DAR File No. 38452

Housing Corporation (Utah), Administration

Rule R460-6

Adjudicative Proceedings

Notice of Proposed Rule

(Amendment)

DAR File No.: 38452
Filed: 04/23/2014 04:37:56 PM

RULE ANALYSIS

Purpose of the rule or reason for the change:

The purpose for the amendment is to clarify the procedures for an informal adjudicative proceeding, as well as to establish procedures and qualifications for a formal adjudicative proceeding.

Summary of the rule or change:

Section R460-6-1 changes include: 1) add option for the president of Utah Housing Corporation (UHC) to elect whether an adjudicative proceeding will be formal or informal; 2) add language detailing what must be contained in a written request for adjudicative proceeding and to whom such request should be provided; 3) allow for a single adjudicative proceeding to be conducted for similar requests; and 4) add a restriction on submission of additional pleadings and amendments after certain steps. Section R460-6-2 changes include an inclusion of additional information in the notice of adjudicative proceeding regarding whether the proceeding is formal or non-formal and establishes dates whereby such notices shall be sent. Section R460-6-3 changes: 1) provide for the presiding officer to hold a hearing or to determine whether or not a hearing will be held; and 2) clarify that access to certain of UHC's information is subject to any disclosure exemption afforded under the Governmental Records Access and Management Act. Section R460-6-4 was added in its entirety to detail the procedures for a formal adjudicative proceeding including: 1) when notices shall be filed; 2) dates by when the formal proceeding shall be held; 3) specific actions to be taken during the proceeding; 4) how interventions will be handled; and 5) that all formal adjudicative proceedings will be audio recorded. Section R460-6-5 adds language providing for a reconsideration request of a determination made by the presiding officer and the procedure for submitting such a request.

State statutory or constitutional authorization for this rule:

• Subsection 35A-8-711(5)
• Sections 63G-4-202 through 63G-4-209

Anticipated cost or savings to:

the state budget:

None--Subsection 35A-8-702(3)(b) states that UHC is a "financially independent body" and therefore, receives no state appropriation. Furthermore, the changes made to this rule simply create the ability for the determination of an adjudicative proceeding to be formal or informal and clarifies the steps to be taken in that process. UHC has reviewed the changes in light of any anticipated increase in costs or savings and do not find any increases beyond the scope of the existing rule.

local governments:

None--Subsection 35A-8-702(3)(b) states that UHC is a "financially independent body" and is not reliant on any appropriations from a local government to fund its efforts. Furthermore, the changes made to this rule simply create the ability for the determination of an adjudicative proceeding to be formal or informal and clarifies the steps to be taken in that process. UHC has reviewed the changes in light of any anticipated increase in costs or savings and do not find any increases beyond the scope of the existing rule.

small businesses:

None--The changes made to this rule simply create the ability for the determination of an adjudicative proceeding to be formal or informal and clarifies the steps to be taken in that process. UHC has reviewed the changes in light of any anticipated increase in costs or savings and do not find any increases beyond the scope of the existing rule for small businesses.

persons other than small businesses, businesses, or local governmental entities:

None--The changes made to this rule simply create the ability for the determination of an adjudicative proceeding to be formal or informal and clarifies the steps to be taken in that process. UHC has reviewed the changes in light of any anticipated increase in costs or savings and do not find any increases beyond the scope of the existing rule for any other person or entity.

Compliance costs for affected persons:

None--The changes made to this rule simply create the ability for the determination of an adjudicative proceeding to be formal or informal and clarifies the steps to be taken in that process. Compliance to the rule with these amendments requires nothing more than the original rule, i.e., reading the rule and following the process laid out therein.

Comments by the department head on the fiscal impact the rule may have on businesses:

There is no demonstrable savings or expenditures on business from this rule. However, the additional clarity provided, as well as the opportunity for a formal adjudicative proceeding will enable UHC and its stakeholders to more easily articulate the defined terms as laid out in this rule.

Grant S. Whitaker, President and CEO

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Housing Corporation (Utah)
Administration
2479 LAKE PARK BLVD
WEST VALLEY CITY, UT 84120

Direct questions regarding this rule to:

• Jonathan Hanks at the above address, by phone at 801-902-8221, by FAX at 801-902-8321, or by Internet E-mail at jhanks@uthc.org

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

06/16/2014

This rule may become effective on:

06/23/2014

Authorized by:

Grant Whitaker, President and CEO

R460. Housing Corporation, Administration.

R460-6. Adjudicative Proceedings.

R460-6-1. Nature of Proceeding.

(1) An[y proceeding to terminate the eligibility of a mortgage lender, servicer, or participant as contemplated in R460-5, or any other] adjudicative proceeding conducted by UHC, shall generally be conducted as an informal adjudicative proceeding, as provided for in Section 63G-4-203; however at the election of the president of UHC, the proceeding may be conducted as a formal adjudicative proceeding, as provided for in Sections 63G-4-204 through 63G-4-209. The president of UHC will appoint the presiding officer of an adjudicative proceeding who may be the chair[man], vice chair[man], acting chair[man] or president of UHC pursuant to Section [9-4-904]35A-8-704 and [9-4-905]35A-8-706.

(2) All requests for formal or informal adjudication proceedings shall be made in writing and signed by the person invoking the jurisdiction of UHC (the "affected party"), or by that person's representative, shall only be addressed to the president, shall be delivered to the offices of UHC, and shall include:

(a) the names and addresses of all persons to whom a copy of the request for UHC action is being sent;

(b) UHC's file number or other reference number, if known;

(c) the date that the request for UHC action was mailed;

(d) a statement of the legal authority and jurisdiction under which UHC action is requested;

(e) a statement of the relief or action sought from UHC; and

(f) a statement of the facts and reasons forming the basis for relief or UHC action.

(3) If the affected party knows of other persons who have a direct interest in the UHC action requested, then the affected party shall mail a copy of his or her request to each such person.

(4) The presiding officer may conduct a single adjudicative proceeding for similar requests for UHC action.

(5) The presiding officer may restrict the submission of additional pleadings and amendment of pleadings after a response has been made by UHC to a request for UHC action.

 

R460-6-2. Notice of Adjudicative Proceeding.

[Not less than twenty days prior to any proposed agency action,]Whether an adjudicative proceeding is commenced by UHC or requested by an affected party, UHC shall file and serve notice of the adjudicative proceeding upon the affected [party]parties, which notice shall be in writing, shall be mailed postage paid by first-class mail, shall designate the presiding officer, shall be signed by the president of UHC, shall include a statement of whether the adjudicative proceeding is to be conducted informally or formally and otherwise shall be prepared in accordance with the requirements of Section 63G-4-201.  For informal adjudication, such notice shall be sent not less than 20 calendar days prior to the proceeding. For formal adjudication, such notice shall be sent not less than 60 calendar days prior to the proceeding (subject to any extensions pursuant to R460-6-4) and shall comply with the requirements set forth in R460-6-4(1) and R460-6-4(2), as applicable.

 

R460-6-3. Procedures for Informal Adjudicative Proceeding.

(1) No answer or pleading responsive to the notice of adjudicative proceeding need be filed by the affected party.

(2) No hearing shall be held unless the affected party requests a hearing in writing or the presiding officer elects to hold a hearing. The written request for a hearing must be received by UHC no more than [ten]10 calendar days after the service of the notice of adjudicative proceeding.

(3) If a hearing is requested by the affected party, the presiding officer shall elect whether to conduct a hearing given the nature of the dispute. If the presiding officer does elect to conduct a hearing, it will be held no sooner than [ten]10 calendar days after notice of the hearing is mailed to the affected party. The affected party shall be permitted to testify, present evidence, and comment on UHC's[the] proposed [agency]action. Prior to the hearing, the affected party may have access to information contained in UHC's files and to [all ]materials and information gathered by UHC in [any]its investigation relevant to the adjudicative proceeding, but discovery is prohibited.  Access to such information, files and materials is subject to any disclosure exemption afforded under UHC's Governmental Records Access and Management Act (GRAMA) rules. [UHC]The presiding officer may issue subpoenas or other [discovery ]orders to compel production of necessary evidence.

(4) Intervention is prohibited.

[(5) All informal adjudicative proceedings shall be open to all parties.

]

R460-6-4. Procedures for Formal Adjudicative Proceeding.

(1) If UHC denies an affected party's request for a formal adjudicative proceeding, UHC shall send notice to the affected party of the denial stating the proceeding will not be a formal adjudicative proceeding, and stating whether the request for a formal proceeding is denied or whether the proceeding will be held as an informal proceeding, and stating that the affected party may request a hearing before UHC to challenge the denial.

(2) If UHC's proceeding is to be conducted as a formal proceeding, UHC shall send notice to all known interested parties stating that a written response must be filed with UHC by the affected party within 30 calendar days of when the notice was mailed.

(3) The presiding officer may elect to hold a pre-hearing conference with all affected parties or their representatives to review the issues of the dispute and the procedure to be followed.

(4) A hearing shall be held no more than 60 calendar days after the service of the notice of formal adjudicative proceeding. However, in unusual circumstances, the presiding officer may elect to extend the date of the hearing for good cause.

(5) The affected parties shall be permitted to testify, present evidence, and comment on UHC's proposed action. In addition to access to the information available in connection with an informal adjudicative proceeding pursuant to R460-6-3(3), the presiding officer may permit additional discovery as is reasonable given the nature of the dispute. The presiding officer may issue subpoenas or other orders to compel production of necessary evidence.

(6) Intervention determinations will be made by and subject to conditions established by the presiding officer.

(7) UHC shall record the audio of all formal adjudicative proceedings. Any party, at its sole expense, can have such audio recordings transcribed.

 

R460-6-[4]5. Decision of UHC.

(1) Within [thirty]30 calendar days after any hearing requested by an affected party, or after the party's failure to request a hearing within the time prescribed under R460-6-3, UHC shall issue a signed order in writing stating UHC's decision and such other information as is required by Section 63G-4-203. An order of default may be issued by UHC if circumstances described in Section 63G-4-209(1) shall occur.

(2) Requests for reconsideration of determinations made by the presiding officer in an adjudicative proceeding shall be submitted in the same manner as a request for UHC action as specified in R460-6-1(2), and must be submitted within 20 calendar days of UHC's issuance of a determination or signed order.

(3) Requests for reconsiderations of determinations will be evaluated by the presiding officer who may be the chair, vice chair, acting chair or president of UHC pursuant to Section 35A-8-704 and 35A-8-706. The presiding officer will issue an order granting or denying such request within 20 calendar days of its receipt by the presiding officer. If the presiding officer does not issue an order within such 20 calendar day period, the request shall be considered to be denied.

(4) No separate hearings will be conducted, and no oral arguments will be heard in connection with a request for reconsideration, unless requested by the presiding officer.

 

KEY: housing finance

Date of Enactment or Last Substantive Amendment: [1990]2014

Notice of Continuation: September 28, 2012

Authorizing, and Implemented or Interpreted Law: 63G-4