 |
 |
|
|
|
|
| search a lawyer |
|
|
| ACTS, STATUTES |
|
|
|
|
|
|
|
|
|
|
|
|
| Home > Statutes > Usa Arizona |
|
USA Statutes : arizona
Title : Banks and Financial Institutions
Chapter : STATE BANKING DEPARTMENT
|
|
6-101 Definitions
In this title, unless the context otherwise requires:
1. "Automated teller machine" means an automated device that is established by a
bank, savings and loan association or credit union and that facilitates customer-bank
communications activities, including taking deposits and disbursing cash drawn against a
customer's deposit account or a customer's preapproved loan account, at a location
separate from the home office or a branch.
2. "Bank" means a corporation that holds a banking permit issued pursuant to
chapter 2 of this title.
3. "Banking office" means any place of business of the bank at which deposits are
received, checks are paid or money is loaned but does not include the premises used for
computer operations, proofing, record keeping, accounting, storage, maintenance or other
administrative or service functions.
4. "Branch" means any banking office other than the principal banking office.
5. "Department" means the department of financial institutions.
6. "Enterprise" means any person under the jurisdiction of the department other
than a financial institution.
7. "Federal deposit insurance corporation" includes any successor to the
corporation or other agency or instrumentality of the United States which undertakes to
discharge the purposes of the corporation.
8. "Financial institution" means banks, trust companies, savings and loan
associations, credit unions, consumer lenders, international banking facilities and
financial institution holding companies under the jurisdiction of the department.
9. "Home state" means the state that has granted the bank its charter, permit or
license to operate.
10. "Host state" means the state in which a financial institution is doing business
and not the state that has granted the bank its charter, permit or license to operate.
11. "In-state financial institution" means a state or federal bank, savings bank,
savings and loan association or holding company with its home office located in this
state.
12. "International banking facility" means a facility represented by a set of asset
and liability accounts segregated on the books and records of a commercial bank, the
principal office of which is located in this state, and which is incorporated and doing
business under the laws of the United States or of this state, a United States branch or
agency of a foreign bank, an edge corporation organized under section 25(a) of the
federal reserve act (12 United States Code sections 611 through 631) or an agreement
corporation having an agreement or undertaking with the board of governors of the federal
reserve system under section 25 of the federal reserve act (12 United States Code
sections 601 through 604(a)) that includes only international banking facility time
deposits and international banking facility extensions of credit as defined in 12 Code of
Federal Regulations part 204.
13. "National credit union administration" includes any successor to the
organization or other agency or instrumentality of the United States which undertakes to
discharge the purposes of the organization.
14. "Out-of-state bank" means a bank, savings bank or savings and loan association
that is approved by the superintendent pursuant to section 6-322 and that has a charter,
a permit or any other license to operate that is issued by a state other than this state.
15. "Out-of-state financial institution" means a state or federal bank, savings
bank, savings and loan association or holding company with its home office in a state
other than this state.
16. "Superintendent" means the superintendent of financial institutions.
17. "Title" includes this title, title 32, chapter 9 and title 44, chapter 2.1.
6-110 Department of financialinstitutions
The department of financial institutions is established. The department has charge
of the execution of the laws of this state relating to financial institutions and
enterprises. 6-111 Superintendent; appointment; term;qualifications; salary
A. The chief officer of the department shall be the superintendent who shall be
appointed by the governor pursuant to section 38-211.
B. The superintendent in office on the effective date of this section shall hold
office until the expiration of his term. The term of the superintendent first appointed
after January 1, 1974 shall end January 17, 1977, and, thereafter the term of office of
the superintendent shall be four years and shall expire on the third Monday in January of
the appropriate year. The superintendent may be removed by the governor for cause.
C. Any person appointed as superintendent shall have had, within fifteen years
preceding his first appointment, at least five years active experience in the financial
institution business as an executive officer or shall have served a like period of time
in a financial institution examining or supervisory capacity for this state or for any
other state or for an agency or instrumentality of the United States.
D. The salary of the superintendent shall be determined pursuant to section 38-611.
6-112 Deputy superintendent; examiners;personnel
A. The superintendent shall appoint a deputy superintendent who shall have the
power and perform the duties of the superintendent. The deputy superintendent shall hold
such appointment at the will and pleasure of the superintendent.
B. The superintendent may appoint such assistants as he deems necessary whose
powers shall be limited to the powers, duties or functions set forth in the appointment.
C. The superintendent shall appoint such examiners and other personnel necessary.
6-113 Acts prohibited; officers;employees
A. Neither the superintendent, the deputy superintendent nor any personnel of the
department shall do any of the following with respect to any financial institution or
enterprise under the jurisdiction of the department:
1. Be indebted, directly or indirectly, as borrower, accommodation endorser, surety
or guarantor, to any such financial institution or enterprise unless such indebtedness
was contracted before becoming employed by the department and is fully disclosed to the
department, except that an employee of the department, other than the superintendent or
the deputy superintendent, may become so indebted if the indebtedness is both:
(a) Incurred on terms no more favorable than those available to the general public.
(b) Fully disclosed to and approved by the superintendent before funding, including
the following information:
(i) The date of the indebtedness.
(ii) The amount.
(iii) The interest rate.
(iv) Other obligors.
(v) Security.
(vi) The purpose for which the monies are to be used. The borrower shall not
participate in any examination of the lender conducted by the department.
2. Be an officer, director or employee of any such financial institution or
enterprise.
3. Own or deal in, directly or indirectly, the shares or obligations of any such
financial institution or enterprise.
4. Be interested in, directly or indirectly, or receive from any such financial
institution or enterprise, or any officer, director or employee thereof, any salary, fee,
compensation or other valuable thing by way of gift, credit, compensation for services or
otherwise.
5. Be interested in or engage in the negotiation of any loan to, obligation of, or
accommodation for another person to or with any such financial institution or enterprise.
B. Notwithstanding the provisions of subsection A, the superintendent, the deputy
superintendent and any personnel of the department may:
1. Maintain demand, savings, time, share and trust accounts in any financial
institution.
2. Become a beneficiary of any trust or estate administered by any fiduciary under
the jurisdiction of the department.
3. Become indebted to and own and deal in shares and obligations of national banks,
federal savings and loan associations and federal credit unions.
6-114 Balloon payments prohibited;applicability; exemptions
A. A person engaged in the business of lending money or negotiating a loan between
parties shall not make or arrange a loan in violation of this section.
B. On a loan in an amount of ten thousand dollars or less for a term up to three
years which is secured by a lien on real property comprising an owner-occupied dwelling,
an installment payment, whether providing for payment of principal, interest or principal
and interest, shall not be greater than twice the amount of the smallest installment.
C. This section applies only to mortgages, trust deeds or other evidences of
indebtedness secured by a lien other than a primary or first lien on real property.
D. This section does not apply to transactions involving the purchase or sale or
the proposed purchase or sale of real property or to a financial institution licensed or
chartered by this state or the federal government.
E. Pursuant to the provisions of 12 United States Code section 3804, this section
shall not be superseded by the provisions of 12 United States Code section 3803.
6-115 Insurance premium transmitters; timelypayment required; civil penalty
A. A person who contracts to receive a payment that includes an amount for payment
of a mortgage, deed of trust or any other obligation secured by real estate and any
amounts to be tendered for payment of an insurance policy premium, a property tax
assessment or any other collateral obligation shall make timely payment of those amounts,
except as provided in subsection C of this section.
B. Monies collected for payment of an insurance policy premium, a property tax
assessment or any other collateral obligation shall be such that the total of the
payments collected for each category during the insurance, tax or other period will
approximate the actual insurance premium, tax or other payment when due.
C. A person who contracts to receive and tender monies as described in subsection A
of this section and who receives a delinquent payment from the payor shall exercise
reasonable diligence in tendering those payments and is not subject to a penalty for
failure to make a timely payment of those monies when first due.
D. A person who violates this section is subject to a civil penalty under section
6-132.
6-116 Sale of securities; disclosure
A. A financial institution doing business in this state or any other person shall
not sell or offer to sell equity securities or debt instruments to the public in a
financial institution's retail office where deposits are accepted without the prior
written approval of the superintendent.
B. A financial institution or any other person that receives written approval as
prescribed by subsection A and that sells or offers to sell equity securities or debt
instruments of the financial institution or the holding company of a financial
institution shall disclose to the purchaser prior to any sale that the equity security or
debt instrument is not a federally insured deposit and shall provide to the purchaser a
disclosure form that is approved by the superintendent. The superintendent may by rule
prescribe requirements for the disclosure form.
C. A financial institution's or a holding company of the financial institution's
application for approval of the disclosure form required by subsection B shall include
information describing the policies and procedures that the financial institution or any
other person authorized to offer or sell the securities has adopted to ensure that it is
marketing the securities with appropriate disclosures regarding the nature of the
investment.
6-121 Examination; supervision
All financial institutions and enterprises shall be subject to examination and
supervision by the department.
6-122 Superintendent; authority; duties;exemption
A. The superintendent has the authority and responsibility for the discharge of all
duties imposed by law on the department.
B. The superintendent shall:
1. Examine or cause to be examined each financial institution annually, except
financial institution holding companies, banks, savings and loan associations, credit
unions and consumer lenders, and more frequently if the superintendent considers it
necessary.
2. Examine or cause to be examined each bank, credit union and savings and loan
association at the superintendent's discretion but at least once in every twenty-four
month period.
3. Examine or cause to be examined the business and affairs of any enterprise and
any consumer lender for the purpose of administering and enforcing this title at the
superintendent's discretion but at least once in a five year period.
4. Examine or cause to be examined financial institution holding companies as
frequently as the superintendent considers necessary to administer and enforce this
title.
5. Notwithstanding paragraph 3, examine or cause to be examined the accounts held
in trust by each escrow agent at least once in every two year period in accordance with
section 20-1593 and examine or cause to be examined each escrow agent at least once in
every four year period or more frequently if the superintendent considers it necessary.
6. Notwithstanding paragraph 3, examine or cause to be examined each premium
finance company at least once in every three year period and more frequently if the
superintendent considers it necessary.
7. Publish a consumer information brochure that includes:
(a) The finance charges permitted by this state.
(b) The types of insurance that may be offered but that are not required by law to
be purchased with the granting of a loan.
(c) Interest rate limitations on all lenders including amounts that may not be
charged to borrowers.
(d) Consumer rights and means of recourse from unfair practitioners.
8. Conduct a survey in January and July of each calendar year of each escrow agent
that is regulated by the department. The superintendent shall compile the results of each
survey and make those results available to the public. The survey shall be in
substantially the following format:
"Please rate the performance of the department of financial institutions as one of
the following: excellent, very good, good, fair, poor.
Please describe any problems that you believe should be addressed by the
department."
C. Notwithstanding subsection B, paragraph 5 of this section an escrow agent shall
be examined within twelve months when an escrow agent's license is transferred or
assigned pursuant to section 6-813 or when control of the license is otherwise acquired.
D. Subsection B, paragraph 3 of this section does not apply to motor vehicle
dealers, sales finance companies or persons licensed under chapter 12 of this title.
6-123.01 Fingerprint requirements; fees
A. Before receiving and holding a license, permit, certificate or permission to
organize a bank, savings and loan or credit union, the superintendent may require an
applicant, licensee, active manager or responsible individual or an organizer, director
or officer of any corporate applicant or licensee to submit a full set of fingerprints
and fees to the department. The department of financial institutions shall submit the
fingerprints and fees to the department of public safety for the purpose of obtaining a
state and federal criminal records check pursuant to section 41-1750 and Public Law
92-544. The department of public safety may exchange this fingerprint data with the
federal bureau of investigation.
B. The fees that the department collects under subsection A of this section shall
be credited pursuant to section 35-148.
C. The applicant is responsible for providing the department with readable
fingerprints. The applicant shall pay any costs that are attributable to refingerprinting
due to the unreadability of any fingerprints and any fees that are required for the
resubmission of fingerprints.
D. The department may issue a license or certificate or grant permission to
organize to an original applicant before the department receives the results of a
criminal records check if there is not evidence or reasonable suspicion that the
applicant has a criminal history background that would be cause for denial of a license,
certificate or permission to organize. The department may suspend the license or
certificate or permission to organize if a fingerprint card is returned as unreadable and
the applicant fails to submit new fingerprints within ten days after being notified by
the department that the original card was unreadable.
E. The superintendent may require a current licensee, organizer, director, active
manager, responsible individual or officer of any corporate licensee to submit a full set
of fingerprints to the department. The department of financial institutions shall submit
the fingerprints and fees to the department of public safety for the purpose of obtaining
a state and federal criminal records check pursuant to section 41-1750 and Public Law
92-544. The department of public safety may exchange this fingerprint data with the
federal bureau of investigation.
F. This section does not affect the department's authority to otherwise issue,
deny, cancel, terminate, suspend or revoke a license.
6-123 Superintendent; powers
In addition to the other powers, express or implied, the superintendent may:
1. Exercise all powers that are necessary for the administration and enforcement of
the laws and rules relating to financial institutions and enterprises.
2. In accordance with title 41, chapter 6, adopt rules that are necessary or
appropriate to administer, enforce and accomplish the purposes of this title and adopt
rules and issue orders that limit transactions between financial institutions or
enterprises and the directors, officers or employees of the financial institutions or
enterprises.
3. Require appropriate records, documents, information and reports from any
financial institution or enterprise.
4. Submit to the department of public safety the name and fingerprints of any
applicant, licensee, active manager or responsible individual or the name and
fingerprints of any organizer, director or officer of any corporate applicant or licensee
for:
(a) A banking permit.
(b) Permission to organize a savings and loan association or credit union.
(c) Any license.
(d) Any certificate.
(e) Authority to engage in interstate banking and branching in this state.
The department of public safety shall report the criminal record, if any, of such
applicant, licensee or organizer, director or officer of such corporate applicant or
licensee within ninety days of receipt of the request of the superintendent.
5. Employ appraisers to appraise any property that is owned or held as security by
any financial institution or enterprise. The reasonable expenses and compensation of
such appraisers shall be paid by the financial institution or enterprise.
6. Hold membership in, pay dues to and attend the convention of the national and
regional organizations of state officials occupying like offices or performing similar
functions.
7. Cooperate with other regulatory agencies and professional associations to
promote the efficient, safe and sound operation and regulation of interstate banking and
branching activities, including the formulation of interstate examination policies and
procedures and the drafting of model rules and agreements.
6-124 Investigations; compelling testimony andthe production of documents; self-incrimination
A. The superintendent may conduct examinations and investigations within or outside
this state to determine whether any person has engaged, is engaging or is about to engage
in any act, practice or transaction which constitutes an unsafe or unsound practice or a
violation of any law or rule applicable to persons subject to the jurisdiction of the
superintendent or any order of the superintendent or to aid in the enforcement of this
title or to aid in adopting rules.
B. The superintendent and any examiner or administrative law judge, in the
performance of the superintendent's, examiner's or administrative law judge's duties, may
take evidence, examine on oath any person and compel the attendance of witnesses and the
production of documents, books and papers. Upon refusal to appear or produce, the
superintendent may apply to the superior court in Maricopa county to compel appearance or
production.
C. All financial institutions and enterprises shall, upon request of the
superintendent, make their books and records available for inspection and examination by
the superintendent or the superintendent's examiners.
6-125 Annual examination assessment offinancial institutions and enterprises; costs of foreignexamination; payment
A. Before August 31 of each year the superintendent shall make the following annual
assessments:
1. Upon banks, the annual assessment set by the superintendent.
2. Upon savings and loan associations, a charge not to exceed the annual assessment
set for state banks under paragraph 1 of this subsection.
3. Upon credit unions, the annual assessment set by the superintendent.
B. The superintendent shall assess against the institution or enterprise examined a
charge at the rate set by the superintendent but not to exceed sixty-five dollars per
hour for each examiner employed in the following examinations:
1. Any examination of a trust company.
2. Any examination of the trust operation of a bank or a savings and loan
association.
3. Any examination of a financial institution ordered by the superintendent in
addition to the regular examination required under section 6-122.
4. Any examination of an enterprise ordered by the superintendent.
5. Any examination of a financial institution holding company or international
banking facility.
6. Any examination of a consumer lender.
C. For a financial institution or enterprise maintaining an office outside this
state, in addition to the annual assessment or examination assessment, the superintendent
shall make an assessment equal to the travel and subsistence expense incurred in the
examination of the office in the foreign state or country. Notwithstanding any other
limitation prescribed by law, examiners engaged in examination of a foreign office shall
be reimbursed for their necessary travel and subsistence expenses. Reimbursement for
examiners' expenses shall be credited to the appropriation account of the department.
D. Assessments under this section are due and payable to the department within
thirty days after notice of the assessment is mailed by the department. The
superintendent shall assess a penalty of fifty dollars for each day after the thirty-day
period that the financial institution or enterprise fails to remit the assessment,
unless, upon good cause shown, a written request for an extension is approved by the
superintendent prior to the expiration of the specified time. In no event shall the
total penalty exceed the examination assessment.
E. The superintendent shall set the amount of the annual assessment to be charged
to banks and credit unions. In setting the annual assessment upon banks, the
superintendent shall consider the annual assessment set by the comptroller of currency
for national banks. In setting the annual assessment upon credit unions the
superintendent shall consider the annual assessment set by the national credit union
administration for federal credit unions.
6-126 Application fees for financialinstitutions and enterprises
A. The following nonrefundable fees are payable to the department with the filing
of the following applications:
1. To apply for a banking permit, ten thousand dollars.
2. To apply for an amendment to a banking or savings and loan association permit,
one thousand dollars.
3. To establish each banking branch office, one thousand five hundred dollars.
4. To move a banking office to other than an established office of a bank, one
thousand dollars.
5. To apply for a savings and loan association permit, ten thousand dollars.
6. To establish each savings and loan association branch office, one thousand five
hundred dollars.
7. To move an office of a savings and loan association to other than an established
office, one thousand dollars.
8. To organize and establish a credit union, one hundred dollars.
9. To establish each credit union branch or credit union freestanding automated
teller machine or to move a credit union office to other than an established office of a
credit union, two hundred fifty dollars.
10. To organize and establish any other financial institutions for which an
application or investigation fee is not otherwise provided by law, two thousand five
hundred dollars.
11. To acquire control of a financial institution, other than a consumer lender,
five thousand dollars.
12. To apply for a trust company license, five thousand dollars.
13. To apply for a commercial mortgage banker, mortgage banker, escrow agent or
consumer lender license, one thousand five hundred dollars.
14. To apply for a mortgage broker, sales finance company or debt management company
license, eight hundred dollars.
15. To apply for a collection agency license, one thousand five hundred dollars.
16. To apply for a deferred presentment company license, one thousand dollars.
17. To apply for a motor vehicle dealer license, three hundred dollars.
18. To apply for a branch office of an escrow agent, consumer lender, commercial
mortgage banker, mortgage banker, trust company, money transmitter, collection agency or
deferred presentment company, five hundred dollars.
19. To apply for a branch office of a mortgage broker, debt management company or
sales finance company, two hundred fifty dollars.
20. To apply for approval of the articles of incorporation of a business development
corporation, five hundred dollars.
21. To establish each freestanding automated teller machine, not otherwise provided
by law, five hundred dollars.
22. To apply for approval for the merger or consolidation of two or more financial
institutions, five thousand dollars per institution.
23. To apply for approval to convert from a national bank or federal savings and
loan charter to a state chartered institution, five thousand dollars.
24. To apply for approval to convert from a federal credit union to a state
chartered credit union, one thousand dollars.
25. To apply for approval to merge or consolidate two or more credit unions, five
hundred dollars per credit union.
26. To move an established office of an enterprise to other than an established
office, fifty dollars.
27. To issue a duplicate or replace a lost enterprise's license, one hundred
dollars.
28. To change a responsible person on a mortgage broker's, commercial mortgage
banker's or a mortgage banker's license, two hundred fifty dollars.
29. To change an active manager on a collection agency license or a manager of a
money transmitter branch office license, two hundred fifty dollars.
30. To change the licensee name on a financial institution or enterprise license,
two hundred fifty dollars.
31. To apply for a money transmitter license, one thousand five hundred dollars plus
twenty-five dollars for each branch office and authorized delegate to a maximum of four
thousand five hundred dollars.
32. To acquire control of any money transmitter or controlling person pursuant to
chapter 12 of this title, two thousand five hundred dollars.
33. To receive the following publications:
(a) Quarterly bank and savings and loan statement of condition, not more than ten
dollars per copy.
(b) Monthly summary of actions report, not more than five dollars per copy.
(c) A list of licensees, a monthly pending actions report and all other in-house
prepared reports or listings made available to the public, not more than one dollar per
page.
B. On issuance of a license or permit for a financial institution or enterprise,
the superintendent shall collect the first year's annual assessment or renewal fee for
the financial institution or enterprise prorated according to the number of quarters
remaining until the date of the next annual assessment or renewal.
C. The following annual renewal fees shall be paid each year:
1. For an escrow agent, or trust company, one thousand dollars plus two hundred
fifty dollars for each branch office.
2. For a debt management company or sales finance company, five hundred dollars
plus two hundred dollars for each branch office.
3. For a collection agency, six hundred dollars plus two hundred dollars for each
branch office.
4. For a motor vehicle dealer, one hundred fifty dollars.
5. For an inactive mortgage broker, two hundred fifty dollars.
6. For a mortgage banker that negotiates or closes in the aggregate one hundred
loans or less in the immediately preceding calendar year, seven hundred fifty dollars,
and for a mortgage banker that negotiates or closes in the aggregate over one hundred
loans in the immediately preceding calendar year, one thousand two hundred fifty dollars.
In addition, a mortgage banker shall pay two hundred fifty dollars for each branch
office.
7. For a commercial mortgage banker, one thousand two hundred fifty dollars. In
addition, a commercial mortgage banker shall pay two hundred fifty dollars for each
branch office.
8. For a mortgage broker that negotiates or closes in the aggregate fifty loans or
less in the immediately preceding calendar year, two hundred fifty dollars and for a
mortgage broker that negotiates or closes in the aggregate more than fifty loans in the
immediately preceding calendar year, five hundred dollars. In addition, a mortgage broker
shall pay two hundred dollars for each branch office.
9. For a consumer lender, one thousand dollars plus two hundred dollars for each
branch office.
10. For a money transmitter, five hundred dollars plus twenty-five dollars for each
branch office and each authorized delegate to a maximum of two thousand five hundred
dollars.
11. For a deferred presentment company, four hundred dollars. In addition, a
deferred presentment company shall pay two hundred dollars for each branch office.
D. The license, renewal or branch office permit fee for a premium finance company
for each calendar year or part thereof shall not be less than one hundred dollars or more
than three hundred dollars as set by the superintendent. If the license is issued or the
branch office is opened after June 30 in any year the fees shall not be less than fifty
dollars or more than one hundred fifty dollars for that year.
6-127 Disposition of revenue
All fees, charges, fines and assessments received by the department shall be
deposited, pursuant to sections 35-146 and 35-147, in the state general fund except as
provided in sections 6-135 and 6-135.01. 6-128 Joint examinations; acceptance of federalregulatory and other authorized examinations
A. The examination of a financial institution or enterprise may be made in
coordination with any authorized federal examination or an examination by another
state. The superintendent in his discretion may accept the examination report or other
information compiled or generated by a federal regulatory authority or by another state
regulatory authority that has jurisdiction over the financial institution or enterprise
in lieu of any examination authorized or required by the laws of this state. Acceptance
of the examination reports shall not be a waiver of the examination assessments provided
by law, and reports so accepted are considered for all purposes as an official report of
the department.
B. The superintendent may take any reasonable and lawful action to coordinate the
examination of financial institutions or enterprises, including:
1. Negotiating and entering into cooperative agreements with an agency of another
state or of the federal government.
2. Sharing information and reports with persons as prescribed by section 6-129.
6-129.01 Enterprise documents open to public inspection
All papers, documents, reports and other written instruments filed with the
superintendent pursuant to the requirements of this title by an enterprise shall be open
to public inspection, except that the superintendent may withhold from public inspection
for such time as he considers necessary any information which in his judgment the public
welfare or the welfare of the financial enterprise requires to be so withheld.
6-129 Records; disclosure and limitations ondisclosure; evidentiary effect
A. Except as otherwise provided by this title, the records of the department
relating to financial institutions shall not be public documents nor shall they be open
for inspection by the public and neither the superintendent nor any member of his staff
shall disclose any information obtained in the discharge of official duties to any person
not connected with the department.
B. Records and information may be disclosed as follows:
1. To representatives of federal agencies insuring accounts in the financial
institution.
2. To representatives of state or federal agencies and foreign countries having
regulatory or supervisory authority over the activities of the financial institution or
enterprise or similar financial institutions or enterprises if such representatives are
permitted to and do, upon request of the superintendent, disclose similar information
respecting those financial institutions or enterprises under their regulation or
supervision or to such representatives who state in writing under oath that they shall
maintain the confidentiality of such information.
3. To the attorney general of this state.
4. To a select committee of the legislature of this state appointed for the purpose
of inspecting such records, but this paragraph shall not permit disclosure of information
as to the condition of any particular financial institution or enterprise, or disclosure
of information as to any particular transaction or transactions of a financial
institution or enterprise, or disclosure of information which has been disclosed to a
financial institution or enterprise by or on behalf of any person in connection with a
transaction or proposed transaction with such financial institution or enterprise.
5. To a federal, state or county grand jury in response to a lawful subpoena.
6. To the auditor general of this state for the purpose of conducting audits
authorized by law.
7. To state and federal law enforcement agencies.
C. The superintendent may:
1. Disclose the fact of filing of applications with the department pursuant to this
title, give notice of a hearing, if any, regarding such applications, and announce his
action thereon.
2. Disclose whether a person is or was certified or licensed by the department, the
type of license or certificate held and the status of the license or certificate.
3. Disclose final decisions in connection with proceedings for the suspension or
revocation of licenses or certificates issued pursuant to this title.
4. Disclose final decisions in connection with the issuance of an order to cease
and desist issued pursuant to section 6-137.
5. Disclose to the financial institution or enterprise or its holding company the
results of any examination, inquiry or investigation by the department regarding that
financial institution or enterprise.
6. Disclose to the financial institution or enterprise any complaint made
concerning that financial institution or enterprise.
7. Disclose to any person who complains to the department concerning any financial
institution or enterprise the result of any investigation concerning the complaint.
8. Prepare and circulate reports reflecting the assets and liabilities of financial
institutions, including such other information considered pertinent to the purpose of
each report for general statistical information.
9. Prepare and circulate reports provided by law.
D. Every official report of the department is prima facie evidence of the facts
therein stated in any action or proceeding wherein the superintendent is a party.
E. Disclosure of the results of any examination, inquiry or investigation disclosed
to the financial institution or enterprise pursuant to subsection C, paragraph 5 of this
section or disclosure of any complaint to the financial institution or enterprise
pursuant to subsection C, paragraph 6 of this section does not make that information a
public record, and the financial institution or enterprise or its holding company may not
disclose any of the information to the general public. Under no circumstances shall any
of the comments, conclusions or results of an examination, inquiry or investigation
disclosed pursuant to subsection C, paragraph 5 of this section be used or referenced in
any form by a financial institution, enterprise or holding company in any type of
communication to a customer or potential customer.
F. Nothing in this section shall be construed to prevent the disclosure of
information which is admissible in evidence in any civil or criminal proceeding brought
by or at the request of the superintendent or this state to enforce or prosecute
violations of this title or the rules or orders issued or adopted pursuant to this title.
6-130 Limitation of personal liability
No officer or employee of the department shall be liable in any civil action for
damages for any act done or omitted in good faith in performing the functions of the
department.
6-131.01 Appointment of superintendent as receiver; award of property, fees and costs
A. The superintendent may be appointed as a receiver of a financial institution or
enterprise under his supervision. No bond is required of the superintendent for acting
as a receiver.
B. All reasonable expenses of the department relating or apportioned to a
receivership, including receiver fees and attorney fees, costs of preliminary or other
examinations of the person placed into receivership and expenses relating to the
management of any office or other asset of the person placed in receivership, shall be
awarded by the court for payment to the department out of the assets of the
receivership. The department shall assess those expenses against the receivership
quarterly and shall deposit those amounts in the department receivership revolving fund,
as provided in section 6-135.01. Those assessments have priority over the other
creditors of the receivership. Notwithstanding the other provisions of this subsection,
on request by the superintendent, the court may award personal property of the
receivership to the department as partial compensation for the services rendered during
the administration of the receivership.
C. The superintendent shall maintain a complete accounting of each receivership in
which he is appointed as receiver.
6-131 Right to sue and defend in actions;liability limitation; award of fees and other expenses
A. The superintendent may sue and prosecute or defend in any action or proceeding
in any court of this state or any other state or territory and in any court of the United
States for the enforcement or protection of any right or pursuit of any remedy necessary
or proper in connection with the matters committed to him for administration or in
connection with any financial institution or enterprise under his supervision, or the
rights, liabilities, property or assets thereof, and may obtain without bond any order
necessary to enforce or protect such rights or remedies including but not limited to:
1. An order impounding records, books, documents, accounts, monies, negotiable
instruments or papers and placing such articles in the possession of the superintendent
until completion of all proceedings undertaken pursuant to this title.
2. An order appointing a receiver.
3. An order restoring to any person in interest any monies or property, real or
personal, which may have been acquired or transferred in violation of this title.
B. Nothing in this section shall be construed to render the superintendent as such
superintendent or otherwise liable to suit except as any other department or agency of
the state may be liable under the general law.
C. In addition to any costs which are awarded as prescribed by statute, a court
shall award fees and other expenses to the department if the department prevails by an
adjudication on the merits in any action brought by the department to enforce the
provisions of this title or any rule promulgated under this title. The department may
apply pursuant to the applicable procedural rules for an award of attorney fees and other
expenses authorized under this section and shall include as part of the application
evidence of the department's eligibility for the award and the amount sought, including
an itemized statement from the attorneys and experts stating the actual time expended in
representing the department and the rate at which the fees were computed. As used in
this subsection, "fees and other expenses" includes the reasonable expenses of expert
witnesses, the reasonable cost of any study, analysis, report, test or project which is
found by the court to be necessary for the preparation of the department's case and
reasonable and necessary attorney fees. The department shall deposit any fees or other
expenses awarded by a court in the revolving fund provided by section 6-135.
6-132 Violation of title; civil penalty
The superintendent may assess a civil penalty in an amount of not more than five
thousand dollars against a person, including any officer, director, employee, agent or
other person who participates in the conduct of the affairs of the person, for any
knowing violation of any provision of this title or of any rule or order adopted or
issued pursuant to this title. If the assessment is not paid in full within thirty days
after the service of the notice of the assessment on the person, the attorney general, on
request of the superintendent, shall bring an action in the superior court in the county
in which a violation of this section is alleged to have occurred in the same manner as
the filing of other actions. On the finding of a knowing violation of this section by
the defendant in any such action, the court may enforce the civil penalty imposed by the
superintendent or may impose a different civil penalty in an amount as it deems
appropriate for each violation. Each day of violation constitutes a separate offense.
6-133 Violations; classification
A. Any person who knowingly violates any provision of this title for which a
different penalty is not specifically provided or knowingly violates any rule, regulation
or order issued or promulgated pursuant to this title is guilty of a class 6
felony. Each day of violation shall constitute a separate offense.
B. Any person who knowingly makes any false statement, misrepresentation or false
certification in any application, record, report, plan or other document filed or
required to be maintained pursuant to this title or under any license, certificate, rule,
regulation or order issued pursuant to this title with intent to deceive the
superintendent is guilty of a class 3 felony.
C. Any person who knowingly makes any false entry or omits a material entry in any
record, report or statement of a financial institution with intent to injure or defraud
the financial institution or to deceive the superintendent or any agent or examiner
appointed by the superintendent to examine the affairs of the financial institution is
guilty of a class 3 felony.
6-134 False statements as to financialcondition; classification
Any person who knowingly makes, circulates or transmits to another a false statement
or rumor, written, printed or by word of mouth, which is, directly or by inference,
derogatory of the financial condition or solvency of any bank, savings and loan
association or credit union is guilty of a class 2 misdemeanor.
6-135.01 Department receivership revolving fund; use of fund
A. A department receivership revolving fund is established to be administered by
the superintendent. The fund shall consist of monies from the following sources:
1. Monies awarded and received as fees and costs in receiverships in which the
superintendent was the receiver, as provided in section 6-131.01.
2. Monies received from the department revolving fund, as provided in section
6-135, subsection B.
B. Monies in the fund may be used to pay any costs incurred by the department
arising out of the administration of a receivership in which the superintendent is the
receiver.
C. The superintendent shall submit to the legislature with the department's annual
budget request a full and complete account of the department receivership revolving fund
through the end of its most recent fiscal year.
6-135 Department revolving fund; use offund
A. There is established a department revolving fund to be administered by the
superintendent under the conditions and for the purposes provided by this
section. Monies in the fund are exempt from the provisions of section 35-190, relating
to the lapsing of appropriations.
B. Any investigative costs, attorney fees or civil penalties recovered for the
state by the attorney general or the superintendent as a result of actions brought
pursuant to this title, whether by final judgment, settlement or otherwise, shall be
deposited in the department revolving fund. If the unencumbered portion of the fund
exceeds fifty thousand dollars at the end of the fiscal year, all unencumbered monies in
excess of fifty thousand dollars shall be deposited in the department receivership
revolving fund, pursuant to section 6-135.01.
C. The monies in the fund shall be used by the superintendent and the attorney
general for investigative proceedings or for purposes of instituting and prosecuting
civil actions pursuant to this title.
D. On or before the fifteenth day of February, May, August and November, the
superintendent shall file with the governor, with copies to the director of the
department of administration, the president of the senate and the speaker of the house of
representatives, a full and complete account of the receipts and disbursements from the
fund in the previous calendar quarter.
6-136 Violation of order or injunction;penalty
Any person who violates any order or injunction issued by a court of competent
jurisdiction pursuant to this title shall, in addition to any other penalty or remedy for
contempt of court, forfeit and pay to this state a civil penalty of not more than ten
thousand dollars for each violation as such court may deem just and proper. For the
purpose of this section, the superior court issuing any order or injunction shall retain
jurisdiction and the cause shall be continued. The attorney general acting in the name
of this state may petition for recovery of civil penalties pursuant to this section.
6-137 Cease and desist orders;injunctions
A. If it appears to the superintendent that any person has engaged, is engaging or
is about to engage in any act, practice or transaction which constitutes a violation of
this title or any rule or order of the superintendent or a violation of any federal
insurance regulation as determined by the appropriate federal regulatory authority in
writing, the superintendent may issue an order directing the person and directors,
officers, employees and agents of the person to cease and desist from engaging in the
act, practice or transaction or doing any act in furtherance of the act, practice or
transaction and to take appropriate affirmative action, within a reasonable period of
time as prescribed by the superintendent, to correct the conditions resulting from the
act, practice or transaction.
B. If it appears to the superintendent that any financial institution or enterprise
or any officer, director, employee, agent or other person participating in the conduct of
the affairs of the financial institution or enterprise has engaged, is engaging or is
about to engage in any act, practice or transaction which constitutes an unsafe or
unsound practice or a violation of any order of the superintendent, applicable law or
rule, written agreement entered into with the superintendent or condition imposed in
writing by the superintendent in connection with the granting of any application or other
request by the financial institution or enterprise, the superintendent may issue an order
directing the financial institution or enterprise or any director, officer, employee,
agent or other person participating in the conduct of the affairs of the financial
institution or enterprise to cease and desist from engaging in the act, practice or
transaction or doing any act in furtherance of the act, practice or transaction and to
take appropriate affirmative action, within a reasonable period of time as prescribed by
the superintendent, to correct the conditions resulting from the act, practice or
transaction.
C. An order issued by the superintendent under this section becomes effective at
the time of service and remains effective and enforceable except to the extent that it is
stayed, modified, terminated or set aside by the superintendent or a reviewing court
pursuant to this article.
D. A person aggrieved by an order issued by the superintendent under this section
may request a hearing pursuant to title 41, chapter 6, article 10. After requesting a
hearing, the person may move that the order be stayed or modified pending the hearing.
If the order is not stayed or modified or the motion is not acted on within ten days, the
person may apply to the superior court for an order for relief.
E. If it appears to the superintendent that a person has engaged, is engaging or is
about to engage in an act, practice or transaction which constitutes a violation of this
title or any rule or order of the superintendent or a violation of any federal insurance
regulation as determined by the appropriate federal regulatory authority, the
superintendent may apply to the superior court in Maricopa county for any of the
following:
1. An injunction enjoining the person from engaging in the act, practice or
transaction or from doing any act in furtherance of the act, practice or transaction, and
upon a showing by the superintendent that the person has engaged, is engaging or is about
to engage in an act, practice or transaction in violation of this title, any other
applicable law or any rule or order of the superintendent the court shall grant without
bond a temporary restraining order, preliminary injunction or permanent injunction.
2. An order granting additional relief as may be available under this title.
F. The court shall give an action brought pursuant to this section precedence over
all other civil actions. 6-138 Hearings
The superintendent or an administrative law judge shall conduct hearings, including
hearings relating to orders of the superintendent granting, denying, revoking or
suspending a permit, certificate or license provided for under this title, in accordance
with title 41, chapter 6, article 10.
6-139 Judicial review
Except as provided in section 41-1092.08, subsection H, a final decision of the
superintendent is subject to judicial review pursuant to title 12, chapter 7, article 6
if the complaint seeking review is filed with the superior court in Maricopa county and
served on the superintendent.
6-140 Credit cards; reporting rates; quarterlyreport of superintendent; definition
A. A financial institution which issues revolving loan accounts resulting from
credit card accounts to persons residing in this state shall report to the superintendent
the financial institution's current interest rate for all such credit card accounts. The
report shall include the following information, if applicable:
1. The interest rate for the credit card as an annual percentage rate as that term
is defined in the federal consumer credit protection act (15 United States Code section
1606). If interest rates vary depending on the outstanding balances, the financial
institution shall disclose that rate separately.
2. The annual fee charged for obtaining the credit card.
3. The amount of any late payment or delinquency charge.
4. The existence of a grace period during which no interest is charged on the
outstanding balance.
5. The minimum monthly payment.
6. The amount or method of determining any other charge permitted by section
44-1205, subsection C.
7. Any inducement offered by a financial institution to a holder of its credit card
or an applicant for its credit card.
B. Within thirty days after a change in the information required by subsection A of
this section the financial institution shall report such change to the superintendent.
C. The superintendent shall at least quarterly compile a report of the interest
rates of each financial institution for the types of credit card accounts issued to
persons in this state. The superintendent shall distribute this report in a manner
deemed appropriate by the superintendent, and the superintendent shall make the report
available to the public for inspection and copying.
D. For the purposes of this section, in addition to the entities included in the
definition in section 6-101, paragraph 8, "financial institution" also includes a
national bank, federal savings bank, federal savings and loan association or federal
credit union with its home office in this state or with a branch in this state.
6-141 Definitions
In this article, unless the context otherwise requires:
1. "Acquisition of control" means any transaction whereby a person obtains,
directly or indirectly, control of a bank, trust company, savings and loan association or
controlling person.
2. "Control" means direct or indirect ownership of or power to vote fifteen per
cent or more of the outstanding voting securities of a bank, trust company, savings and
loan association or controlling person or to control in any manner the election of a
majority of the directors of a bank, trust company, savings and loan association or
controlling person. For the purposes of determining the percentage of voting securities
owned, controlled or held by a person, there shall be aggregated with the voting
securities attributed to such person the voting securities of any other person directly
or indirectly controlling, controlled by or under common control with such other person
or by any officer, partner, employee or agent of such person, or by any spouse, parent or
child of such person.
3. "Controlling person" means any person directly or indirectly in control of a
bank, trust company or savings and loan association.
4. "Person" means an individual, corporation, partnership, association, trust,
agency or any similar entity.
5. "Voting security" means any security presently entitling the owner or holder of
such security to vote for the election of directors of a bank, trust company, savings and
loan association or controlling person, excluding, in the case of a savings and loan
association, votes attributable to savings accounts. A specified percentage of
outstanding voting securities means such amount of the outstanding voting securities as
entitles the holder or holders of such securities to cast that specified percentage of
the aggregate votes which the holders of all the outstanding voting securities are
entitled to cast.
6-142 Unlawful control
A person shall not directly or indirectly acquire control of a bank, trust company,
savings bank, savings and loan association or controlling person, except with the
approval of the superintendent or as otherwise permitted by this article.
6-143 Exempt persons and transactions
A. This article shall not apply to the following persons or transactions of the
type specified:
1. A person who controls a bank, trust company or savings and loan association or
controlling person on the date this article becomes law and who continues to control such
bank, trust company, or savings and loan association.
2. A registered dealer who acts as an underwriter or member of a selling group in a
public offering of the voting securities of a bank, trust company, savings and loan
association or controlling person.
3. A person who acts as proxy for the sole purpose of voting at a designated
meeting of the security holders of a bank, trust company, savings and loan association or
controlling person.
4. A person who acquires control of a bank, trust company, savings and loan
association or controlling person by devise or descent.
5. A person who acquires control of a bank, trust company, savings and loan
association or controlling person as a personal representative, custodian, guardian or
conservator appointed by a court or as a trustee, receiver or other officer appointed by
a court.
6. A pledgee of a voting security of a bank, trust company, savings and loan
association or controlling person who does not have the right, as pledgee, to vote such
voting security.
7. A transaction approved pursuant to chapter 2, article 7 of this title.
B. There shall be exempted from the provisions of this article any person or
transaction which the superintendent by rule or order exempts as not being necessary or
appropriate in the public interest or for the protection of a bank, trust company,
savings bank or savings and loan association, or the depositors, beneficiaries, creditors
or shareholders of such bank, trust company, savings bank or savings and loan
association.
C. A person may, prior to filing an application for approval, request in writing a
determination from the superintendent as to whether such person, upon consummation of a
proposed transaction, will be in control. Upon such request, the superintendent may
enter an order that the person will not be in control, in which event the proposed
transaction will be an exempt transaction under this article.
6-144 Acquisition of control; approval ofsuperintendent
A person shall not, directly or indirectly, make a tender offer for, request or
invite a tender offer for, offer to exchange securities for or acquire in the open market
or otherwise, any voting security or any security convertible into a voting security of a
bank, trust company, savings and loan association or controlling person if such a
transaction would result in the person acquiring control of a bank, trust company or
savings and loan association or controlling person unless the superintendent has approved
such acquisition of control, except that nothing in this section shall prohibit a person
from negotiating or entering into agreements subject to the condition that the
acquisition of control will not be effective until approval of the superintendent is
obtained.
6-145 Application for approval
A. An application for approval of the superintendent shall be in writing in such
form as the superintendent may prescribe and shall be accompanied by such information,
data and records as the superintendent may require. For such purpose the superintendent
shall adopt rules prescribing the form and the information, data or records which may be
required.
B. Upon receipt of any initial application for approval or any amendment or
supplement to such application, the superintendent shall cause copies of such
application, amendment or supplement to be given to the bank, trust company or savings
and loan association concerned within three business days.
6-146 Material change of fact; filing amendedstatements
If any material change occurs in the facts set forth in the application, or if for
any other reason the acquiring party desires to amend such application, an amendment
setting forth such change, together with copies of all documents and other material
relevant to such change, shall be filed with the superintendent.
6-147 Denial of application; grounds
A. With respect to the proposed acquisition of control of a bank, trust company,
savings and loan association or controlling person, an application shall be denied if the
superintendent finds any of the following:
1. That the financial condition of any person who would acquire control is such as
may jeopardize the financial stability of the bank, trust company or savings and loan
association, or prejudice the interests of the depositors, beneficiaries, creditors and
shareholders of the bank, trust company or savings and loan association.
2. That a plan or proposal to liquidate the bank, trust company or savings and loan
association, to merge or consolidate the bank, trust company or savings and loan
association or to make any other major change in the business, corporate structure or
management of the bank, trust company or savings and loan association is not fair and
reasonable to the depositors, beneficiaries, creditors or shareholders of the bank, trust
company or savings and loan association.
3. That the overall moral character or integrity of any person who would acquire
control indicates that it would not be in the interest of the depositors, beneficiaries,
creditors or shareholders of the bank, trust company or savings and loan association, or
in the interest of the public, to permit such person to control the bank, trust company
or savings and loan association.
4. That the applicant neglects, fails or refuses to furnish to the superintendent
any information required by the superintendent.
5. That it is contrary to law.
B. The superintendent may, in approving a proposal to acquire control of a bank,
trust company or savings and loan association, impose such conditions as he deems
reasonable, necessary or advisable in the public interest.
6-148 Failure to act on application asapproval
A. Notwithstanding any other provision of this article, any application for
approval to acquire control of a bank, trust company, savings and loan association or
controlling person which is not denied or approved by the superintendent within a period
of sixty days after such application is filed with the superintendent or if the applicant
consents to an extension of the period within which the superintendent may act, within
such extended period, shall be deemed to be approved by the superintendent as of the
first day after such period of sixty days or such extended period. If the superintendent
gives notice of a hearing, the sixty-day period shall be extended to such date as may be
fixed by order of the superintendent.
B. For purposes of this section, an application for approval is deemed to be filed
with the superintendent at the time when the complete application, including any
amendments or supplements, containing all the information in the form required by the
superintendent, is received by the superintendent.
6-149 Determination of control of one person byanother; hearing; notice
Before determining whether a person controls another person or before denying or
approving an application for approval to acquire control of a bank, trust company,
savings and loan association or controlling person the superintendent may hold a
hearing. Notice of such hearing shall be given by the superintendent to the applicant,
the bank, trust company, savings and loan association or controlling person concerned and
to such other persons as the superintendent determines appropriate. The date for
commencement of the hearing shall not be later than thirty days after the date of the
notice, unless the applicant consents to an extension of such period.
6-150 Appointment of superintendent as agentfor service of process; forwarding of process; consent tojurisdiction
Any person who is not a resident of this state, domiciled in this state or
authorized to do business in this state and who files an application is deemed to have:
1. Consented to the jurisdiction of the courts of this state for all actions
arising under the provisions of this article.
2. Appointed the superintendent as his lawful agent for the purpose of accepting
service of process in any action, suit or proceeding that may arise under this
article. Copies of all such lawful process accepted by the superintendent as an agent
shall be transmitted by the superintendent by registered mail to such person at his last
known address.
6-151 Injunctions
If it appears to the superintendent that any person has committed or is about to
commit a violation of any provision of this article or of any rule or order of the
superintendent, the superintendent may apply to the superior court for an order enjoining
such person from violating or continuing to violate this article or any regulation or
order and for injunctive or other relief as the nature of the case or the interests of
the bank, trust company or savings and loan association, the depositors, beneficiaries,
creditors or shareholders of such bank, trust company or savings and loan association may
require.
6-153 Acquisition of voting securities inviolation of article; limitation on rights as shareholder;injunction
A. With respect to any voting security acquired in violation of this article or any
rule or order of the superintendent, a person shall not be entitled to vote or give a
written proxy or consent for a period of five years after such acquisition except with
the written consent of the superintendent. If a voting security of a bank, trust company,
savings and loan association or controlling person is acquired in violation of this
article or any rule or order, any shareholder of such bank, trust company, savings and
loan association, or controlling person or the superintendent may apply to the superior
court for injunctive or other equitable relief, including costs and reasonable attorney
fees, to enjoin prospectively any person from voting or giving any written proxy or
consent with respect to such voting security for a period of five years after such
acquisition except with the written consent of the superintendent. The superintendent may
apply to the superior court for injunctive or other relief, including costs, to void any
vote or any giving of a written proxy or consent with respect to such security which has
occurred since such acquisition, except that no vote may be voided if the court finds
that to void such vote would not be in the interest of the depositors, beneficiaries,
creditors or shareholders of the bank, trust company, savings and loan association or
controlling person, or in the public interest.
B. An application for consent of the superintendent may be filed with the
superintendent by any person and shall be granted or denied within thirty days. In giving
consent, the superintendent may require such conditions as the superintendent deems
reasonable, necessary or otherwise in the public interest. Except as provided in section
41-1092.08, subsection H, the action of the superintendent shall be an order subject to
judicial review pursuant to title 12, chapter 7, article 6 if the complaint seeking
review is filed with the superior court in Maricopa county.
C. A civil action shall not be brought to void any vote pursuant to subsection A of
this section unless commenced within one year after the transaction which constituted a
violation of this article or any rule or order of the superintendent. 6-161 Suspension, removal or prohibition;hearing; notice
A. The superintendent, subject to the requirements of this article, may remove or
suspend from office or prohibit from participating in any of the affairs of a financial
institution or enterprise any director, officer, employee, agent or other person
participating in the conduct of the affairs of the financial institution or enterprise if
he finds that the director, officer, employee, agent or other person participating in the
conduct of the affairs of the financial institution or enterprise has engaged in any of
the following:
1. Any act, omission or practice in any business transaction which demonstrates
personal dishonesty or unfitness to continue in office or participate in the conduct of
the affairs of the financial institution or enterprise.
2. A wilful violation of an order of the superintendent.
3. Refusal to testify or produce records in response to a subpoena issued by the
superintendent.
4. A conviction of a crime, an essential element of which is fraud,
misrepresentation or deceit.
5. Any activity described in 12 United States Code section 1818(e)(1). For the
purposes of this paragraph, all references to the appropriate federal banking agency are
to the superintendent.
6. Any violation of this title relative to the financial institution or enterprise.
7. Any act, practice or transaction which in any way would jeopardize the safety
and soundness of the financial institution.
B. The superintendent may issue and serve upon the person involved, named as
respondent, a written notice of the superintendent's order of suspension or intention
to remove him from office or to prohibit him from further participation in any manner in
the conduct of the affairs of the financial institution or enterprise. A copy of the
notice shall also be served on the financial institution or enterprise. The notice shall
contain a statement of the alleged facts and fix a time and place at which a hearing
shall be held. The hearing shall be fixed for a date not earlier than thirty days nor
later than sixty days after the date of service of the notice, unless an earlier or a
later date is set for good cause shown. If the respondent without excusable neglect
fails to answer the charges, or if on the record made at the hearing the superintendent
finds that any of the charges specified in the notice has been established and
constitutes grounds for suspension or removal from office or prohibition from
participation in the conduct of the affairs of the financial institution or enterprise,
the superintendent may issue the appropriate order. The order becomes effective at the
time specified in the order after service on the respondent and remains effective unless
stayed, modified, terminated or set aside by action of the superintendent or a reviewing
court.
C. The resignation, termination of employment or participation, or separation of
the person involved does not affect the jurisdiction and authority of the superintendent
to issue any notice and proceed under this section against that person.
D. Notwithstanding section 6-129, an order issued pursuant to this section which
has become final is open to public inspection, except that the superintendent may
withhold from public inspection for such time as he considers necessary any information
which in his judgment the public welfare or the welfare of the financial institution
requires to be so withheld.
E. If a removal order has become final, a financial institution or enterprise may
not employ the person against whom it was issued without the prior written approval of
the superintendent.
6-162 Temporary prohibition; injunction
A. If the superintendent determines from the available facts that the conduct of
the respondent is likely to cause the financial institution or enterprise to suffer
substantial financial loss before an order can be issued under section 6-161, the
superintendent may issue a temporary order prohibiting the respondent from further
participation in any manner in the conduct of the affairs of the financial institution or
enterprise. The order shall contain a statement of the alleged facts which form the
basis of the order and becomes effective on service on the respondent. A copy of the
order shall also be served on the financial institution or enterprise. The order expires
by its terms within such time after entry, not to exceed twenty days, as the
superintendent fixes, unless the respondent consents to a longer period or within the
time fixed in the order it is extended by supplemental order issued by the superintendent
and served on the respondent and the financial institution or enterprise. On two days'
notice to the financial institution or enterprise the respondent may move that the
superintendent stay, dissolve or modify the order, and the superintendent shall proceed
to hear and determine such motion as expeditiously as justice requires.
B. The respondent served with a temporary order may apply to the superior court for
a stay of the order pending the completion of the administrative proceedings under
section 6-161, and the court has jurisdiction to stay the order if the superintendent has
refused to stay the order or to promptly consider the respondent's request for a stay.
6-163 Judicial review
Except as provided in section 41-1092.08, subsection H, any party to a proceeding
under this article may obtain judicial review of any final order pursuant to title 12,
chapter 7, article 6 other than an order issued with consent of the financial institution
or enterprise or other person concerned if the complaint seeking review is filed with the
superior court. The commencement of proceedings for judicial review shall not, unless
specifically ordered by the court, operate as a stay of the order. During the pendency of
the action for review the superintendent may not modify, terminate or set aside the order
except with permission of the court.
6-164 Attorney fees and expenses
In any proceeding instituted under this article in which a director or officer is a
party, and if the superintendent or court allows such party reasonable expenses and
attorney fees, the superintendent or the court may provide that such expenses and fees
shall be paid by the financial institution or enterprise from its assets with priority as
an expense of administration in receivership.
6-165 Enforcement of order
The superintendent may apply to the superior court for the enforcement of any
effective and outstanding order issued under this article, and the court has jurisdiction
to order and require compliance with the order. Except as otherwise provided in this
article, a court has jurisdiction to affect by injunction or otherwise the issuance or
enforcement of any order under this article or to review, modify, suspend, terminate or
set aside any such order.
|
|
|
|
