Any solvent bank may dissolve under the provisions of Alabama law relating to voluntary dissolution of a business corporation provided that the superintendent has given his written approval to such dissolution. The superintendent may require the directors to give bond in an amount fixed by him with surety or sureties to be approved by him, payable to the State of Alabama, for the protection of the superintendent and all other persons interested; provided, however, the amount of any such bond required shall not be greater than the total liability of the bank to its depositors and other creditors. Upon receipt of the written approval of the superintendent of the statutory dissolution procedures, it shall be unlawful for said bank to receive any further deposits.
Whenever it shall appear to the superintendent that any bank has violated its charter or any law of the state, or is conducting business in any unauthorized manner, or if its capital is impaired and not made good under the requirement of the superintendent within the required time, or if any such bank or an affiliate of such bank as defined in Section 5-3A-1 shall refuse to submit its papers, books and concerns to the inspection of the superintendent or any examiner, or if any officer thereof shall refuse to be examined on oath touching the conducting of any such bank, or if any such bank shall suspend payment of its obligations, or if from any examination the superintendent shall have reason to conclude that such bank is in an unsound or unsafe condition to transact the business for which it was organized, or that it is unsafe for it to continue business, or if any such bank shall neglect or refuse to observe any order of the superintendent directing or requiring the doing or cessation of any particular thing required to be done or not to be done by law, the superintendent may call a meeting of the Banking Board and submit to said board matters of default or misconduct in the affairs of the bank, of which the bank shall have notice and upon which the bank may be heard in person or by counsel, and if said board or a majority of said board so directs, the superintendent shall forthwith take possession of the property and business of such bank and retain such possession until such bank shall resume business or a receiver is appointed, as provided in this chapter.
If a majority of the directors of any bank so request in writing and the bank has violated any of the provisions of the banking laws or is insolvent, the superintendent may take charge of and liquidate the affairs of the bank as provided in this chapter under Section 5-8A-20 without calling a meeting of the Banking Board.
The circuit court of the county in which the principal place of business of the bank is located, sitting without a jury may upon application of the superintendent vacate the charter of a bank, liquidate a bank, or appoint a receiver if the directors of the bank knowingly violate or knowingly permit any of the officers, agents or employees of the bank to violate any of the provisions of this title. No civil action shall be instituted by any other person to vacate the charter of or liquidate or appoint a receiver for any bank except as authorized in Section 5-8A-24.
The superintendent shall not take possession of the property and business of any bank under the provisions of this chapter unless requested in writing to do so by a majority of the directors of the bank under Section 5-8A-21 or directed to do so by the Banking Board under Section 5-8A-20. On taking possession of the property and business of any such bank, the superintendent shall give notice of such fact to all banks in this state and other parties or corporations known to be holding or in possession of any assets of such bank.
The superintendent may under his hand and official seal appoint a receiver to liquidate and distribute the assets of any bank taken possession of by the superintendent under the provisions of this chapter, the certificate of appointment to be filed in the office of the superintendent and a certified copy in the office of the probate judge in the county in which the principal office of such bank is located. The receiver may be the Federal Deposit Insurance Corporation or any other agency or corporation created by the United States to act in such capacity or any person selected by the superintendent; provided, however, no examiner shall be appointed receiver of any bank whose books, papers and affairs he shall have examined within one year next preceding the appointment of such receiver. Any receiver shall apply for and shall be entitled to an ex parte order confirming his appointment as receiver from the receivership court.
Upon the appointment of a receiver to liquidate a bank, the possession of and title to all assets, business and property of such bank of every kind and nature shall pass to and vest in the receiver without the execution of any instruments of conveyance, assignment, transfer or endorsement.
In the event the superintendent takes charge of the business and affairs of any bank as authorized in this chapter or in the event a proceeding is instituted to forfeit the charter of any bank, the report of the examiner of such bank on file in the office of the superintendent or a copy thereof duly certified by the superintendent under his official seal, is admissible and may be used as evidence in any court, either by the superintendent, the Banking Board, any member or employee thereof, the receiver or the bank.
Whenever the superintendent or a receiver has taken charge of the property or business of any bank, such bank may at any time within 10 days after the taking of such possession apply to the receivership court to enjoin further proceedings by the receiver or superintendent; and the court, after citing the receiver and superintendent to show cause why further proceedings should not be enjoined and hearing the allegations and proof of the parties and determining the facts, may, upon the merits, dismiss such application or enjoin the receiver or superintendent from further proceedings and direct him to surrender such business and property to such bank. Any such application for injunction may be heard at any time in the discretion of the receivership court after one day's notice from the time of service of process on the receiver and superintendent. If application is made to enjoin the proceedings of the receiver, the superintendent may intervene and become a party to such action as a matter of right.
After the superintendent has taken possession of the property and business of a bank as provided in this chapter, no judgment lien, attachment lien, or any voluntary lien, except as provided in this chapter, shall attach to any assets of said bank nor shall the directors, officers, employees or agents of such bank have authority to act on behalf of said bank or to convey, transfer, assign, pledge, mortgage, or encumber any assets thereof.
After the superintendent has taken possession of a bank, the superintendent may permit such bank to resume business upon such conditions as may be approved by him, including an observance of all the requirements of law and making good of all deficits in the previous observance of law.
Upon taking possession of any of the property and business of any bank, the receiver may collect moneys due to such bank and do such other acts as are necessary to conserve its assets and business, and shall proceed to liquidate the affairs thereof as provided in this chapter. The receiver shall collect all debts due and claims belonging to the bank, whether in this state or in any other state, and may proceed in courts of competent jurisdiction to enforce said claims in this state and in other states. 'Claims' shall include any right of action against any surety, fidelity or insurance company, auditor or any past or present officer or director of such bank for mismanagement, violations of laws or regulations or other breach of duty. It shall be the duty of the receiver or his duly authorized agent to satisfy on the proper record all mortgages, judgments, security interests, or other liens held or owned by any insolvent bank that have been paid or satisfied.
Whenever any bank shall have been closed as provided under the laws of this state, and the Federal Deposit Insurance Corporation shall pay or make available for payment the insured deposit liabilities of such closed institution, the corporation, whether or not it shall have become receiver or liquidator of such closed bank, shall be subrogated to all rights against such closed bank of the owners of such deposits in the same manner and to the same extent as subrogation of the corporation is now or may be hereafter provided for by federal law in the case of the closing of a national bank; provided, that the rights of depositors and other creditors of such closed bank shall be determined in accordance with the applicable provisions of the laws of this state.
The receiver, by making application to the receivership court, may procure an order to sell or compound all bad or doubtful debts and on like order may sell all real and personal property of such bank on such terms as the court shall direct; provided, however, that the receiver shall have the right to ask for a blanket order from the receivership court for the settlement of all debts, claims of any and all nature, and deposits and for the sale of real and personal property wherein no single item exceeds the value of $10,000.00. In all or any of such court proceedings, the bank shall be made a party by proper service of process issued from the court, and the hearing of any such application or petition of the superintendent may be had at any time after the bank has had five days' notice of the application; provided, however, the court may ex parte approve a purchase and assumption transaction as provided for in 12 U.S.C. §1823(e) or a similar transaction authorized by federal law and provided further if notice of the hearing of said application is waived or the allegation of said application is admitted by the bank, no further proof will be required of the allegations of said application and the order may be forthwith granted by the court.
(a) The receiver is authorized to borrow money and pledge the assets of a bank in liquidation for protecting and preserving its assets, for paying secured claims, for aiding in the reorganization or reopening of such bank or for making distribution to depositors and creditors when, in the judgment of the receiver, the borrowing of such funds would be to the interest of the depositors and creditors.
(b) For any loan negotiated under the authority vested by this article, the receiver may execute a note therefor, renew the same from time to time and do all things he considers necessary until the same has been paid. Such note or renewal or any mortgage or contract to be executed for the purpose hereof shall be signed by giving the name of the bank, followed by the words: 'In liquidation,' 'By ________ (the name of the receiver) receiver.' Any note or other contract executed for the purpose hereof shall be treated as the obligation of the bank and the holder thereof shall have the character of a creditor of the bank for the amount of any deficiency in the security furnished.
(c) To secure any such loan, the receiver may pledge, mortgage, or grant a security interest in, by appropriate contracts or writings, any or all of the assets, real or personal, in his possession belonging to the bank for whose benefit the loan shall be obtained.
(d) Before closing the proposal to procure the loan, pledge, mortgage, or grant of a security interest in assets under subsections (a) and (c), the same shall be presented to the receivership court by petition, giving the court full information concerning desirability of making the loan and granting a security and such other matters as the receiver may desire, and the court may pass upon such petition with or without notice to the former directors or chief executive officer of the bank involved or to other parties in interest.
With respect to any bank which is now or may hereafter be closed as provided under the laws of this state, the receiver of such bank may borrow from the Federal Deposit Insurance Corporation and furnish any part or all of the assets of said bank to said corporation as security for a loan from same; provided, that where said corporation is acting as such receiver, the order of the receivership court shall be first obtained approving such loan. The receiver, upon the order of the receivership court which may be ex parte, may sell to said corporation any part or all of the assets of such bank. The provisions of this section shall not be construed to limit the power of the receivers to pledge or sell assets in accordance with any existing law.
The receiver shall assume or reject an executory contract, including an unexpired lease of real or personal property, within 60 days after appointment, but the receivership court may for cause shown extend or reduce the time. Any such contract or lease not assumed or rejected within that time shall be deemed to be rejected. The receiver shall file within 60 days of his appointment, a statement under oath showing which, if any, of the contracts of the bank are executory in whole or in part, including unexpired leases of real or personal property, and which, if any, have been rejected by the receiver. Unless a lease of real or personal property expressly otherwise provides, a rejection of the lease or of any covenant therein by the receiver of the lessor does not deprive the lessee of his estate. A general covenant or condition in a lease that it shall not be assigned shall not be construed to prevent the receiver from assuming the same at his election and subsequently assigning the same; but an express covenant that an assignment by operation of law or the liquidation of a specified party thereto, or of either party shall terminate the lease or give the other party an election to terminate the same is enforceable. A receiver who elects to assume a contract or lease of the bank and who subsequently with approval of the receivership court and upon such terms and conditions as the receivership court may fix after hearing upon notice to the other party to the contract or lease, assigns such contract or lease to a third person, is not liable for breaches occurring after the assignment.
The receiver may employ such counsel and procure such expert assistants and advice as may be necessary in the liquidation and distribution of the assets of such bank and may retain such of the officers or employees of such bank as he may deem necessary. The receiver and such assistants as will have charge of any of the assets of the bank may be required to post such security for the faithful discharge of their duties as the receivership court may deem proper. The compensation of assistants and other employees and all expenses of supervision and liquidation shall be fixed by the receiver subject to the approval of the receivership court on notice to such bank.
When the compensation for the various parties aiding in the liquidation is fixed and approved, the same shall be paid out of the funds of such bank in the hands of the receiver and shall be a prior charge and lien on the assets of such bank.
The money collected by the receiver shall be, from time to time, deposited in one or more banks in this state.
The receiver shall cause notice to be given by advertisement in such newspaper as he may direct, once a week for six consecutive weeks, calling all persons who may have claims, but not including deposits or certificates of deposit shown by the books of the bank which shall be a prima facie proven claim against the bank, against such bank to present the same to the receiver and make legal proof thereof at a place and within a time to be specified in the notice, not less than 90 days from the day of the first publication of the notice. The receiver shall mail a similar notice to all persons whose names appear as creditors upon the books of the bank.
In addition to any other laws of this state or of the United States granting priority, any draft or cashier's check issued and drawn against actual existing value by any bank prior to its failure or closing and given in payment of clearings and any money paid in the usual course of business to any bank in payment of a draft for the bona fide transfer of funds shall be a preferred claim against the assets of the bank, irrespective of whether the fund representing such item or items can be traced and identified as part of such assets or has been intermingled with or converted into other assets of such failed bank.
Upon taking possession of the property and assets of such bank, the receiver shall make an inventory of the assets of such bank in duplicate, and upon expiration of time for rejection of claims, make a full and complete list of claims in duplicate, specifying which claims have been rejected by him. A copy of the inventory and a copy of this list of claims shall be filed in the office of the receiver and one copy of each shall be filed in the office of the clerk of the receivership court. Such inventory and list of claims shall be open at all reasonable times to inspection.
Objections to any claim or deposit not rejected by the receiver may be made by any party interested by filing a copy of such objections with the clerk of the receivership court and with the receiver, who shall present the same to the receivership court before the time of the next application to declare a dividend. The receivership court may make proper provisions for unproven or unclaimed deposits.
If the receiver doubts the validity of any claims or deposits, he may reject the same and serve notice of such rejection upon the claimant or depositor, either by mail or personally, and an affidavit of service of such notice, which shall be prima facie evidence thereof, shall be filed in the office of the receiver.
Any action upon a claim so rejected must be brought by filing a complaint in the receivership court by the claimant within six months after service of such notice or the same shall be barred. Claims presented and allowed after the expiration of the time fixed in the notice to creditors shall be entitled to share in the distribution only to the extent of the assets in the hands of the receiver at the time such claims are filed, without allowance for previous distribution.
At any time after the expiration of the date fixed for the presentation of claims, the receiver may, out of the funds remaining in his hands after the payment of expenses, declare and pay one or more dividends to creditors, and after the expiration of one year from the first publication of notice to the creditors to present claims, he may declare and pay a final dividend, such dividend to be paid to such persons and in such amounts and upon such notice as may be directed by the receivership court.
Whenever the receiver shall have paid to each and every depositor and creditor of such bank whose claim or claims as such creditor or depositor shall have been duly proven and allowed the full amount of such claims and shall have made proper provision for the unclaimed and unpaid deposits or dividends the receiver shall make application for final settlement including expenses of liquidation, to be approved by the receivership court and shall distribute the balance of any assets remaining ratably to the stockholders. Creditors shall not receive interest after the date of taking of possession by the superintendent. The receiver shall in said final settlement order be directed to file in the office of the judge of probate of the county in which the principal place of business of the bank was located and in the office of Secretary of State a certificate of dissolution and the written approval of the superintendent to such dissolution; and said bank shall thereupon be dissolved. Any unclaimed funds in the hands of the receiver shall be transmitted by him to the State Treasurer to be held as unclaimed property under the provisions of Sections 35-12-20 through 35-12-48.
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