HUD 24 CFR PART 26-2011 HEARING PROCEDURES《听证程序》.pdf

1、249 Office of the Secretary, HUD Pt. 26 (c) Notification of other agencies. Whenever the Board has taken any dis-cretionary action to suspend and/or withdraw the approval of a mortgagee, the Secretary shall provide prompt no-tice of the action and a statement of the reasons for the action to the Sec

2、-retary of Veterans Affairs; the chief ex-ecutive officer of the Federal National Mortgage Association; the chief execu-tive officer of the Federal Home Loan Mortgage Corporation; the Adminis-trator of the Rural Housing Service (formerly the Farmers Home Adminis-tration); the Comptroller of the Cur-

3、rency, if the mortgagee is a National Bank or District Bank or subsidiary or affiliate of such a bank; the Board of Governors of the Federal Reserve Sys-tem, if the mortgagee is a state bank that is a member of the Federal Re-serve System or a subsidiary or affil-iate of such a bank, or a bank holdi

4、ng company or a subsidiary or affiliate of such a company; the Board of Directors of the Federal Deposit Insurance Cor-poration, if the mortgagee is a state bank that is not a member of the Fed-eral Reserve System, or is a subsidiary or affiliate of such a bank; and the Di-rector of the Office of Th

5、rift Super-vision, if the mortgagee is a federal or state savings association or a sub-sidiary or affiliate of a savings associa-tion. (d) Notification to GNMA of withdrawal actions. Whenever the Board issues a notice of violation that could lead to withdrawal of a mortgagees approval, or is notifie

6、d by GNMA of an action that could lead to withdrawal of GNMA approval, the Board shall proceed in ac-cordance with 12 U.S.C. 1708(d). 73 FR 60542, Oct. 10, 2008 25.13 Notifying GNMA of withdrawal actions. When the Board issues a notice of violation that could lead to withdrawal of a mortgagees appro

7、val, or is noti-fied by GNMA of an action that could lead to withdrawal of GNMA approval, the Board shall proceed in accordance with 12 U.S.C. 1708(d). (Approved by the Office of Management and Budget under Control Number 25020450) 61 FR 685, Jan. 9, 1996 25.15 Retroactive application of Board regul

8、ations. Limitations on participation in HUD mortgage insurance programs proposed or imposed prior to August 12, 1992, under an ancillary procedure shall not be affected by this part. This part shall apply to sanctions initiated after the effective date of the Department of Housing and Urban Developm

9、ent Re-form Act of 1989 (December 15, 1989) re-gardless of the date of the cause giving rise to the sanction. 57 FR 31051, July 13, 1992. Redesignated at 61 FR 685, Jan. 9, 1996 25.17 Reserved PART 26HEARING PROCEDURES Subpart AHearings Before Hearing Officers Sec. 26.1 Purpose and scope. HEARING OF

10、FICER 26.2 Hearing officer, powers, and duties. 26.3 Ex parte communications. 26.4 Sanctions. 26.5 Disqualification of hearing officer. REPRESENTATION OF THE PARTIES 26.6 Department representative. 26.7 Respondents representative. 26.8 Standards of practice. PLEADINGS AND MOTIONS 26.9 Form and filin

11、g requirements. 26.10 Service. 26.11 Time computation. 26.12 Notice of administrative action. 26.13 Complaint. 26.14 Answer. 26.15 Amendments and supplemental plead-ings. 26.16 Motions. DISCOVERY 26.17 Prehearing conference. 26.18 Discovery. 26.19 Request for production of documents. 26.20 Depositio

12、ns. 26.21 Written interrogatories. 26.22 Requests for admissions. HEARINGS 26.23 Public nature and timing of hearings; transcripts. 26.24 Rules of evidence. 26.25 Hearing officers determination and order. VerDate Mar2010 08:31 Apr 29, 2011 Jkt 223077 PO 00000 Frm 00259 Fmt 8010 Sfmt 8010 Y:SGML22307

13、7.XXX 223077jdjones on DSK8KYBLC1PROD with CFRProvided by IHSNot for ResaleNo reproduction or networking permitted without license from IHS-,-,-250 24 CFR Subtitle A (4111 Edition) 26.1 SECRETARIAL REVIEW 26.26 Review of determination of hearing of-ficers. 26.27 Interlocutory rulings. Subpart BHeari

14、ngs Pursuant to the Administrative Procedure Act 26.28 Purpose and scope. 26.29 Definitions. 26.30 Service and filing. 26.31 Time computations. ADMINISTRATIVE LAW JUDGE 26.32 Powers and duties of the Administra-tive Law Judge (ALJ). 26.33 Ex parte communications. 26.34 Sanctions. 26.35 Disqualificat

15、ion of ALJ. PARTIES 26.36 Parties to the hearing. 26.37 Separation of functions. PREHEARING PROCEDURES 26.38 Commencement of action. 26.39 Prehearing conferences. 26.40 Motions. 26.41 Default. DISCOVERY 26.42 Discovery. 26.43 Subpoenas. 26.44 Protective orders. HEARINGS 26.45 General. 26.46 Witnesse

16、s. 26.47 Evidence. 26.48 Posthearing briefs. 26.49 The record. 26.50 Initial decision. 26.51 Interlocutory rulings. 26.52 Appeal to the Secretary. 26.53 Exhaustion of administrative rem-edies. 26.54 Judicial review. 26.55 Collection of civil penalties and as-sessments. 26.56 Right to administrative

17、offset. AUTHORITY: 42 U.S.C. 3535(d). SOURCE: 73 FR 76833, Dec. 17, 2008, unless otherwise noted. Subpart AHearings Before Hearing Officers 26.1 Purpose and scope. This part sets forth rules of proce-dure in certain proceedings of the De-partment of Housing and Urban Devel-opment presided over by a

18、hearing offi-cer. These rules of procedure apply to administrative sanction hearings pur-suant to 2 CFR part 2424 and to hear-ings with respect to determinations by the Multifamily Participation Review Committee pursuant to 24 CFR part 200, subpart H, to the extent that these regulations are not inc

19、onsistent and unless these regulations provide other-wise. They also apply in any other case where a hearing is required by statute or regulation, to the extent that rules adopted under such statute or regula-tion are not inconsistent. HEARING OFFICER 26.2 Hearing officer, powers, and du-ties. (a) H

20、earing officer. Proceedings con-ducted under these rules shall be pre-sided over by a hearing officer who shall be an Administrative Law Judge or Office of Appeals Administrative Judge authorized by the Secretary or designee to conduct proceedings under this part. (b) Time and place of hearing.The h

21、earing officer shall set the time and place of any hearing and shall give rea-sonable notice to the parties. (c) Powers of hearing officers.The hear-ing officer shall conduct a fair and im-partial hearing and take all action nec-essary to avoid delay in the disposition of proceedings and to maintain

22、 order. The hearing officer shall have all pow-ers necessary to those ends, including, but not limited to, the power: (1) To administer oaths and affirma-tions; (2) To cause subpoenas to be issued as authorized by law; (3) To rule upon offers of proof and receive evidence; (4) To order or limit disc

23、overy as the interests of justice may require; (5) To regulate the course of the hearing and the conduct of the parties and their counsel; (6) To hold conferences for the settle-ment or simplification of the issues by consent of the parties; (7) To consider and rule upon all pro-cedural and other mo

24、tions appropriate in adjudicative proceedings; (8) To take notice of any material fact not appearing in evidence in the record that is properly a matter of ju-dicial notice; VerDate Mar2010 08:31 Apr 29, 2011 Jkt 223077 PO 00000 Frm 00260 Fmt 8010 Sfmt 8010 Y:SGML223077.XXX 223077jdjones on DSK8KYBL

25、C1PROD with CFRProvided by IHSNot for ResaleNo reproduction or networking permitted without license from IHS-,-,-251 Office of the Secretary, HUD 26.5 (9) To make and file determinations; and (10) To exercise such other authority as is necessary to carry out the respon-sibilities of the hearing offi

26、cer under subpart A of this part. 26.3 Ex parte communications. (a) Definition. An ex parte commu-nication is any communication with a hearing officer, direct or indirect, oral or written, concerning the merits or procedures of any pending proceeding that is made by a party in the absence of any oth

27、er party. (b) Prohibition of ex parte communica-tions.Ex parte communications are pro-hibited except where: (1) The purpose and content of the communication have been disclosed in advance or simultaneously to all par-ties; or (2) The communication is a request for information concerning the status o

28、f the case. (c) Procedure after receipt of ex parte communication.Any hearing officer who receives an ex parte communication that the hearing officer knows or has reason to believe is unauthorized shall promptly place the communication, or its substance, in all files and shall fur-nish copies to all

29、 parties. Unauthorized ex parte communications shall not be taken into consideration in deciding any matter in issue. 26.4 Sanctions. (a) The hearing officer may sanction a person, including any party or rep-resentative, for failing to comply with an order, rule, or procedure governing the proceedin

30、g; failing to prosecute or defend an action; or engaging in other misconduct that interferes with the speedy, orderly, or fair conduct of the hearing. (b) Any sanction, including, but not limited to, those listed in paragraphs (c), (d), and (e) of this section, shall reasonably relate to the severit

31、y and nature of the failure or misconduct. (c) If a party refuses or fails to com-ply with an order of the hearing officer, including an order compelling dis-covery, the hearing officer may enter any appropriate order necessary to the disposition of the hearing including a determination against the

32、noncom-plying party, including but not limited to, the following: (1) Draw an inference in favor of the requesting party with regard to the in-formation sought; (2) In the case of requests for admis-sion, regard each matter about which an admission is requested to be admit-ted; (3) Prohibit the part

33、y failing to com-ply with the order from introducing evidence concerning, or otherwise rely-ing upon, testimony relating to the in-formation sought; or (4) Strike any part of the pleadings or other submissions of the party fail-ing to comply with the order. (d) If a party fails to prosecute or de-fe

34、nd an action brought under subpart A of this part, the hearing officer may dismiss the action or may issue an ini-tial decision against the non-pros-ecuting or defending party. (e) The hearing officer may refuse to consider any motion, request, response, brief, or other document that is not filed in

35、 a timely fashion. 26.5 Disqualification of hearing offi-cer. (a) When a hearing officer believes there is a basis for disqualification in a particular proceeding, the hearing offi-cer shall withdraw by notice on the record and shall notify the Secretary and the official initiating the action under

36、appeal. (b) Whenever any party believes that the hearing officer should be disquali-fied from presiding in a particular pro-ceeding, the party may file a motion with the hearing officer requesting the hearing officer to withdraw from pre-siding over the proceedings. This mo-tion shall be supported b

37、y affidavits setting forth the alleged grounds for disqualification. (c) Upon the filing of a motion and affidavit, the hearing officer shall pro-ceed no further in the case until the matter of disqualification is resolved. (d) If the hearing officer does not withdraw, a written statement of his or

38、her reasons shall be incorporated in the record and the hearing shall proceed, unless the decision is appealed in ac-cordance with the procedures set forth in 26.27. VerDate Mar2010 08:31 Apr 29, 2011 Jkt 223077 PO 00000 Frm 00261 Fmt 8010 Sfmt 8010 Y:SGML223077.XXX 223077jdjones on DSK8KYBLC1PROD w

39、ith CFRProvided by IHSNot for ResaleNo reproduction or networking permitted without license from IHS-,-,-252 24 CFR Subtitle A (4111 Edition) 26.6 REPRESENTATION OF THE PARTIES 26.6 Department representative. In each case heard before a hearing officer under this part, the Department shall be repres

40、ented by attorneys from the Office of General Counsel. 26.7 Respondents representative. The party against whom the adminis-trative action is taken may be rep-resented at hearing, as follows: (a) Individuals may appear on their own behalf; (b) A member of a partnership or joint venture may appear on

41、behalf of the partnership or joint venture; (c) A bona fide officer may appear on behalf of a corporation or association upon a showing of adequate authoriza-tion; (d) An attorney who files a notice of appearance with the hearing officer may represent any party. For purposes of this paragraph, an at

42、torney is de-fined as a member of the bar of a fed-eral court or of the highest court of any state or territory of the United States; or (e) An individual not included within paragraphs (a) through (d) of this sec-tion may represent the respondent upon an adequate showing, as deter-mined by the hear

43、ing officer, that the individual possesses the legal, tech-nical, or other qualifications necessary to advise and assist in the presentation of the case. 26.8 Standards of practice. Attorneys shall conform to the standards of professional and ethical conduct required of practitioners in the courts o

44、f the United States and by the bars of which the attorneys are mem-bers. Any attorney may be prohibited by the hearing officer from rep-resenting a party if the attorney is not qualified under 26.7 or if such action is necessary to maintain order in or the integrity of the pending proceeding. PLEADI

45、NGS AND MOTIONS 26.9 Form and filing requirements. (a) Filing.Unless otherwise provided by statute, rule, or regulation: (1) Requests for hearings shall be filed with the Office of General Coun-sels Docket Clerk, Department of Housing and Urban Development, 451 7th Street, SW., Washington, DC 20410.

46、 The OGC Docket Clerk shall assign the docket number and forward the case to HUDs Office of Appeals. (2) All other pleadings, submissions, and documents should be filed directly with the appropriate hearing officer. (3) Filing may be made by first class mail, delivery, facsimile transmission, or ele

47、ctronic means; however, the hear-ing officer may place reasonable limits on filing by facsimile or electronic means. Duplicate copies are not re-quired unless so ordered by the hearing officer. A document is considered time-ly filed if postmarked on or before the date due or delivered to the appro-p

48、riate person by the date due. (b) Title. Documents shall show clear-ly the title of the action and the dock-et number assigned by the Docket Clerk. (c) Form. To the fullest extent pos-sible, all documents shall be printed or typewritten in clear, legible form. 26.10 Service. (a) Method of Service.On

49、e copy of all pleadings, motions, and other docu-ments required or permitted under these rules shall be served upon all par-ties by the person filing them and shall be accompanied by a certificate of service stating how and when such service has been made. Whenever these rules require or permit service to be made upon a party represented by an attorney, the service shall be made upon the attorney, unless service upon the party is ordered by the