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California Code, Code of Civil Procedure - CCP § 338

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(a) Whenever it appears to the department that a person is engaging, has engaged, or is about to engage in an unsafe or unsound practice in conducting the business of a financial institution, or is violating, has violated, or is about to violate a provision of this title or a regulation adopted or order issued under this title, the department may

(1) issue and serve on the person a notice of intent to issue an order directing the person to cease and desist from continuing the act or practice, or imposing a penalty under AS 06.01.035(e) - (g);  or

(2) bring an action in the superior court to enjoin the act or practice.

(b) A notice issued under (a)(1) of this section must contain a statement of the facts constituting the alleged violation or the unsafe or unsound practice, and must give reasonable notice of and an opportunity for a hearing to determine whether an order to cease and desist the act or practice should be issued.  If a hearing is not requested within 30 days, or if the person served or the person's representative fails to appear at the hearing, the person is considered to have consented to the issuance of the order, and the department may issue the order to cease and desist.  If the department finds at the hearing that a violation or an unsafe or unsound practice has been established, the department may issue the order to cease and desist.

(c) A cease and desist order issued under (b) of this section may impose a penalty under AS 06.01.035(e) - (g) and may require the person to cease and desist from the act or practice and to take affirmative action to correct the conditions resulting from the act or practice.

(d) Notwithstanding the other provisions of this section, the department may issue a temporary cease and desist order at the same time that the department issues a notice under (a)(1) of this section.  The department may not issue a temporary cease and desist order under this subsection without a prior hearing unless the order is issued for the sole purpose of preserving the status quo and preventing damage to a financial institution pending completion of any hearing.  A temporary cease and desist order issued under this subsection remains in effect until a final order is issued under (b) of this section or until otherwise terminated by the department, except that the order may not remain in effect for more than 60 days.

(e) Except for notices issued under (a)(1) of this section, the department shall give public notice of each proposed action, but the department is not required to hold a hearing before taking the action unless it receives written opposition to the proposed action.  Written opposition must be filed with the department within the time specified by the department.  In cases involving extraordinary circumstances requiring immediate action, the department may take action without notice and public hearing, but upon application to rescind the action taken, the department shall promptly hold a hearing on the application.

(f) Hearings required or authorized under this title are not subject to AS 44.62.330--44.62.630, except as required by AS 44.62.560 and 44.62.570.  The department shall adopt regulations, consistent with the provisions of this title, establishing procedures for hearings held under this section.  Administrative hearings on contested cases shall be conducted by the office of administrative hearings (AS 44.64.010).

(g) For the purpose of hearings, investigations, or other proceedings under this title, and except as otherwise provided in this title, the department or an officer designated by the commissioner may administer oaths and affirmations, subpoena witnesses, compel the attendance of witnesses, take evidence, and require the production of books, papers, correspondence, memoranda, agreements, or other documents or records that the department considers relevant or material to the inquiry.

(h) In this section, “unsafe or unsound practice” means

(1) operating a bank while it is in an unsafe or unsound condition;

(2) doing an act that violates a law or order of the department, or the bank's articles or bylaws;  or

(3) doing an act reasonably likely to result in a bank's condition becoming unsafe or unsound.

Cite this article: FindLaw.com - California Code, Code of Civil Procedure - CCP § 338 - last updated January 01, 2019 | https://codes.findlaw.com/ca/code-of-civil-procedure/ccp-sect-338.html


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