Director, cease and desistorders--grounds--hearing--procedure--review, temporary orders.
370.140. 1. (1) The director may issue cease and desistorders whenever it appears to him, upon competent and substantialevidence from any report or examination, that any person:
(a) Is engaging or has engaged in an unsafe or unsoundpractice in conducting the business of a credit union;
(b) Is violating or has violated a material provision of anylaw, rule, regulation, or any condition imposed in writing by thedirector or any written agreement made with the director;
(c) Is about to do the acts prohibited in paragraph (a) or(b) of this subdivision if, in his opinion, the threat whichexists is based upon reasonable cause.
(2) Before any cease and desist order shall be issued, acopy of the proposed order, a list of the reasons for such order,and a list of the specific violations relied upon with suchdetails that the credit union may readily respond, together withan order to show cause why such cease and desist order should notbe issued, shall be served, either personally or by certifiedmail, on the chairman of the board/president, the supervisorycommittee, the president/manager of the credit union or any otherconcerned person.
2. (1) Upon issuing any order to show cause, the directorshall notify the person named therein that the person is entitledto a public hearing before the director if a request for ahearing is made in writing to the director within fifteen daysfrom the date of the service of the order to show cause why thecease and desist order should not be issued.
(2) The cease and desist order shall be issued fifteen daysafter the service of the order to show cause if no request for apublic hearing is made as above provided.
(3) Upon receipt of a request for a hearing, the directorshall set a time and place for the hearing which shall not beless than ten days or more than thirty days from the receipt ofthe request, or as otherwise agreed upon by the parties. Noticeof the time and place shall be given by the director not lessthan seven days before the hearing.
(4) At the hearing the person may be represented by counseland shall be entitled to be advised, at such hearing or no laterthan seventy-two hours prior to the hearing upon written requestto the director, of the nature and source of any adverse evidenceprocured by the director, and shall be given the opportunity tosubmit any relevant written or oral evidence in his behalf toshow cause why the cease and desist order should not be issued.No order shall be later overturned due to a failure to give priornotice of any information used at the hearing so long as thedirector acted in good faith in providing the information.
(5) At the hearing the director or any of his duly appointedagents may compel the attendance before him, and the director mayexamine, under oath, the directors, officers, employees, agents,or any other person in reference to the condition, affairs,management of the business, or any matters relating to the creditunion. He may administer oaths or affirmations, and he shallhave power to issue subpoenas to compel the attendance ofwitnesses, and to issue subpoenas duces tecum to require andcompel the production of records, books, papers, contracts, orother documents if necessary. Moreover, he shall, upon requestof respondents, issue such subpoenas and subpoenas duces tecum onbehalf of the respondent.
(6) At the conclusion of the hearing, or within fifteen daysthereafter, the director shall issue the cease and desist orderas proposed or as subsequently modified or shall notify theperson that no order shall be issued. Such cease and desistorder shall be served on the person either personally or bycertified mail as set out in subdivision (2) of subsection 1 ofthis section. Further, upon issuing such cease and desist order,the director, at his discretion, may supplement such order with awritten statement advising the person that, conditioned uponsuitable actions having been taken to correct the violations orpractices set out in the order and upon competent and substantialevidence of such corrective actions having been submitted to thedirector for his approval, he may rescind the cease and desistorder.
(7) The circuit court of Cole County, or the circuit courtof the county in which the principal office of such person islocated, shall have jurisdiction to review any cease and desistorder of the director under provisions of sections 536.100 to536.150, RSMo; and if any person against whom an order is issuedfails to request judicial review, or if, after judicial review,the director's cease and desist order is upheld, the order shallbecome final.
(8) The commencement of proceedings under subdivision (7) ofthis section does not, unless specifically ordered by the court,operate as a stay of the director's order.
(9) Every hearing in an administrative proceeding shall bepublic, unless the director in his discretion grants a request,joined in by all the respondents, that the hearing be conductedprivately.
3. Whenever it shall appear to the director that theviolation or threatened violation or the unsafe or unsoundpractice or practices specified in the cease and desist orderserved upon the person participating in the conduct of theaffairs of such credit union pursuant to subsection 1 of thissection, or that the continuation of such violation or practiceis likely to cause insolvency or substantial dissipation of theassets or earnings of the credit union or is likely to seriouslyweaken the condition of the credit union or otherwise seriouslyprejudice the interests of its members and its shareholders,prior to the completion of the proceedings conducted pursuant tosaid subsection, the director may issue a temporary cease anddesist order, effective immediately, requiring the person tocease and desist from any such violation or practice and takeaffirmative action to prevent such insolvency, dissipation,condition or prejudice pending completion of such proceedings.Such temporary cease and desist order shall remain effective andenforceable pending the completion of the administrativeproceedings pursuant to such order and until such time as thedirector shall dismiss the charges specified in such order, or ifa permanent cease and desist order is issued against the person,until the effective date of such order. The person may, withinfifteen days after having been served with a temporary cease anddesist order, apply to the circuit court of Cole County, or thecircuit court of the county in which the principal office of suchcredit union is located, for an order setting aside, limiting, orsuspending the enforcement, operation, or effectiveness of suchcease and desist order.
4. Any person willfully violating any provision of any ceaseand desist order of the director of the division of credit unionsafter it becomes final, while the same is in force, shall pay acivil penalty of not more than one hundred dollars per day foreach day such violation shall continue.
5. The term "person" as used in this section shall includeeither the singular or plural of any individual, credit union,partnership, corporation, association or trust, or any otherlegal entity.
(RSMo 1939 § 5526, A.L. 1945 p. 689, A.L. 1945 p. 720, A. 1949 H.B. 2091, A.L. 1967 p. 509, A.L. 1985 H.B. 469)
Director, cease and desistorders--grounds--hearing--procedure--review, temporary orders.
370.140. 1. (1) The director may issue cease and desistorders whenever it appears to him, upon competent and substantialevidence from any report or examination, that any person:
(a) Is engaging or has engaged in an unsafe or unsoundpractice in conducting the business of a credit union;
(b) Is violating or has violated a material provision of anylaw, rule, regulation, or any condition imposed in writing by thedirector or any written agreement made with the director;
(c) Is about to do the acts prohibited in paragraph (a) or(b) of this subdivision if, in his opinion, the threat whichexists is based upon reasonable cause.
(2) Before any cease and desist order shall be issued, acopy of the proposed order, a list of the reasons for such order,and a list of the specific violations relied upon with suchdetails that the credit union may readily respond, together withan order to show cause why such cease and desist order should notbe issued, shall be served, either personally or by certifiedmail, on the chairman of the board/president, the supervisorycommittee, the president/manager of the credit union or any otherconcerned person.
2. (1) Upon issuing any order to show cause, the directorshall notify the person named therein that the person is entitledto a public hearing before the director if a request for ahearing is made in writing to the director within fifteen daysfrom the date of the service of the order to show cause why thecease and desist order should not be issued.
(2) The cease and desist order shall be issued fifteen daysafter the service of the order to show cause if no request for apublic hearing is made as above provided.
(3) Upon receipt of a request for a hearing, the directorshall set a time and place for the hearing which shall not beless than ten days or more than thirty days from the receipt ofthe request, or as otherwise agreed upon by the parties. Noticeof the time and place shall be given by the director not lessthan seven days before the hearing.
(4) At the hearing the person may be represented by counseland shall be entitled to be advised, at such hearing or no laterthan seventy-two hours prior to the hearing upon written requestto the director, of the nature and source of any adverse evidenceprocured by the director, and shall be given the opportunity tosubmit any relevant written or oral evidence in his behalf toshow cause why the cease and desist order should not be issued.No order shall be later overturned due to a failure to give priornotice of any information used at the hearing so long as thedirector acted in good faith in providing the information.
(5) At the hearing the director or any of his duly appointedagents may compel the attendance before him, and the director mayexamine, under oath, the directors, officers, employees, agents,or any other person in reference to the condition, affairs,management of the business, or any matters relating to the creditunion. He may administer oaths or affirmations, and he shallhave power to issue subpoenas to compel the attendance ofwitnesses, and to issue subpoenas duces tecum to require andcompel the production of records, books, papers, contracts, orother documents if necessary. Moreover, he shall, upon requestof respondents, issue such subpoenas and subpoenas duces tecum onbehalf of the respondent.
(6) At the conclusion of the hearing, or within fifteen daysthereafter, the director shall issue the cease and desist orderas proposed or as subsequently modified or shall notify theperson that no order shall be issued. Such cease and desistorder shall be served on the person either personally or bycertified mail as set out in subdivision (2) of subsection 1 ofthis section. Further, upon issuing such cease and desist order,the director, at his discretion, may supplement such order with awritten statement advising the person that, conditioned uponsuitable actions having been taken to correct the violations orpractices set out in the order and upon competent and substantialevidence of such corrective actions having been submitted to thedirector for his approval, he may rescind the cease and desistorder.
(7) The circuit court of Cole County, or the circuit courtof the county in which the principal office of such person islocated, shall have jurisdiction to review any cease and desistorder of the director under provisions of sections 536.100 to536.150, RSMo; and if any person against whom an order is issuedfails to request judicial review, or if, after judicial review,the director's cease and desist order is upheld, the order shallbecome final.
(8) The commencement of proceedings under subdivision (7) ofthis section does not, unless specifically ordered by the court,operate as a stay of the director's order.
(9) Every hearing in an administrative proceeding shall bepublic, unless the director in his discretion grants a request,joined in by all the respondents, that the hearing be conductedprivately.
3. Whenever it shall appear to the director that theviolation or threatened violation or the unsafe or unsoundpractice or practices specified in the cease and desist orderserved upon the person participating in the conduct of theaffairs of such credit union pursuant to subsection 1 of thissection, or that the continuation of such violation or practiceis likely to cause insolvency or substantial dissipation of theassets or earnings of the credit union or is likely to seriouslyweaken the condition of the credit union or otherwise seriouslyprejudice the interests of its members and its shareholders,prior to the completion of the proceedings conducted pursuant tosaid subsection, the director may issue a temporary cease anddesist order, effective immediately, requiring the person tocease and desist from any such violation or practice and takeaffirmative action to prevent such insolvency, dissipation,condition or prejudice pending completion of such proceedings.Such temporary cease and desist order shall remain effective andenforceable pending the completion of the administrativeproceedings pursuant to such order and until such time as thedirector shall dismiss the charges specified in such order, or ifa permanent cease and desist order is issued against the person,until the effective date of such order. The person may, withinfifteen days after having been served with a temporary cease anddesist order, apply to the circuit court of Cole County, or thecircuit court of the county in which the principal office of suchcredit union is located, for an order setting aside, limiting, orsuspending the enforcement, operation, or effectiveness of suchcease and desist order.
4. Any person willfully violating any provision of any ceaseand desist order of the director of the division of credit unionsafter it becomes final, while the same is in force, shall pay acivil penalty of not more than one hundred dollars per day foreach day such violation shall continue.
5. The term "person" as used in this section shall includeeither the singular or plural of any individual, credit union,partnership, corporation, association or trust, or any otherlegal entity.
(RSMo 1939 § 5526, A.L. 1945 p. 689, A.L. 1945 p. 720, A. 1949 H.B. 2091, A.L. 1967 p. 509, A.L. 1985 H.B. 469)
Director, cease and desistorders--grounds--hearing--procedure--review, temporary orders.
370.140. 1. (1) The director may issue cease and desistorders whenever it appears to him, upon competent and substantialevidence from any report or examination, that any person:
(a) Is engaging or has engaged in an unsafe or unsoundpractice in conducting the business of a credit union;
(b) Is violating or has violated a material provision of anylaw, rule, regulation, or any condition imposed in writing by thedirector or any written agreement made with the director;
(c) Is about to do the acts prohibited in paragraph (a) or(b) of this subdivision if, in his opinion, the threat whichexists is based upon reasonable cause.
(2) Before any cease and desist order shall be issued, acopy of the proposed order, a list of the reasons for such order,and a list of the specific violations relied upon with suchdetails that the credit union may readily respond, together withan order to show cause why such cease and desist order should notbe issued, shall be served, either personally or by certifiedmail, on the chairman of the board/president, the supervisorycommittee, the president/manager of the credit union or any otherconcerned person.
2. (1) Upon issuing any order to show cause, the directorshall notify the person named therein that the person is entitledto a public hearing before the director if a request for ahearing is made in writing to the director within fifteen daysfrom the date of the service of the order to show cause why thecease and desist order should not be issued.
(2) The cease and desist order shall be issued fifteen daysafter the service of the order to show cause if no request for apublic hearing is made as above provided.
(3) Upon receipt of a request for a hearing, the directorshall set a time and place for the hearing which shall not beless than ten days or more than thirty days from the receipt ofthe request, or as otherwise agreed upon by the parties. Noticeof the time and place shall be given by the director not lessthan seven days before the hearing.
(4) At the hearing the person may be represented by counseland shall be entitled to be advised, at such hearing or no laterthan seventy-two hours prior to the hearing upon written requestto the director, of the nature and source of any adverse evidenceprocured by the director, and shall be given the opportunity tosubmit any relevant written or oral evidence in his behalf toshow cause why the cease and desist order should not be issued.No order shall be later overturned due to a failure to give priornotice of any information used at the hearing so long as thedirector acted in good faith in providing the information.
(5) At the hearing the director or any of his duly appointedagents may compel the attendance before him, and the director mayexamine, under oath, the directors, officers, employees, agents,or any other person in reference to the condition, affairs,management of the business, or any matters relating to the creditunion. He may administer oaths or affirmations, and he shallhave power to issue subpoenas to compel the attendance ofwitnesses, and to issue subpoenas duces tecum to require andcompel the production of records, books, papers, contracts, orother documents if necessary. Moreover, he shall, upon requestof respondents, issue such subpoenas and subpoenas duces tecum onbehalf of the respondent.
(6) At the conclusion of the hearing, or within fifteen daysthereafter, the director shall issue the cease and desist orderas proposed or as subsequently modified or shall notify theperson that no order shall be issued. Such cease and desistorder shall be served on the person either personally or bycertified mail as set out in subdivision (2) of subsection 1 ofthis section. Further, upon issuing such cease and desist order,the director, at his discretion, may supplement such order with awritten statement advising the person that, conditioned uponsuitable actions having been taken to correct the violations orpractices set out in the order and upon competent and substantialevidence of such corrective actions having been submitted to thedirector for his approval, he may rescind the cease and desistorder.
(7) The circuit court of Cole County, or the circuit courtof the county in which the principal office of such person islocated, shall have jurisdiction to review any cease and desistorder of the director under provisions of sections 536.100 to536.150, RSMo; and if any person against whom an order is issuedfails to request judicial review, or if, after judicial review,the director's cease and desist order is upheld, the order shallbecome final.
(8) The commencement of proceedings under subdivision (7) ofthis section does not, unless specifically ordered by the court,operate as a stay of the director's order.
(9) Every hearing in an administrative proceeding shall bepublic, unless the director in his discretion grants a request,joined in by all the respondents, that the hearing be conductedprivately.
3. Whenever it shall appear to the director that theviolation or threatened violation or the unsafe or unsoundpractice or practices specified in the cease and desist orderserved upon the person participating in the conduct of theaffairs of such credit union pursuant to subsection 1 of thissection, or that the continuation of such violation or practiceis likely to cause insolvency or substantial dissipation of theassets or earnings of the credit union or is likely to seriouslyweaken the condition of the credit union or otherwise seriouslyprejudice the interests of its members and its shareholders,prior to the completion of the proceedings conducted pursuant tosaid subsection, the director may issue a temporary cease anddesist order, effective immediately, requiring the person tocease and desist from any such violation or practice and takeaffirmative action to prevent such insolvency, dissipation,condition or prejudice pending completion of such proceedings.Such temporary cease and desist order shall remain effective andenforceable pending the completion of the administrativeproceedings pursuant to such order and until such time as thedirector shall dismiss the charges specified in such order, or ifa permanent cease and desist order is issued against the person,until the effective date of such order. The person may, withinfifteen days after having been served with a temporary cease anddesist order, apply to the circuit court of Cole County, or thecircuit court of the county in which the principal office of suchcredit union is located, for an order setting aside, limiting, orsuspending the enforcement, operation, or effectiveness of suchcease and desist order.
4. Any person willfully violating any provision of any ceaseand desist order of the director of the division of credit unionsafter it becomes final, while the same is in force, shall pay acivil penalty of not more than one hundred dollars per day foreach day such violation shall continue.
5. The term "person" as used in this section shall includeeither the singular or plural of any individual, credit union,partnership, corporation, association or trust, or any otherlegal entity.
(RSMo 1939 § 5526, A.L. 1945 p. 689, A.L. 1945 p. 720, A. 1949 H.B. 2091, A.L. 1967 p. 509, A.L. 1985 H.B. 469)
