12 U.S.C. § 1715z–4a | Double damages remedy for unauthorized…

(a)

Action to recover assets or income

(1)

12 U.S.C. 1707 section 1701q of this title section 1701q of this titleNovember 28, 19901

1 So in original.

section 1715z–22 of this title section 1715z–22 of this title The Secretary of Housing and Urban Development (referred to in this section as the “Secretary”) may request the Attorney General to bring an action in a United States district court to recover any assets or income used by any person in violation of (A) a regulatory agreement that applies to a multifamily project, nursing home, intermediate care facility, board and care home, assisted living facility, or hospital whose mortgage is or, at the time of the violations, was insured or held by the Secretary under title II of the National Housing Act [ et seq.]; (B) a regulatory agreement that applies to a multifamily project whose mortgage is or, at the time of the violations, was insured or held by the Secretary under (including property subject to as it existed before ); (C) a regulatory agreement or such other form of regulatory control as may be imposed by the Secretary that applies to mortgages insured or held or, at the time of the violations, was  insured or held by the Secretary under , but not reinsured under ; or (D) any applicable regulation. For purposes of this section, a use of assets or income in violation of the regulatory agreement, or such other form of regulatory control as may be imposed by the Secretary, or any applicable regulation shall include any use for which the documentation in the books and accounts does not establish that the use was made for a reasonable operating expense or necessary repair of the property and has not been maintained in accordance with the requirements of the Secretary and in reasonable condition for proper audit.

(2)

12 U.S.C. 1707 section 1701q of this title section 1701q of this titleNovember 28, 1990section 1715z–22 of this title For purposes of a mortgage insured or held by the Secretary under title II of the National Housing Act [ et seq.], under (including as it existed before ) and under , the term “any person” shall mean any person or entity that owns or operates a property, as identified in the regulatory agreement, including but not limited to—

(A)

any stockholder holding 25 percent or more interest of a corporation that owns that property;

(B)

any beneficial owner of the property under any business or trust;

(C)

any officer, director, or partner of an entity owning or controlling the property;

(D)

any nursing home lessee or operator;

(E)

any hospital lessee or operator;

(F)

any other person or entity that controls the property regardless of that person or entity’s official relationship to the property; and

(G)

any heir, assignee, successor in interest, or agent of any person or entity described in the preceding subparagraphs.

(b)

Initiation of proceedings and temporary relief

The Attorney General, upon request of the Secretary, shall have the exclusive authority to authorize the initiation of proceedings under this section. Pending final resolution of any action under this section, the court may grant appropriate temporary or preliminary relief, including restraining orders, injunctions, and acceptance of satisfactory performance bonds, to protect the interests of the Secretary and to prevent use of assets or income in violation of the regulatory agreement, or such other form of regulatory control as may be imposed by the Secretary, and any applicable regulation and to prevent loss of value of the realty and personalty involved.

(c)

Amount recoverable

12 U.S.C. 1701 section 1701q of this title section 1701q of this titleNovember 28, 1990In any judgment favorable to the United States entered under this section, the Attorney General may recover double the value of the assets and income of the property that the court determines to have been used in violation of the regulatory agreement, or such other form of regulatory control as may be imposed by the Secretary, or any applicable regulation, plus all costs relating to the action, including but not limited to reasonable attorney and auditing fees. Notwithstanding any other provision of law, the Secretary may apply the recovery, or any portion of the recovery, to the property or to the applicable insurance fund under the National Housing Act [ et seq.] or, in the case of any project for which the mortgage is held by the Secretary under (including property subject to as it existed before ), to the project or to the Department for use by the appropriate office within the Department for administrative costs related to enforcement of the requirements of the various programs administered by the Secretary, as appropriate.

(d)

Time limitation

Notwithstanding any other statute of limitations, the Secretary may request the Attorney General to bring an action under this section at any time up to and including 6 years after the latest date that the Secretary discovers any use of a property’s assets and income in violation of the regulatory agreement, or such other form of regulatory control as may be imposed by the Secretary, or any applicable regulation.

(e)

Continued availability of other remedies

The remedy provided by this section is in addition to any other remedies available to the Secretary or the United States.

Pub. L. 100–242, title IV, § 421Feb. 5, 1988101 Stat. 1913 Pub. L. 105–65, title V, § 563Oct. 27, 1997111 Stat. 1419 Pub. L. 108–447, div. I, title II, § 220Dec. 8, 2004118 Stat. 3319 Pub. L. 109–115, div. A, title III, § 324Nov. 30, 2005119 Stat. 2466 (, , ; , , ; , , ; , , .)

Editorial Notes

References in Text

act June 27, 1934, ch. 847 48 Stat. 1246 section 1701 of this titleThe National Housing Act, referred to in subsecs. (a) and (c), is , , which is classified principally to this chapter (§ 1701 et seq.). Title II of the National Housing Act is classified generally to this subchapter (§ 1707 et seq.). For complete classification of this Act to the Code, see and Tables.

Codification

Section was enacted as part of the Housing and Community Development Act of 1987, and not as part of the National Housing Act which comprises this chapter.

Amendments

Pub. L. 109–115, § 324(1)2005—Subsec. (a)(1)(A). , inserted “or, at the time of the violations, was” after “is”.

Pub. L. 109–115, § 324(2)Subsec. (a)(1)(C). , inserted “or, at the time of the violations, was insured or held” after “held”.

Pub. L. 108–447, § 220(3)2004—Subsec. (a)(1). , substituted “property” for “project” in second sentence.

Pub. L. 108–447, § 220(1)Subsec. (a)(1)(A). , inserted “, nursing home, intermediate care facility, board and care home, assisted living facility, or hospital” after “project”.

Pub. L. 108–447, § 220(2)Subsec. (a)(1)(B). , inserted “or, at the time of the violations, was” after “whose mortgage is”.

Pub. L. 108–447, § 220(4)Subsec. (a)(2). , substituted “that owns or operates a property, as identified in the regulatory agreement, including but not limited to—” and subpars. (A) to (G) for “which owns a project, as identified in the regulatory agreement, including but not limited to any stockholder holding 25 percent or more interest of a corporation that owns the project; any beneficial owner under any business or trust; any officer, director, or partner of an entity owning the project; and any heir, assignee, successor in interest, or agent of any owner.”

Pub. L. 108–447, § 220(5)Subsec. (c). , substituted “property that the court determines” for “project that the court determines” and “property or to the applicable insurance fund” for “project or to the applicable insurance fund”.

Pub. L. 108–447, § 220(6)Subsec. (d). , substituted “a property’s” for “project”.

Pub. L. 105–65, § 563(1)section 1701q of this title section 1701q of this titleNovember 28, 19901997—Subsec. (a)(1). , substituted “(B) a regulatory agreement that applies to a multifamily project whose mortgage is insured or held by the Secretary under (including property subject to as it existed before ); (C) a regulatory agreement or such other form of regulatory control as may be imposed by the Secretary that applies to mortgages insured or held by the Secretary under section 542 of the Housing and Community Development Act of 1992, but not reinsured under section 542 of the Housing and Community Development Act of 1992; or (D)” for “or (B)” in first sentence and inserted “, or such other form of regulatory control as may be imposed by the Secretary,” after “regulatory agreement” in second sentence.

Pub. L. 105–65, § 563(2)section 1701q of this title section 1701q of this titleNovember 28, 1990Subsec. (a)(2). , inserted “under (including as it existed before ) and under section 542 of the Housing and Community Development Act of 1992,” after “title II of National Housing Act,”.

Pub. L. 105–65, § 563(3)Subsec. (b). , inserted “, or such other form of regulatory control as may be imposed by the Secretary,” after “regulatory agreement”.

Pub. L. 105–65, § 563(4)section 1701q of this title section 1701q of this titleNovember 28, 1990Subsec. (c). , in first sentence, inserted “, or such other form of regulatory control as may be imposed by the Secretary,” after “regulatory agreement” and inserted before period at end of second sentence “or, in the case of any project for which the mortgage is held by the Secretary under (including property subject to as it existed before ), to the project or to the Department for use by the appropriate office within the Department for administrative costs related to enforcement of the requirements of the various programs administered by the Secretary, as appropriate”.

Pub. L. 105–65, § 563(5)Subsec. (d). , inserted “, or such other form of regulatory control as may be imposed by the Secretary,” after “regulatory agreement”.

Section text and notes