter 7, Code of Federal Regulations, subchapter A, part 723, as amended

February 5, 2019;

h. Loans in violation of section 6-06-14.1; or

i. Failure to file notice of change of control under section 6-08-08.1.

2. The commissioner or the board commences administrative proceedings to assess civil

money penalties by serving a complaint on the respondent stating the factual basis for

the commissioner's or board's belief that a violation has occurred and the amount of

civil penalties that the complaint seeks to impose. The complaint must contain a notice

of an opportunity for an administrative hearing conducted under chapter 28-32. The

date for the hearing must be set not less than thirty days after the date the complaint is

served upon the respondent. If assessment of civil money penalties are proposed

based on conditions described in subdivisions c through i of subsection 1, a complaint

may not be filed unless the respondent has been provided with prior orders,

examination reports, or other written communications, and has willfully refused to take

corrective action that the respondent was capable of taking at the time.

3. If the respondent fails to answer the complaint within twenty days of its service, the

commissioner or board may enter an order imposing civil money penalties upon the

respondent. If a hearing is held and the board concludes that the record so warrants,

the board may enter an order imposing civil money penalties upon the respondent.

The assessment order is effective and enforceable immediately upon service or upon

a date specified in the order, and remains effective and enforceable until it is stayed,

modified, terminated, or set aside by action of the board or a reviewing court.

4. In determining the amount of civil penalty imposed, the commissioner or board shall

consider whether good faith was exercised, and the gravity of the violation and any

previous violations. The commissioner or board may not impose a civil money penalty

in excess of one hundred thousand dollars for each occurrence and one thousand

dollars per day for each day that the violation continues after service of an order. Any

civil money penalties collected under this section must be paid to the department of

financial institutions and deposited in the financial institutions regulatory fund.