State Codes and Statutes

Statutes > California > Fin > 18415-18425.17

FINANCIAL CODE
SECTION 18415-18425.17



18415.  The commissioner may take possession of the property and
business of any industrial loan company and retain possession until
the company resumes business or its affairs are liquidated if any of
the following grounds exist:
   (a) The capital of an industrial loan company is impaired.
   (b) An industrial loan company has violated its articles of
incorporation or any law of this state.
   (c) An industrial loan company is conducting its business in an
unsafe or unauthorized manner.
   (d) An industrial loan company refuses to submit its books, papers
and affairs to the inspection of any examiner.
   (e) An officer of any industrial loan company refuses to be
examined upon oath touching the concerns of such industrial loan
company.
   (f) An industrial loan company has suspended payment of its
obligations.
   (g) An industrial loan company is in such condition that it is
unsound or unsafe for it to transact business.
   (h) An industrial loan company neglects or refuses to observe any
order of the commissioner made pursuant to this division, unless the
enforcement of that order is restrained in a proceeding brought by
the industrial loan company.
   (i) An industrial loan company (1) fails to become and continue as
either a member of the Federal Deposit Insurance Corporation or a
member of the Thrift Guaranty Corporation of California in accordance
with Chapter 7 (commencing with Section 18475), (2) has its right to
participate in the Thrift Guaranty Corporation of California
suspended or revoked pursuant to subdivision (a) of Section 18496 and
it is not a member of the Federal Deposit Insurance Corporation, or
(3) fails to pay any assessment levied pursuant thereto within the
time specified.
   (j) A member industrial loan company of Guaranty Corporation
refuses to permit Guaranty Corporation, its appointed certified
public accountant or public accountant, or specialized committees or
employees to fulfill their duties under Section 18496.
   (k) An industrial loan company has sold or issued investment
certificates in violation of the provisions of this division.
   (l) An industrial loan company has failed to maintain in effect a
bond required under the provisions of this division.
   (m) Any fact or condition exists which, if it had existed at the
time of the original application for authority to organize and
establish a corporation to engage in the industrial loan business
reasonably would have warranted the commissioner in disapproving the
application.
   (n) An application for membership in the Federal Deposit Insurance
Corporation has not been filed with and accepted by the Federal
Deposit Insurance Corporation on or before January 15, 1990.
   If the commissioner takes possession of the business and property
of an industrial loan company, the company, with the consent of the
commissioner, may resume business upon prescribed conditions.




18415.1.  Whenever the commissioner has taken possession of the
property and business of an industrial loan company, that industrial
loan company, within 10 days after the taking, if it deems itself
aggrieved thereby, may apply to the superior court in the county in
which the head office of the industrial loan company is located to
enjoin further proceedings. The commissioner may exercise all powers
granted by this article during the 10-day period after taking
possession of the property and business of the industrial loan
company. The court, after citing the commissioner to show cause why
further proceedings should not be enjoined and after a hearing and a
determination of the facts upon the merits may dismiss the
application or enjoin the commissioner from further proceedings and
direct the commissioner to surrender the property and business to the
industrial loan company, or make such further order as may be just.



18415.2.  An appeal may be taken from the judgment of the court by
the commissioner or by the industrial loan company in the manner
provided by law for appeals from the judgment of a superior court to
the court of appeal.


18415.3.  (a) Whenever the net worth of an industrial loan company,
exclusive of its good will, is less than 90 percent of the aggregate
sum of its outstanding investment certificates, exclusive of those
hypothecated with the company issuing them, divided by the fraction
that is its investment certificates ratio permitted by the
commissioner, the commissioner shall by written order direct the
company to make good the alleged deficiency of net worth. Pursuant to
the commissioner's orders, the company's net worth shall be at least
100 percent of the aggregate sum of its outstanding investment
certificates, exclusive of those hypothecated with the company
issuing them, divided by the fraction that is its investment
certificates ratio permitted by the commissioner.
   (b) If the company fails to cure the alleged deficiency of net
worth within the commissioner's specified time, not to exceed 120
days, the commissioner may take possession of the company's property
and business. If the alleged deficiency is not cured within 120 days
of the order, the commissioner shall take possession of the company's
property and business.



18415.4.  The commissioner may also, upon the request of the board
of directors of a company, take possession of the property and
business of a company and as conservator, take such action as the
commissioner deems proper.


18415.5.  Upon taking possession of the property and business of any
industrial loan company, the commissioner shall give notice of that
fact to all persons holding or having in their possession any assets
of the company. The notice required by this section shall not be
deemed to be a prerequisite to the taking of possession of the
property and business of the industrial loan company. No person
knowing of the taking, or who has been notified thereof, shall have a
lien or charge upon any assets of the company for any payment,
advance or clearance thereafter made, or for any liability thereafter
incurred.
   Notice is deemed given when the commissioner has either made
personal service of the notice, or mailed the notice to the person by
certified mail.



18415.6.  Any officer, agent, employee, director, or stockholder of
a company who refuses to comply with the demand for possession issued
under Section 18415 shall be guilty of a misdemeanor punishable by a
fine of not more than one thousand dollars ($1,000) or imprisonment
not exceeding one year or by both such fine and imprisonment.




18415.7.  On demand of the commissioner, it shall be the duty of the
sheriff of any county of the state, and of the police department of
any municipal corporation therein, to furnish the commissioner with
deputies, patrolmen, or officers as may be necessary to assist the
commissioner in making and enforcing any seizure under Section 18415.




18415.8.  Upon taking possession of the property and business of any
company, the superior court for the county in which the head office
of the company is located shall have exclusive original jurisdiction
of all proceedings relating thereto and of any action or other
proceedings brought under the provisions of this chapter. All papers
relating to the taking of possession, including copies of the
certificate of appointment of any special deputy, shall be filed and
be made a part of the record of the proceeding within 45 days of the
date of taking possession. All papers filed with the superior court,
including inventories required to be filed, shall be made a part of
the record of the proceeding without the payment of any additional
fees therefor.



18415.9.  At any time after the order taking possession issued under
Section 18415 has been filed with the court, the commissioner may
remove the principal office of the person proceeded against to the
City and County of San Francisco or to the City of Los Angeles. In
the event of removal, the court where the proceeding was commenced
shall, upon the application of the commissioner, direct the superior
court clerk to transmit all of the papers filed therein with that
clerk to the Superior Court Clerk of the City and County of San
Francisco or of the County of Los Angeles as the case may require.
The proceeding shall thereafter be conducted in the same manner as
though it had been commenced in the county to which it had been
transferred.



18415.10.  The commissioner may, at any time, examine under oath any
officer, director, agent, employee or stockholder of a company to
determine whether or not all property and assets have been
transferred or delivered to the commissioner's possession.




18415.11.  Upon taking possession of the property and business of
any company, the commissioner has authority and the duty to collect
all moneys due to the company and to do such other acts as are
necessary or expedient to collect, conserve, or protect its assets,
property and business. The commissioner shall also proceed to
conserve or liquidate the affairs thereof as provided in this
chapter.


18415.12.  The commissioner may file a petition with the court and
the court shall issue such injunctions or orders, as may be deemed
necessary, to prevent any of the following occurrences:
   (a) Interference with the commissioner or the proceeding.
   (b) The institution of any actions or proceedings, or the
prosecution of any actions or proceedings already commenced.
   (c) Waste of assets of the entity.
   (d) The obtaining of preferences, judgments, attachments or other
liens against the company or its assets.
   (e) The making of any levy against the company or its assets.
   (f) The sale or deed for nonpayment of taxes or assessments levied
by any taxing agency of any of the following:
   (1) Property owned by the company.
   (2) Property upon which the company holds an encumbrance.
   (3) Property upon which the company has prior thereto commenced an
action to foreclose any deed of trust or mortgage or has exercised
the power of sale under any trust deed or mortgage which sale or
foreclosure proceedings have not yet been completed or upon which no
trustee's deed or judgment of court or sheriff's certificate of sale
has been issued.
   "Taxing agency," as used in this section, has the same meaning as
defined in Section 121 of the Revenue and Taxation Code. The
injunctions or orders authorized by this subdivision may be modified,
dissolved, or rescinded by the court on motion of the commissioner,
the Controller, or the person charged with the collection of taxes or
assessments on such property. The recording in the office of the
county recorder of any county in the state of an order or injunction
issued pursuant to this section, shall constitute service of the
order or injunction upon any taxing agency with respect to property
or interest therein located in such county.



18415.13.  After the taking of possession of the property and
business of any company, the commissioner may terminate or adopt any
executory contract to which the company may be a party, including
leases of real or personal property. The termination or adoption
shall be made within six months after obtaining knowledge of the
existence of the contract or lease. Any provision in the contract or
lease which provides for damages or cancellation fees upon
termination shall not be binding on the commissioner or the company
seized. The commissioner and the company shall only be liable for
actual damages and in no event in excess of one thousand dollars
($1,000). Any claim must be filed within 30 days of the date of the
termination.



18415.14.  The commissioner may proceed against any debtor or
alleged debtor by way of summary procedure or by order to show cause
issued by the court upon application by the commissioner.



18415.15.  The commissioner may make examinations of the seized
company and review the activities of any conservator or liquidator.



18415.16.  The actual cost of any examination, investigation or
services, including the actual amount of salary or other compensation
paid to the persons making the examination, investigation or
rendering services and the overhead costs in connection therewith, as
fixed by the commissioner, shall be paid out of the assets of the
company.



18415.17.  The determination by the commissioner to liquidate a
company, evidenced by filing written notice of the determination with
the court, operates to stay or dissolve all actions or attachments
instituted or levied within 90 days next preceding the taking of
possession of the company by the commissioner, and pending the
process of liquidation, no attachment or execution shall be levied or
lien created upon any of the property of the company.



18415.18.  Upon taking possession of the property, and business of a
company in any proceeding under this article, the commissioner shall
have the power to do all of the following:
   (a) Appoint one or more special deputy commissioners as his or her
agent or agents with the powers specified in the certificate of
appointment to assist in the duty of conservation or of liquidation
and distribution.
   (b) Employ the Attorney General as counsel or employ private
counsel as may be deemed necessary to assist the commissioner in the
performance of his or her duties under this chapter. Appointment of
private counsel shall be made only with the consent of the Attorney
General. The compensation of that counsel shall be fixed by the
commissioner, subject to the approval of the court.
   (c) Set the compensation of a special deputy commissioner.
   (d) Require from each special deputy commissioner and from each
assistant such security for the faithful performance of their duties
as the commissioner may deem proper.



18415.19.  All expenses of taking possession of, conserving,
conducting, liquidating, disposing of or otherwise dealing with the
business and property of any company under this article shall be paid
out of the assets of that company. Those expenses shall include,
among other things, the compensation of special deputy commissioners,
clerks and assistants and the actual cost of any services
attributable to the conservatorship or liquidation performed by the
commissioner and staff, including the actual amount of salary or
compensation paid to the person performing the services and overhead
costs in connection therewith as fixed by the commissioner.




18415.21.  Any transaction occurring within six months of the date
of taking possession shall be voidable by the conservator or
liquidator if the transaction has the effect of giving to, or
enabling any creditor of, the company, any affiliate of the company,
any officer, director, stockholder, employee or any relative thereof,
to obtain a preference over any other creditor of the company.



18415.22.  No obligation may be purchased or discounted under any
agreement between the company and any person involving the purchase
or discount of obligation from the person, with or without recourse,
from the moment of taking possession pursuant to Section 18415. Any
guarantees, recourse or repurchase agreements given at the time of
purchase, or discount of any obligation prior to the date of taking
possession, shall continue to be binding on the person. Any reserves,
withholds or other security held by the company under the terms of
the agreement shall be considered liabilities of the company in the
general creditor classification and may not be used as offset against
any obligation purchased or discounted under the agreement. No
distribution of assets shall be made on these liabilities until the
obligations purchased or discounted under the agreement have been
satisfied.
   In case of sale of the obligations by the liquidator, the
reserves, withholds or other security shall remain as a liability to
be paid off in the normal course of liquidation.



18415.23.  No attachment or execution shall be issued against the
property of any company before final judgment in any action or
proceeding in any court.


18420.  The commissioner, as conservator or liquidator, after taking
possession of the company, shall, in his or her name, in the name of
the company, in the name of both, or otherwise, have authority to do
all of the following:
   (a) Collect all obligations and money due the company.
   (b) Exercise and possess all the rights, powers and privileges of
the company, its officers and directors.
   (c) Institute, prosecute, maintain, defend, intervene, and
otherwise participate in any and all actions, suits, or other legal
proceedings by and against the conservator or liquidator or company,
or in which the conservator, the company or its creditors or debtors,
or any of them, have an interest, and in every way to represent the
company, its creditors, and debtors.
   (d) Execute, acknowledge, and deliver any and all deeds,
contracts, leases, assignments, bills of sale, releases, extensions,
satisfactions, and other instruments necessary or proper for any
purposes.
   (e) Be the custodian of all moneys collected by the commissioner
or coming into his or her possession in the course of any proceeding
under this chapter, but he or she may deposit those moneys, or any
part thereof, in a bank insured by the Federal Deposit Insurance
Corporation.
   (f) Invest or reinvest such portions of funds and assets of the
company, in a manner as he or she may deem suitable for the best
interests of the creditors of the company.
   (g) To revise, refinance, extend, or settle any loan or obligation
upon those terms and conditions as he or she may deem to be most
advantageous to the company.
   (h) To sell, compound, compromise or assign for the purpose of
collection upon those terms and conditions he or she deems best, any
bad or doubtful debts due the company.
   (i) To compound, compromise, or in any manner negotiate
settlements of claims against the company upon those terms and
conditions as he or she shall deem to be most advantageous to the
company.
   (j) To sell, acquire, hypothecate, encumber, lease, improve,
abandon, or otherwise dispose of or deal with any real or personal
property which has come into ownership of the company by way of
repossession, foreclosure, execution, suit or by other such means on
a basis of reasonable market value, without notice, for cash, on
terms, or upon such other terms and conditions as he or she may deem
proper.
   (k) To settle, compromise, or obtain the release of, for cash or
other consideration, claims and demands against the company or the
conservator.
   (l) To sell for cash or on terms, exchange, or otherwise dispose
of, in whole or in part, any or all the assets and property of the
company, real, personal, and mixed, tangible and intangible, of any
nature.
   (m) Execute, acknowledge, and deliver any and all deeds,
contracts, leases, assignments, bills of sale, releases, extensions,
satisfactions, and any other instruments necessary or proper for any
purposes, including, but not limited to, the effectuation,
termination, or modification of any sale, lease, or transfer of real,
personal, or mixed property, or that shall be necessary or proper to
liquidate or carry on the business of the company. Any deed or other
instrument executed pursuant to the authority hereby given shall be
as valid and effectual for all purposes as if it had been executed as
the act and deed of the company.
   (n) Pay out and expend such sums as the commissioner deems
necessary or advisable including the following:
   (1) To pay off or discharge any taxes, assessments, liens, claims,
or charges of any nature against the company, the conservator or
liquidator, any asset or property of any nature of the company, or
upon any asset or property on which the company or conservator or
liquidator has an interest of a value of any nature.
   (2) For or in connection with the preservation, maintenance,
conservation, protection, remodeling, repair, rehabilitation, or
improvement of any asset or property of any nature of the company.
   (3) To pay all costs and expenses of the conservatorship or
liquidation and all costs of carrying out or exercising the
commissioner's rights, powers, privileges, and duties as conservator.
   (4) To pay valid creditor obligations, interest owed on debts,
debts incurred during conservatorship or liquidation and all other
debts of the company or conservatorship or liquidation of any nature.
   (5) To pay all costs and expenses in the operation of the
conservatorship or liquidation of the company.
   (o) Do such things, and have such rights, powers, privileges,
immunities and duties, whether or not otherwise granted in this
chapter, as shall be authorized, directed, conferred, or imposed from
time to time in specific cases by order of the court.



18420.1.  No transaction involving real or personal property,
investment or reinvestment of funds or assets, or settlement or
compromise of pending lawsuits shall be made without first obtaining
permission of the court, and then only in accordance with such terms
as the court may prescribe, when either of the following exist:
   (a) The principal sum of any obligation due the company or
settlement or compromise of a pending lawsuit exceeds the sum of
fifteen thousand dollars ($15,000).
   (b) The market value of any real or personal property, except
obligations due the company, exceeds the sum of ten thousand dollars
($10,000).


18420.2.  The commissioner may, with ex parte approval of the court,
sell all or any part of the company's assets to another industrial
loan company, to a bank, to a savings and loan association, to
Guaranty Corporation, or to an instrumentality of the United States
government. In like manner, the commissioner may borrow from Guaranty
Corporation, an instrumentality of the United States government, or
a private insurer which insures or guarantees the company's
investment certificates, any amount necessary to facilitate the
assumption of investment certificate liabilities by a newly chartered
or existing industrial loan company, assigning any part or all of
the assets of the company as security for that loan.



18420.5.  The commissioner may appoint a person to act as
conservator or liquidator of the company. The person appointed may be
Thrift Guaranty Corporation of California. If the company's
outstanding thrift obligations are insured by an instrumentality of
the United States government, the commissioner may appoint that
instrumentality to act as conservator or liquidator of the company.
Subject to the other provisions of this division, a conservator or
liquidator, while in possession of the property and business of a
company, has the same powers and rights and is subject to the same
duties and obligations as the commissioner while in possession of the
property and business of a company. During such time, the rights of
the company and of all persons with respect thereto, subject to the
other provisions of this chapter, are the same as if the commissioner
had taken possession of such properties and business, except that
the commissioner may limit those powers and rights as he or she may
deem necessary.


18420.6.  The commissioner shall have the authority to terminate the
appointment of a conservator or liquidator whenever the commissioner
deems it in the best interest of the company, its creditors, and
investors. The commissioner shall file a copy of the notice of
termination with the court.



18420.7.  The commissioner may require a conservator or liquidator
to provide such bond as the commissioner deems proper. The
conservator or liquidator shall receive a salary, fixed by the
commissioner, in an amount no greater than that which would be paid
by the commissioner to a special deputy commissioner in charge of the
liquidation of the company.



18425.  If at any time after taking possession of the property and
business of a company it shall appear to the commissioner that it
would be futile to proceed as conservator with the conduct of the
business of the company, the commissioner may order the company to be
liquidated. A copy of the liquidation order shall be filed with the
clerk of the superior court.



18425.1.  The liquidator shall cause notice to be given by
publication for four successive weeks in a newspaper of general
circulation at or near the principal place of business in the state
of the company, to all persons having claims against the company,
other than investment certificate holders, whether or not an action
is pending to enforce any claim for demand, requiring them to present
and file their claims and make legal proof thereof at a place and
within a time designated in the notice. The time shall not be less
than 90 days after the first publication of the notice. The notice
shall also state that all claims other than those of investment
certificate holders appearing upon the books or records of the
company and any claims, whether or not an action is pending to
enforce any such claim or demand, shall be forever barred if not
filed within the time designated. The liquidator shall also mail a
similar notice to all persons whose names appear as creditors upon
the books of the company and any person who has an action pending to
enforce a claim or demand whose address appears upon the books or
records of the company and shall enclose therewith a printed form or
notice of claim.



18425.2.  All claims, demands, or causes of action of creditors, and
persons other than investors against any property owned or held by
it in trust, or otherwise, must be presented to the liquidator in
writing, verified by the claimant, or someone on his or her behalf,
within the period specified in the notice for the presentation of
claims, whether or not an action is pending to enforce any such claim
or demand. The liquidator shall not approve any claim not so
presented, and any such claim, demand, or cause of action not so
presented is forever barred.



18425.3.  If the liquidator doubts the validity of any claim, the
liquidator may reject the claim and serve notice of rejection upon
the claimant either by certified mail or personally. A notice of
rejection given by mail, addressed to the claimant at the address set
forth in the claim, shall constitute sufficient notice of the
rejection. Any action upon a claim so rejected must be brought within
30 days after the mailing of the notice or personal service of the
notice in the court in which the liquidation proceeding is pending
for an order to show cause why the claim should not be allowed.
Failure to bring such action within 30 days to enforce the payment of
or establish any rejected claim shall forever bar any such action.




18425.4.  A claim shall set forth, under oath, on the form
prescribed by the commissioner, all of the following:
   (a) The particulars of the claim, and the consideration for the
claim.
   (b) Whether the claim is secured or unsecured, and, if secured,
the nature and amount of the security.
   (c) The payments, if any, made thereon.
   (d) That the sum claimed is justly owing from such person to the
claimant.
   (e) That there is no offset to the claim.
   (f) Such other data or supporting documents as the liquidator
requires.


18425.5.  When an investment certificate holder is also a debtor,
the liquidator may offset any balance due the investment certificate
holder against the debt and the interest due on that debt up to the
date of offset, in an amount not to exceed the amount of the debt or
the amount of the thrift obligation guaranteed by the Thrift Guaranty
Corporation of California, whichever is less.



18425.6.  The amount of a claim of an investment certificate holder
shall be the amount which the investment certificate holder would
have been entitled to withdraw as of the date of taking possession,
pursuant to Section 18415, plus interest thereon accrued to that
date, without regard to whether the account is subject to any pledge.
In the case of an account with a fixed or minimum term or a
qualifying or notice period that has not expired as of the date of
taking possession, interest shall be computed as if the account had
been withdrawn on that date without penalty or reduction in interest.
   The liquidator shall give notice to each investment certificate
holder of the amount of his or her claim and the investment
certificate holder shall not be required to file a claim unless he or
she disputes the amount of the liquidator's determination.



18425.7.  When the time fixed for the presentation of claims has
expired, the liquidator shall make in duplicate a full and complete
list of all claims presented, including and specifying those claims
that have been rejected by the liquidator, and a list of all claims
of investment certificate holders as shown by the books or records of
the company, and shall file one copy of the list in the commissioner'
s office and one with the clerk of the superior court in which the
liquidation proceedings are being held. Before each application to
the court for leave to declare a dividend, the liquidator shall file
a supplemental list of claims presented since the last preceding list
was filed, including and specifying the claims as have been rejected
by the liquidator. The list of claims and of claims of investment
certificate holders as shown by the books or records of the company
shall be open for inspection at all reasonable times.



18425.8.  Objections to any claim not rejected by the liquidator may
be made by any person interested by filing his or her objections, in
writing, with the liquidator, who shall present the objections to
the court. The court shall dispose of the objections or may order
reference for that purpose, and should the objections to any claim be
sustained by the court or by the referee, that claim shall not be
allowed by the liquidator until the claimant has established his or
her claim by judgment. Any objections to a claim shall be filed
within 60 days from the date of filing of the schedule of claims as
required by this article with the court or be forever barred.



18425.9.  The liquidator, with the approval of the court, may pay
one or more dividends to investment certificate holders prior to the
expiration of the time for filing claims. After the time for filing
of claims has elapsed, the liquidator, after obtaining approval of
the court, may pay one or more dividends upon all approved claims out
of the funds remaining in the liquidator's possession after the
payment of expenses and after setting aside an amount to pay
creditors whose claims have been rejected and whose time for filing
an application to show cause under this article has not yet elapsed
or whose application is still pending. At any time after the
expiration of one year from the date of the first publication of
notice of creditors, and with court approval, the liquidator may pay
a final distribution which shall consist of the remaining funds
available for distribution, being distributed pro rata to all
approved creditor claims.


18425.10.  (a) Claims allowed in a proceeding under this article
shall be given preference in the following order:
   (1) All costs and expenses of administration of conservatorship
and liquidation.
   (2) Taxes due to the State of California.
   (3) Claims having preference by the laws of the United States and
by laws of this state.
   (4) All claims of creditors, including contractual claims for
interest to the date of payment, whose claims are fully secured.
   (5) Claims of investment certificate holders.
   (6) Claims of general creditors.
   (7) Claims on obligations subordinated to the claims of investment
certificate holders and general creditors.
   Paragraphs (5) and (6) apply only in liquidation proceedings,
where the commissioner has taken possession of the property and
business of the company on or after the effective date of this
section, and paragraph (6) shall apply only with respect to persons
who become general creditors on or after that date. It is the intent
of the Legislature that no change in the law contained in this
section shall be construed to affect the rights and obligations of
parties with regard to transactions occurring prior to the effective
date of this section. It is the intent of the Legislature that the
rights and obligations of parties existing prior to the effective
date of this section shall be determined by the law in effect prior
to the effective date of this section and without application of
changes in the law effected by this section.
   (b) All approved claims shall bear interest at the rate provided
by law or judgments from the date that the commissioner takes
possession of the property and business of the company, to the extent
funds are available to pay such interest, otherwise interest shall
be prorated.
   Interest shall be given the same preference as the claim on which
it is based, but no interest on any claim shall be paid until all
claims within the same class have received the full principal amount
of the claim.
   (c) Any funds remaining shall be returned to the stockholders of
the company pursuant to the provisions of this article.



18425.11.  Whenever the commissioner determines to liquidate a
company, the commissioner shall cause an inventory of all the assets
of the company to be made in duplicate, file the original with the
court, and file the duplicate in the commissioner's office.




18425.12.  If it appears improbable that anything can be realized
from any property of the company and that the cost of maintaining,
preserving, or protecting the property would probably be lost, the
court may direct the liquidator to abandon the property.




18425.13.  If a purchaser of any property or any bad or doubtful
debt or claim of a company cannot be obtained and it appears
improbable that recovery thereon can be had, and that the cost of
action to enforce collection of the same would probably be lost, the
superior court may direct that suit on the debt or claim need not be
brought.



18425.14.  When the liquidator has fully liquidated all claims other
than claims of stockholders, made due provision for any and all
known but unclaimed liabilities, excepting claims of stockholders,
and paid all expenses of liquidation, the liquidator may file an
application for an order for the liquidation of a domestic
corporation, or at any time thereafter, the commissioner may apply
for, and the court shall make, an order dissolving the corporation.



18425.15.  Upon the payment of a final dividend in liquidation, the
commissioner shall prepare and file with the court a full and final
statement of the liquidation, including a summary of the receipts and
disbursements, and a duplicate of the statement shall be filed in
the office of the commissioner. After hearing and approval by the
court, the liquidation shall be closed.



18425.16.  In making its order approving the commissioner's final
statement of the liquidation of the company, the court shall
determine the amounts of the liquidating dividends to which claimants
are entitled but which then remain unpaid or unclaimed in the hands
of the commissioner. The order of the court shall direct the
commissioner to deposit those amounts with the Treasurer. All amounts
so deposited shall be deemed to be deposited in the State Treasury
under the provisions of Chapter 7 (commencing with Section 1500) of
Title 10 of Part 3 of the Code of Civil Procedure, and shall be
subject to claim or disposition as provided in that chapter.




18425.17.  The order of the court approving the final statement on
liquidation shall provide for the destruction or other disposition of
the books and records of the company or pertaining to the
liquidation of the company, and the court may declare the company
dissolved as a corporation. The liquidator shall file a copy of the
order of dissolution with the Secretary of State.


State Codes and Statutes

Statutes > California > Fin > 18415-18425.17

FINANCIAL CODE
SECTION 18415-18425.17



18415.  The commissioner may take possession of the property and
business of any industrial loan company and retain possession until
the company resumes business or its affairs are liquidated if any of
the following grounds exist:
   (a) The capital of an industrial loan company is impaired.
   (b) An industrial loan company has violated its articles of
incorporation or any law of this state.
   (c) An industrial loan company is conducting its business in an
unsafe or unauthorized manner.
   (d) An industrial loan company refuses to submit its books, papers
and affairs to the inspection of any examiner.
   (e) An officer of any industrial loan company refuses to be
examined upon oath touching the concerns of such industrial loan
company.
   (f) An industrial loan company has suspended payment of its
obligations.
   (g) An industrial loan company is in such condition that it is
unsound or unsafe for it to transact business.
   (h) An industrial loan company neglects or refuses to observe any
order of the commissioner made pursuant to this division, unless the
enforcement of that order is restrained in a proceeding brought by
the industrial loan company.
   (i) An industrial loan company (1) fails to become and continue as
either a member of the Federal Deposit Insurance Corporation or a
member of the Thrift Guaranty Corporation of California in accordance
with Chapter 7 (commencing with Section 18475), (2) has its right to
participate in the Thrift Guaranty Corporation of California
suspended or revoked pursuant to subdivision (a) of Section 18496 and
it is not a member of the Federal Deposit Insurance Corporation, or
(3) fails to pay any assessment levied pursuant thereto within the
time specified.
   (j) A member industrial loan company of Guaranty Corporation
refuses to permit Guaranty Corporation, its appointed certified
public accountant or public accountant, or specialized committees or
employees to fulfill their duties under Section 18496.
   (k) An industrial loan company has sold or issued investment
certificates in violation of the provisions of this division.
   (l) An industrial loan company has failed to maintain in effect a
bond required under the provisions of this division.
   (m) Any fact or condition exists which, if it had existed at the
time of the original application for authority to organize and
establish a corporation to engage in the industrial loan business
reasonably would have warranted the commissioner in disapproving the
application.
   (n) An application for membership in the Federal Deposit Insurance
Corporation has not been filed with and accepted by the Federal
Deposit Insurance Corporation on or before January 15, 1990.
   If the commissioner takes possession of the business and property
of an industrial loan company, the company, with the consent of the
commissioner, may resume business upon prescribed conditions.




18415.1.  Whenever the commissioner has taken possession of the
property and business of an industrial loan company, that industrial
loan company, within 10 days after the taking, if it deems itself
aggrieved thereby, may apply to the superior court in the county in
which the head office of the industrial loan company is located to
enjoin further proceedings. The commissioner may exercise all powers
granted by this article during the 10-day period after taking
possession of the property and business of the industrial loan
company. The court, after citing the commissioner to show cause why
further proceedings should not be enjoined and after a hearing and a
determination of the facts upon the merits may dismiss the
application or enjoin the commissioner from further proceedings and
direct the commissioner to surrender the property and business to the
industrial loan company, or make such further order as may be just.



18415.2.  An appeal may be taken from the judgment of the court by
the commissioner or by the industrial loan company in the manner
provided by law for appeals from the judgment of a superior court to
the court of appeal.


18415.3.  (a) Whenever the net worth of an industrial loan company,
exclusive of its good will, is less than 90 percent of the aggregate
sum of its outstanding investment certificates, exclusive of those
hypothecated with the company issuing them, divided by the fraction
that is its investment certificates ratio permitted by the
commissioner, the commissioner shall by written order direct the
company to make good the alleged deficiency of net worth. Pursuant to
the commissioner's orders, the company's net worth shall be at least
100 percent of the aggregate sum of its outstanding investment
certificates, exclusive of those hypothecated with the company
issuing them, divided by the fraction that is its investment
certificates ratio permitted by the commissioner.
   (b) If the company fails to cure the alleged deficiency of net
worth within the commissioner's specified time, not to exceed 120
days, the commissioner may take possession of the company's property
and business. If the alleged deficiency is not cured within 120 days
of the order, the commissioner shall take possession of the company's
property and business.



18415.4.  The commissioner may also, upon the request of the board
of directors of a company, take possession of the property and
business of a company and as conservator, take such action as the
commissioner deems proper.


18415.5.  Upon taking possession of the property and business of any
industrial loan company, the commissioner shall give notice of that
fact to all persons holding or having in their possession any assets
of the company. The notice required by this section shall not be
deemed to be a prerequisite to the taking of possession of the
property and business of the industrial loan company. No person
knowing of the taking, or who has been notified thereof, shall have a
lien or charge upon any assets of the company for any payment,
advance or clearance thereafter made, or for any liability thereafter
incurred.
   Notice is deemed given when the commissioner has either made
personal service of the notice, or mailed the notice to the person by
certified mail.



18415.6.  Any officer, agent, employee, director, or stockholder of
a company who refuses to comply with the demand for possession issued
under Section 18415 shall be guilty of a misdemeanor punishable by a
fine of not more than one thousand dollars ($1,000) or imprisonment
not exceeding one year or by both such fine and imprisonment.




18415.7.  On demand of the commissioner, it shall be the duty of the
sheriff of any county of the state, and of the police department of
any municipal corporation therein, to furnish the commissioner with
deputies, patrolmen, or officers as may be necessary to assist the
commissioner in making and enforcing any seizure under Section 18415.




18415.8.  Upon taking possession of the property and business of any
company, the superior court for the county in which the head office
of the company is located shall have exclusive original jurisdiction
of all proceedings relating thereto and of any action or other
proceedings brought under the provisions of this chapter. All papers
relating to the taking of possession, including copies of the
certificate of appointment of any special deputy, shall be filed and
be made a part of the record of the proceeding within 45 days of the
date of taking possession. All papers filed with the superior court,
including inventories required to be filed, shall be made a part of
the record of the proceeding without the payment of any additional
fees therefor.



18415.9.  At any time after the order taking possession issued under
Section 18415 has been filed with the court, the commissioner may
remove the principal office of the person proceeded against to the
City and County of San Francisco or to the City of Los Angeles. In
the event of removal, the court where the proceeding was commenced
shall, upon the application of the commissioner, direct the superior
court clerk to transmit all of the papers filed therein with that
clerk to the Superior Court Clerk of the City and County of San
Francisco or of the County of Los Angeles as the case may require.
The proceeding shall thereafter be conducted in the same manner as
though it had been commenced in the county to which it had been
transferred.



18415.10.  The commissioner may, at any time, examine under oath any
officer, director, agent, employee or stockholder of a company to
determine whether or not all property and assets have been
transferred or delivered to the commissioner's possession.




18415.11.  Upon taking possession of the property and business of
any company, the commissioner has authority and the duty to collect
all moneys due to the company and to do such other acts as are
necessary or expedient to collect, conserve, or protect its assets,
property and business. The commissioner shall also proceed to
conserve or liquidate the affairs thereof as provided in this
chapter.


18415.12.  The commissioner may file a petition with the court and
the court shall issue such injunctions or orders, as may be deemed
necessary, to prevent any of the following occurrences:
   (a) Interference with the commissioner or the proceeding.
   (b) The institution of any actions or proceedings, or the
prosecution of any actions or proceedings already commenced.
   (c) Waste of assets of the entity.
   (d) The obtaining of preferences, judgments, attachments or other
liens against the company or its assets.
   (e) The making of any levy against the company or its assets.
   (f) The sale or deed for nonpayment of taxes or assessments levied
by any taxing agency of any of the following:
   (1) Property owned by the company.
   (2) Property upon which the company holds an encumbrance.
   (3) Property upon which the company has prior thereto commenced an
action to foreclose any deed of trust or mortgage or has exercised
the power of sale under any trust deed or mortgage which sale or
foreclosure proceedings have not yet been completed or upon which no
trustee's deed or judgment of court or sheriff's certificate of sale
has been issued.
   "Taxing agency," as used in this section, has the same meaning as
defined in Section 121 of the Revenue and Taxation Code. The
injunctions or orders authorized by this subdivision may be modified,
dissolved, or rescinded by the court on motion of the commissioner,
the Controller, or the person charged with the collection of taxes or
assessments on such property. The recording in the office of the
county recorder of any county in the state of an order or injunction
issued pursuant to this section, shall constitute service of the
order or injunction upon any taxing agency with respect to property
or interest therein located in such county.



18415.13.  After the taking of possession of the property and
business of any company, the commissioner may terminate or adopt any
executory contract to which the company may be a party, including
leases of real or personal property. The termination or adoption
shall be made within six months after obtaining knowledge of the
existence of the contract or lease. Any provision in the contract or
lease which provides for damages or cancellation fees upon
termination shall not be binding on the commissioner or the company
seized. The commissioner and the company shall only be liable for
actual damages and in no event in excess of one thousand dollars
($1,000). Any claim must be filed within 30 days of the date of the
termination.



18415.14.  The commissioner may proceed against any debtor or
alleged debtor by way of summary procedure or by order to show cause
issued by the court upon application by the commissioner.



18415.15.  The commissioner may make examinations of the seized
company and review the activities of any conservator or liquidator.



18415.16.  The actual cost of any examination, investigation or
services, including the actual amount of salary or other compensation
paid to the persons making the examination, investigation or
rendering services and the overhead costs in connection therewith, as
fixed by the commissioner, shall be paid out of the assets of the
company.



18415.17.  The determination by the commissioner to liquidate a
company, evidenced by filing written notice of the determination with
the court, operates to stay or dissolve all actions or attachments
instituted or levied within 90 days next preceding the taking of
possession of the company by the commissioner, and pending the
process of liquidation, no attachment or execution shall be levied or
lien created upon any of the property of the company.



18415.18.  Upon taking possession of the property, and business of a
company in any proceeding under this article, the commissioner shall
have the power to do all of the following:
   (a) Appoint one or more special deputy commissioners as his or her
agent or agents with the powers specified in the certificate of
appointment to assist in the duty of conservation or of liquidation
and distribution.
   (b) Employ the Attorney General as counsel or employ private
counsel as may be deemed necessary to assist the commissioner in the
performance of his or her duties under this chapter. Appointment of
private counsel shall be made only with the consent of the Attorney
General. The compensation of that counsel shall be fixed by the
commissioner, subject to the approval of the court.
   (c) Set the compensation of a special deputy commissioner.
   (d) Require from each special deputy commissioner and from each
assistant such security for the faithful performance of their duties
as the commissioner may deem proper.



18415.19.  All expenses of taking possession of, conserving,
conducting, liquidating, disposing of or otherwise dealing with the
business and property of any company under this article shall be paid
out of the assets of that company. Those expenses shall include,
among other things, the compensation of special deputy commissioners,
clerks and assistants and the actual cost of any services
attributable to the conservatorship or liquidation performed by the
commissioner and staff, including the actual amount of salary or
compensation paid to the person performing the services and overhead
costs in connection therewith as fixed by the commissioner.




18415.21.  Any transaction occurring within six months of the date
of taking possession shall be voidable by the conservator or
liquidator if the transaction has the effect of giving to, or
enabling any creditor of, the company, any affiliate of the company,
any officer, director, stockholder, employee or any relative thereof,
to obtain a preference over any other creditor of the company.



18415.22.  No obligation may be purchased or discounted under any
agreement between the company and any person involving the purchase
or discount of obligation from the person, with or without recourse,
from the moment of taking possession pursuant to Section 18415. Any
guarantees, recourse or repurchase agreements given at the time of
purchase, or discount of any obligation prior to the date of taking
possession, shall continue to be binding on the person. Any reserves,
withholds or other security held by the company under the terms of
the agreement shall be considered liabilities of the company in the
general creditor classification and may not be used as offset against
any obligation purchased or discounted under the agreement. No
distribution of assets shall be made on these liabilities until the
obligations purchased or discounted under the agreement have been
satisfied.
   In case of sale of the obligations by the liquidator, the
reserves, withholds or other security shall remain as a liability to
be paid off in the normal course of liquidation.



18415.23.  No attachment or execution shall be issued against the
property of any company before final judgment in any action or
proceeding in any court.


18420.  The commissioner, as conservator or liquidator, after taking
possession of the company, shall, in his or her name, in the name of
the company, in the name of both, or otherwise, have authority to do
all of the following:
   (a) Collect all obligations and money due the company.
   (b) Exercise and possess all the rights, powers and privileges of
the company, its officers and directors.
   (c) Institute, prosecute, maintain, defend, intervene, and
otherwise participate in any and all actions, suits, or other legal
proceedings by and against the conservator or liquidator or company,
or in which the conservator, the company or its creditors or debtors,
or any of them, have an interest, and in every way to represent the
company, its creditors, and debtors.
   (d) Execute, acknowledge, and deliver any and all deeds,
contracts, leases, assignments, bills of sale, releases, extensions,
satisfactions, and other instruments necessary or proper for any
purposes.
   (e) Be the custodian of all moneys collected by the commissioner
or coming into his or her possession in the course of any proceeding
under this chapter, but he or she may deposit those moneys, or any
part thereof, in a bank insured by the Federal Deposit Insurance
Corporation.
   (f) Invest or reinvest such portions of funds and assets of the
company, in a manner as he or she may deem suitable for the best
interests of the creditors of the company.
   (g) To revise, refinance, extend, or settle any loan or obligation
upon those terms and conditions as he or she may deem to be most
advantageous to the company.
   (h) To sell, compound, compromise or assign for the purpose of
collection upon those terms and conditions he or she deems best, any
bad or doubtful debts due the company.
   (i) To compound, compromise, or in any manner negotiate
settlements of claims against the company upon those terms and
conditions as he or she shall deem to be most advantageous to the
company.
   (j) To sell, acquire, hypothecate, encumber, lease, improve,
abandon, or otherwise dispose of or deal with any real or personal
property which has come into ownership of the company by way of
repossession, foreclosure, execution, suit or by other such means on
a basis of reasonable market value, without notice, for cash, on
terms, or upon such other terms and conditions as he or she may deem
proper.
   (k) To settle, compromise, or obtain the release of, for cash or
other consideration, claims and demands against the company or the
conservator.
   (l) To sell for cash or on terms, exchange, or otherwise dispose
of, in whole or in part, any or all the assets and property of the
company, real, personal, and mixed, tangible and intangible, of any
nature.
   (m) Execute, acknowledge, and deliver any and all deeds,
contracts, leases, assignments, bills of sale, releases, extensions,
satisfactions, and any other instruments necessary or proper for any
purposes, including, but not limited to, the effectuation,
termination, or modification of any sale, lease, or transfer of real,
personal, or mixed property, or that shall be necessary or proper to
liquidate or carry on the business of the company. Any deed or other
instrument executed pursuant to the authority hereby given shall be
as valid and effectual for all purposes as if it had been executed as
the act and deed of the company.
   (n) Pay out and expend such sums as the commissioner deems
necessary or advisable including the following:
   (1) To pay off or discharge any taxes, assessments, liens, claims,
or charges of any nature against the company, the conservator or
liquidator, any asset or property of any nature of the company, or
upon any asset or property on which the company or conservator or
liquidator has an interest of a value of any nature.
   (2) For or in connection with the preservation, maintenance,
conservation, protection, remodeling, repair, rehabilitation, or
improvement of any asset or property of any nature of the company.
   (3) To pay all costs and expenses of the conservatorship or
liquidation and all costs of carrying out or exercising the
commissioner's rights, powers, privileges, and duties as conservator.
   (4) To pay valid creditor obligations, interest owed on debts,
debts incurred during conservatorship or liquidation and all other
debts of the company or conservatorship or liquidation of any nature.
   (5) To pay all costs and expenses in the operation of the
conservatorship or liquidation of the company.
   (o) Do such things, and have such rights, powers, privileges,
immunities and duties, whether or not otherwise granted in this
chapter, as shall be authorized, directed, conferred, or imposed from
time to time in specific cases by order of the court.



18420.1.  No transaction involving real or personal property,
investment or reinvestment of funds or assets, or settlement or
compromise of pending lawsuits shall be made without first obtaining
permission of the court, and then only in accordance with such terms
as the court may prescribe, when either of the following exist:
   (a) The principal sum of any obligation due the company or
settlement or compromise of a pending lawsuit exceeds the sum of
fifteen thousand dollars ($15,000).
   (b) The market value of any real or personal property, except
obligations due the company, exceeds the sum of ten thousand dollars
($10,000).


18420.2.  The commissioner may, with ex parte approval of the court,
sell all or any part of the company's assets to another industrial
loan company, to a bank, to a savings and loan association, to
Guaranty Corporation, or to an instrumentality of the United States
government. In like manner, the commissioner may borrow from Guaranty
Corporation, an instrumentality of the United States government, or
a private insurer which insures or guarantees the company's
investment certificates, any amount necessary to facilitate the
assumption of investment certificate liabilities by a newly chartered
or existing industrial loan company, assigning any part or all of
the assets of the company as security for that loan.



18420.5.  The commissioner may appoint a person to act as
conservator or liquidator of the company. The person appointed may be
Thrift Guaranty Corporation of California. If the company's
outstanding thrift obligations are insured by an instrumentality of
the United States government, the commissioner may appoint that
instrumentality to act as conservator or liquidator of the company.
Subject to the other provisions of this division, a conservator or
liquidator, while in possession of the property and business of a
company, has the same powers and rights and is subject to the same
duties and obligations as the commissioner while in possession of the
property and business of a company. During such time, the rights of
the company and of all persons with respect thereto, subject to the
other provisions of this chapter, are the same as if the commissioner
had taken possession of such properties and business, except that
the commissioner may limit those powers and rights as he or she may
deem necessary.


18420.6.  The commissioner shall have the authority to terminate the
appointment of a conservator or liquidator whenever the commissioner
deems it in the best interest of the company, its creditors, and
investors. The commissioner shall file a copy of the notice of
termination with the court.



18420.7.  The commissioner may require a conservator or liquidator
to provide such bond as the commissioner deems proper. The
conservator or liquidator shall receive a salary, fixed by the
commissioner, in an amount no greater than that which would be paid
by the commissioner to a special deputy commissioner in charge of the
liquidation of the company.



18425.  If at any time after taking possession of the property and
business of a company it shall appear to the commissioner that it
would be futile to proceed as conservator with the conduct of the
business of the company, the commissioner may order the company to be
liquidated. A copy of the liquidation order shall be filed with the
clerk of the superior court.



18425.1.  The liquidator shall cause notice to be given by
publication for four successive weeks in a newspaper of general
circulation at or near the principal place of business in the state
of the company, to all persons having claims against the company,
other than investment certificate holders, whether or not an action
is pending to enforce any claim for demand, requiring them to present
and file their claims and make legal proof thereof at a place and
within a time designated in the notice. The time shall not be less
than 90 days after the first publication of the notice. The notice
shall also state that all claims other than those of investment
certificate holders appearing upon the books or records of the
company and any claims, whether or not an action is pending to
enforce any such claim or demand, shall be forever barred if not
filed within the time designated. The liquidator shall also mail a
similar notice to all persons whose names appear as creditors upon
the books of the company and any person who has an action pending to
enforce a claim or demand whose address appears upon the books or
records of the company and shall enclose therewith a printed form or
notice of claim.



18425.2.  All claims, demands, or causes of action of creditors, and
persons other than investors against any property owned or held by
it in trust, or otherwise, must be presented to the liquidator in
writing, verified by the claimant, or someone on his or her behalf,
within the period specified in the notice for the presentation of
claims, whether or not an action is pending to enforce any such claim
or demand. The liquidator shall not approve any claim not so
presented, and any such claim, demand, or cause of action not so
presented is forever barred.



18425.3.  If the liquidator doubts the validity of any claim, the
liquidator may reject the claim and serve notice of rejection upon
the claimant either by certified mail or personally. A notice of
rejection given by mail, addressed to the claimant at the address set
forth in the claim, shall constitute sufficient notice of the
rejection. Any action upon a claim so rejected must be brought within
30 days after the mailing of the notice or personal service of the
notice in the court in which the liquidation proceeding is pending
for an order to show cause why the claim should not be allowed.
Failure to bring such action within 30 days to enforce the payment of
or establish any rejected claim shall forever bar any such action.




18425.4.  A claim shall set forth, under oath, on the form
prescribed by the commissioner, all of the following:
   (a) The particulars of the claim, and the consideration for the
claim.
   (b) Whether the claim is secured or unsecured, and, if secured,
the nature and amount of the security.
   (c) The payments, if any, made thereon.
   (d) That the sum claimed is justly owing from such person to the
claimant.
   (e) That there is no offset to the claim.
   (f) Such other data or supporting documents as the liquidator
requires.


18425.5.  When an investment certificate holder is also a debtor,
the liquidator may offset any balance due the investment certificate
holder against the debt and the interest due on that debt up to the
date of offset, in an amount not to exceed the amount of the debt or
the amount of the thrift obligation guaranteed by the Thrift Guaranty
Corporation of California, whichever is less.



18425.6.  The amount of a claim of an investment certificate holder
shall be the amount which the investment certificate holder would
have been entitled to withdraw as of the date of taking possession,
pursuant to Section 18415, plus interest thereon accrued to that
date, without regard to whether the account is subject to any pledge.
In the case of an account with a fixed or minimum term or a
qualifying or notice period that has not expired as of the date of
taking possession, interest shall be computed as if the account had
been withdrawn on that date without penalty or reduction in interest.
   The liquidator shall give notice to each investment certificate
holder of the amount of his or her claim and the investment
certificate holder shall not be required to file a claim unless he or
she disputes the amount of the liquidator's determination.



18425.7.  When the time fixed for the presentation of claims has
expired, the liquidator shall make in duplicate a full and complete
list of all claims presented, including and specifying those claims
that have been rejected by the liquidator, and a list of all claims
of investment certificate holders as shown by the books or records of
the company, and shall file one copy of the list in the commissioner'
s office and one with the clerk of the superior court in which the
liquidation proceedings are being held. Before each application to
the court for leave to declare a dividend, the liquidator shall file
a supplemental list of claims presented since the last preceding list
was filed, including and specifying the claims as have been rejected
by the liquidator. The list of claims and of claims of investment
certificate holders as shown by the books or records of the company
shall be open for inspection at all reasonable times.



18425.8.  Objections to any claim not rejected by the liquidator may
be made by any person interested by filing his or her objections, in
writing, with the liquidator, who shall present the objections to
the court. The court shall dispose of the objections or may order
reference for that purpose, and should the objections to any claim be
sustained by the court or by the referee, that claim shall not be
allowed by the liquidator until the claimant has established his or
her claim by judgment. Any objections to a claim shall be filed
within 60 days from the date of filing of the schedule of claims as
required by this article with the court or be forever barred.



18425.9.  The liquidator, with the approval of the court, may pay
one or more dividends to investment certificate holders prior to the
expiration of the time for filing claims. After the time for filing
of claims has elapsed, the liquidator, after obtaining approval of
the court, may pay one or more dividends upon all approved claims out
of the funds remaining in the liquidator's possession after the
payment of expenses and after setting aside an amount to pay
creditors whose claims have been rejected and whose time for filing
an application to show cause under this article has not yet elapsed
or whose application is still pending. At any time after the
expiration of one year from the date of the first publication of
notice of creditors, and with court approval, the liquidator may pay
a final distribution which shall consist of the remaining funds
available for distribution, being distributed pro rata to all
approved creditor claims.


18425.10.  (a) Claims allowed in a proceeding under this article
shall be given preference in the following order:
   (1) All costs and expenses of administration of conservatorship
and liquidation.
   (2) Taxes due to the State of California.
   (3) Claims having preference by the laws of the United States and
by laws of this state.
   (4) All claims of creditors, including contractual claims for
interest to the date of payment, whose claims are fully secured.
   (5) Claims of investment certificate holders.
   (6) Claims of general creditors.
   (7) Claims on obligations subordinated to the claims of investment
certificate holders and general creditors.
   Paragraphs (5) and (6) apply only in liquidation proceedings,
where the commissioner has taken possession of the property and
business of the company on or after the effective date of this
section, and paragraph (6) shall apply only with respect to persons
who become general creditors on or after that date. It is the intent
of the Legislature that no change in the law contained in this
section shall be construed to affect the rights and obligations of
parties with regard to transactions occurring prior to the effective
date of this section. It is the intent of the Legislature that the
rights and obligations of parties existing prior to the effective
date of this section shall be determined by the law in effect prior
to the effective date of this section and without application of
changes in the law effected by this section.
   (b) All approved claims shall bear interest at the rate provided
by law or judgments from the date that the commissioner takes
possession of the property and business of the company, to the extent
funds are available to pay such interest, otherwise interest shall
be prorated.
   Interest shall be given the same preference as the claim on which
it is based, but no interest on any claim shall be paid until all
claims within the same class have received the full principal amount
of the claim.
   (c) Any funds remaining shall be returned to the stockholders of
the company pursuant to the provisions of this article.



18425.11.  Whenever the commissioner determines to liquidate a
company, the commissioner shall cause an inventory of all the assets
of the company to be made in duplicate, file the original with the
court, and file the duplicate in the commissioner's office.




18425.12.  If it appears improbable that anything can be realized
from any property of the company and that the cost of maintaining,
preserving, or protecting the property would probably be lost, the
court may direct the liquidator to abandon the property.




18425.13.  If a purchaser of any property or any bad or doubtful
debt or claim of a company cannot be obtained and it appears
improbable that recovery thereon can be had, and that the cost of
action to enforce collection of the same would probably be lost, the
superior court may direct that suit on the debt or claim need not be
brought.



18425.14.  When the liquidator has fully liquidated all claims other
than claims of stockholders, made due provision for any and all
known but unclaimed liabilities, excepting claims of stockholders,
and paid all expenses of liquidation, the liquidator may file an
application for an order for the liquidation of a domestic
corporation, or at any time thereafter, the commissioner may apply
for, and the court shall make, an order dissolving the corporation.



18425.15.  Upon the payment of a final dividend in liquidation, the
commissioner shall prepare and file with the court a full and final
statement of the liquidation, including a summary of the receipts and
disbursements, and a duplicate of the statement shall be filed in
the office of the commissioner. After hearing and approval by the
court, the liquidation shall be closed.



18425.16.  In making its order approving the commissioner's final
statement of the liquidation of the company, the court shall
determine the amounts of the liquidating dividends to which claimants
are entitled but which then remain unpaid or unclaimed in the hands
of the commissioner. The order of the court shall direct the
commissioner to deposit those amounts with the Treasurer. All amounts
so deposited shall be deemed to be deposited in the State Treasury
under the provisions of Chapter 7 (commencing with Section 1500) of
Title 10 of Part 3 of the Code of Civil Procedure, and shall be
subject to claim or disposition as provided in that chapter.




18425.17.  The order of the court approving the final statement on
liquidation shall provide for the destruction or other disposition of
the books and records of the company or pertaining to the
liquidation of the company, and the court may declare the company
dissolved as a corporation. The liquidator shall file a copy of the
order of dissolution with the Secretary of State.



State Codes and Statutes

State Codes and Statutes

Statutes > California > Fin > 18415-18425.17

FINANCIAL CODE
SECTION 18415-18425.17



18415.  The commissioner may take possession of the property and
business of any industrial loan company and retain possession until
the company resumes business or its affairs are liquidated if any of
the following grounds exist:
   (a) The capital of an industrial loan company is impaired.
   (b) An industrial loan company has violated its articles of
incorporation or any law of this state.
   (c) An industrial loan company is conducting its business in an
unsafe or unauthorized manner.
   (d) An industrial loan company refuses to submit its books, papers
and affairs to the inspection of any examiner.
   (e) An officer of any industrial loan company refuses to be
examined upon oath touching the concerns of such industrial loan
company.
   (f) An industrial loan company has suspended payment of its
obligations.
   (g) An industrial loan company is in such condition that it is
unsound or unsafe for it to transact business.
   (h) An industrial loan company neglects or refuses to observe any
order of the commissioner made pursuant to this division, unless the
enforcement of that order is restrained in a proceeding brought by
the industrial loan company.
   (i) An industrial loan company (1) fails to become and continue as
either a member of the Federal Deposit Insurance Corporation or a
member of the Thrift Guaranty Corporation of California in accordance
with Chapter 7 (commencing with Section 18475), (2) has its right to
participate in the Thrift Guaranty Corporation of California
suspended or revoked pursuant to subdivision (a) of Section 18496 and
it is not a member of the Federal Deposit Insurance Corporation, or
(3) fails to pay any assessment levied pursuant thereto within the
time specified.
   (j) A member industrial loan company of Guaranty Corporation
refuses to permit Guaranty Corporation, its appointed certified
public accountant or public accountant, or specialized committees or
employees to fulfill their duties under Section 18496.
   (k) An industrial loan company has sold or issued investment
certificates in violation of the provisions of this division.
   (l) An industrial loan company has failed to maintain in effect a
bond required under the provisions of this division.
   (m) Any fact or condition exists which, if it had existed at the
time of the original application for authority to organize and
establish a corporation to engage in the industrial loan business
reasonably would have warranted the commissioner in disapproving the
application.
   (n) An application for membership in the Federal Deposit Insurance
Corporation has not been filed with and accepted by the Federal
Deposit Insurance Corporation on or before January 15, 1990.
   If the commissioner takes possession of the business and property
of an industrial loan company, the company, with the consent of the
commissioner, may resume business upon prescribed conditions.




18415.1.  Whenever the commissioner has taken possession of the
property and business of an industrial loan company, that industrial
loan company, within 10 days after the taking, if it deems itself
aggrieved thereby, may apply to the superior court in the county in
which the head office of the industrial loan company is located to
enjoin further proceedings. The commissioner may exercise all powers
granted by this article during the 10-day period after taking
possession of the property and business of the industrial loan
company. The court, after citing the commissioner to show cause why
further proceedings should not be enjoined and after a hearing and a
determination of the facts upon the merits may dismiss the
application or enjoin the commissioner from further proceedings and
direct the commissioner to surrender the property and business to the
industrial loan company, or make such further order as may be just.



18415.2.  An appeal may be taken from the judgment of the court by
the commissioner or by the industrial loan company in the manner
provided by law for appeals from the judgment of a superior court to
the court of appeal.


18415.3.  (a) Whenever the net worth of an industrial loan company,
exclusive of its good will, is less than 90 percent of the aggregate
sum of its outstanding investment certificates, exclusive of those
hypothecated with the company issuing them, divided by the fraction
that is its investment certificates ratio permitted by the
commissioner, the commissioner shall by written order direct the
company to make good the alleged deficiency of net worth. Pursuant to
the commissioner's orders, the company's net worth shall be at least
100 percent of the aggregate sum of its outstanding investment
certificates, exclusive of those hypothecated with the company
issuing them, divided by the fraction that is its investment
certificates ratio permitted by the commissioner.
   (b) If the company fails to cure the alleged deficiency of net
worth within the commissioner's specified time, not to exceed 120
days, the commissioner may take possession of the company's property
and business. If the alleged deficiency is not cured within 120 days
of the order, the commissioner shall take possession of the company's
property and business.



18415.4.  The commissioner may also, upon the request of the board
of directors of a company, take possession of the property and
business of a company and as conservator, take such action as the
commissioner deems proper.


18415.5.  Upon taking possession of the property and business of any
industrial loan company, the commissioner shall give notice of that
fact to all persons holding or having in their possession any assets
of the company. The notice required by this section shall not be
deemed to be a prerequisite to the taking of possession of the
property and business of the industrial loan company. No person
knowing of the taking, or who has been notified thereof, shall have a
lien or charge upon any assets of the company for any payment,
advance or clearance thereafter made, or for any liability thereafter
incurred.
   Notice is deemed given when the commissioner has either made
personal service of the notice, or mailed the notice to the person by
certified mail.



18415.6.  Any officer, agent, employee, director, or stockholder of
a company who refuses to comply with the demand for possession issued
under Section 18415 shall be guilty of a misdemeanor punishable by a
fine of not more than one thousand dollars ($1,000) or imprisonment
not exceeding one year or by both such fine and imprisonment.




18415.7.  On demand of the commissioner, it shall be the duty of the
sheriff of any county of the state, and of the police department of
any municipal corporation therein, to furnish the commissioner with
deputies, patrolmen, or officers as may be necessary to assist the
commissioner in making and enforcing any seizure under Section 18415.




18415.8.  Upon taking possession of the property and business of any
company, the superior court for the county in which the head office
of the company is located shall have exclusive original jurisdiction
of all proceedings relating thereto and of any action or other
proceedings brought under the provisions of this chapter. All papers
relating to the taking of possession, including copies of the
certificate of appointment of any special deputy, shall be filed and
be made a part of the record of the proceeding within 45 days of the
date of taking possession. All papers filed with the superior court,
including inventories required to be filed, shall be made a part of
the record of the proceeding without the payment of any additional
fees therefor.



18415.9.  At any time after the order taking possession issued under
Section 18415 has been filed with the court, the commissioner may
remove the principal office of the person proceeded against to the
City and County of San Francisco or to the City of Los Angeles. In
the event of removal, the court where the proceeding was commenced
shall, upon the application of the commissioner, direct the superior
court clerk to transmit all of the papers filed therein with that
clerk to the Superior Court Clerk of the City and County of San
Francisco or of the County of Los Angeles as the case may require.
The proceeding shall thereafter be conducted in the same manner as
though it had been commenced in the county to which it had been
transferred.



18415.10.  The commissioner may, at any time, examine under oath any
officer, director, agent, employee or stockholder of a company to
determine whether or not all property and assets have been
transferred or delivered to the commissioner's possession.




18415.11.  Upon taking possession of the property and business of
any company, the commissioner has authority and the duty to collect
all moneys due to the company and to do such other acts as are
necessary or expedient to collect, conserve, or protect its assets,
property and business. The commissioner shall also proceed to
conserve or liquidate the affairs thereof as provided in this
chapter.


18415.12.  The commissioner may file a petition with the court and
the court shall issue such injunctions or orders, as may be deemed
necessary, to prevent any of the following occurrences:
   (a) Interference with the commissioner or the proceeding.
   (b) The institution of any actions or proceedings, or the
prosecution of any actions or proceedings already commenced.
   (c) Waste of assets of the entity.
   (d) The obtaining of preferences, judgments, attachments or other
liens against the company or its assets.
   (e) The making of any levy against the company or its assets.
   (f) The sale or deed for nonpayment of taxes or assessments levied
by any taxing agency of any of the following:
   (1) Property owned by the company.
   (2) Property upon which the company holds an encumbrance.
   (3) Property upon which the company has prior thereto commenced an
action to foreclose any deed of trust or mortgage or has exercised
the power of sale under any trust deed or mortgage which sale or
foreclosure proceedings have not yet been completed or upon which no
trustee's deed or judgment of court or sheriff's certificate of sale
has been issued.
   "Taxing agency," as used in this section, has the same meaning as
defined in Section 121 of the Revenue and Taxation Code. The
injunctions or orders authorized by this subdivision may be modified,
dissolved, or rescinded by the court on motion of the commissioner,
the Controller, or the person charged with the collection of taxes or
assessments on such property. The recording in the office of the
county recorder of any county in the state of an order or injunction
issued pursuant to this section, shall constitute service of the
order or injunction upon any taxing agency with respect to property
or interest therein located in such county.



18415.13.  After the taking of possession of the property and
business of any company, the commissioner may terminate or adopt any
executory contract to which the company may be a party, including
leases of real or personal property. The termination or adoption
shall be made within six months after obtaining knowledge of the
existence of the contract or lease. Any provision in the contract or
lease which provides for damages or cancellation fees upon
termination shall not be binding on the commissioner or the company
seized. The commissioner and the company shall only be liable for
actual damages and in no event in excess of one thousand dollars
($1,000). Any claim must be filed within 30 days of the date of the
termination.



18415.14.  The commissioner may proceed against any debtor or
alleged debtor by way of summary procedure or by order to show cause
issued by the court upon application by the commissioner.



18415.15.  The commissioner may make examinations of the seized
company and review the activities of any conservator or liquidator.



18415.16.  The actual cost of any examination, investigation or
services, including the actual amount of salary or other compensation
paid to the persons making the examination, investigation or
rendering services and the overhead costs in connection therewith, as
fixed by the commissioner, shall be paid out of the assets of the
company.



18415.17.  The determination by the commissioner to liquidate a
company, evidenced by filing written notice of the determination with
the court, operates to stay or dissolve all actions or attachments
instituted or levied within 90 days next preceding the taking of
possession of the company by the commissioner, and pending the
process of liquidation, no attachment or execution shall be levied or
lien created upon any of the property of the company.



18415.18.  Upon taking possession of the property, and business of a
company in any proceeding under this article, the commissioner shall
have the power to do all of the following:
   (a) Appoint one or more special deputy commissioners as his or her
agent or agents with the powers specified in the certificate of
appointment to assist in the duty of conservation or of liquidation
and distribution.
   (b) Employ the Attorney General as counsel or employ private
counsel as may be deemed necessary to assist the commissioner in the
performance of his or her duties under this chapter. Appointment of
private counsel shall be made only with the consent of the Attorney
General. The compensation of that counsel shall be fixed by the
commissioner, subject to the approval of the court.
   (c) Set the compensation of a special deputy commissioner.
   (d) Require from each special deputy commissioner and from each
assistant such security for the faithful performance of their duties
as the commissioner may deem proper.



18415.19.  All expenses of taking possession of, conserving,
conducting, liquidating, disposing of or otherwise dealing with the
business and property of any company under this article shall be paid
out of the assets of that company. Those expenses shall include,
among other things, the compensation of special deputy commissioners,
clerks and assistants and the actual cost of any services
attributable to the conservatorship or liquidation performed by the
commissioner and staff, including the actual amount of salary or
compensation paid to the person performing the services and overhead
costs in connection therewith as fixed by the commissioner.




18415.21.  Any transaction occurring within six months of the date
of taking possession shall be voidable by the conservator or
liquidator if the transaction has the effect of giving to, or
enabling any creditor of, the company, any affiliate of the company,
any officer, director, stockholder, employee or any relative thereof,
to obtain a preference over any other creditor of the company.



18415.22.  No obligation may be purchased or discounted under any
agreement between the company and any person involving the purchase
or discount of obligation from the person, with or without recourse,
from the moment of taking possession pursuant to Section 18415. Any
guarantees, recourse or repurchase agreements given at the time of
purchase, or discount of any obligation prior to the date of taking
possession, shall continue to be binding on the person. Any reserves,
withholds or other security held by the company under the terms of
the agreement shall be considered liabilities of the company in the
general creditor classification and may not be used as offset against
any obligation purchased or discounted under the agreement. No
distribution of assets shall be made on these liabilities until the
obligations purchased or discounted under the agreement have been
satisfied.
   In case of sale of the obligations by the liquidator, the
reserves, withholds or other security shall remain as a liability to
be paid off in the normal course of liquidation.



18415.23.  No attachment or execution shall be issued against the
property of any company before final judgment in any action or
proceeding in any court.


18420.  The commissioner, as conservator or liquidator, after taking
possession of the company, shall, in his or her name, in the name of
the company, in the name of both, or otherwise, have authority to do
all of the following:
   (a) Collect all obligations and money due the company.
   (b) Exercise and possess all the rights, powers and privileges of
the company, its officers and directors.
   (c) Institute, prosecute, maintain, defend, intervene, and
otherwise participate in any and all actions, suits, or other legal
proceedings by and against the conservator or liquidator or company,
or in which the conservator, the company or its creditors or debtors,
or any of them, have an interest, and in every way to represent the
company, its creditors, and debtors.
   (d) Execute, acknowledge, and deliver any and all deeds,
contracts, leases, assignments, bills of sale, releases, extensions,
satisfactions, and other instruments necessary or proper for any
purposes.
   (e) Be the custodian of all moneys collected by the commissioner
or coming into his or her possession in the course of any proceeding
under this chapter, but he or she may deposit those moneys, or any
part thereof, in a bank insured by the Federal Deposit Insurance
Corporation.
   (f) Invest or reinvest such portions of funds and assets of the
company, in a manner as he or she may deem suitable for the best
interests of the creditors of the company.
   (g) To revise, refinance, extend, or settle any loan or obligation
upon those terms and conditions as he or she may deem to be most
advantageous to the company.
   (h) To sell, compound, compromise or assign for the purpose of
collection upon those terms and conditions he or she deems best, any
bad or doubtful debts due the company.
   (i) To compound, compromise, or in any manner negotiate
settlements of claims against the company upon those terms and
conditions as he or she shall deem to be most advantageous to the
company.
   (j) To sell, acquire, hypothecate, encumber, lease, improve,
abandon, or otherwise dispose of or deal with any real or personal
property which has come into ownership of the company by way of
repossession, foreclosure, execution, suit or by other such means on
a basis of reasonable market value, without notice, for cash, on
terms, or upon such other terms and conditions as he or she may deem
proper.
   (k) To settle, compromise, or obtain the release of, for cash or
other consideration, claims and demands against the company or the
conservator.
   (l) To sell for cash or on terms, exchange, or otherwise dispose
of, in whole or in part, any or all the assets and property of the
company, real, personal, and mixed, tangible and intangible, of any
nature.
   (m) Execute, acknowledge, and deliver any and all deeds,
contracts, leases, assignments, bills of sale, releases, extensions,
satisfactions, and any other instruments necessary or proper for any
purposes, including, but not limited to, the effectuation,
termination, or modification of any sale, lease, or transfer of real,
personal, or mixed property, or that shall be necessary or proper to
liquidate or carry on the business of the company. Any deed or other
instrument executed pursuant to the authority hereby given shall be
as valid and effectual for all purposes as if it had been executed as
the act and deed of the company.
   (n) Pay out and expend such sums as the commissioner deems
necessary or advisable including the following:
   (1) To pay off or discharge any taxes, assessments, liens, claims,
or charges of any nature against the company, the conservator or
liquidator, any asset or property of any nature of the company, or
upon any asset or property on which the company or conservator or
liquidator has an interest of a value of any nature.
   (2) For or in connection with the preservation, maintenance,
conservation, protection, remodeling, repair, rehabilitation, or
improvement of any asset or property of any nature of the company.
   (3) To pay all costs and expenses of the conservatorship or
liquidation and all costs of carrying out or exercising the
commissioner's rights, powers, privileges, and duties as conservator.
   (4) To pay valid creditor obligations, interest owed on debts,
debts incurred during conservatorship or liquidation and all other
debts of the company or conservatorship or liquidation of any nature.
   (5) To pay all costs and expenses in the operation of the
conservatorship or liquidation of the company.
   (o) Do such things, and have such rights, powers, privileges,
immunities and duties, whether or not otherwise granted in this
chapter, as shall be authorized, directed, conferred, or imposed from
time to time in specific cases by order of the court.



18420.1.  No transaction involving real or personal property,
investment or reinvestment of funds or assets, or settlement or
compromise of pending lawsuits shall be made without first obtaining
permission of the court, and then only in accordance with such terms
as the court may prescribe, when either of the following exist:
   (a) The principal sum of any obligation due the company or
settlement or compromise of a pending lawsuit exceeds the sum of
fifteen thousand dollars ($15,000).
   (b) The market value of any real or personal property, except
obligations due the company, exceeds the sum of ten thousand dollars
($10,000).


18420.2.  The commissioner may, with ex parte approval of the court,
sell all or any part of the company's assets to another industrial
loan company, to a bank, to a savings and loan association, to
Guaranty Corporation, or to an instrumentality of the United States
government. In like manner, the commissioner may borrow from Guaranty
Corporation, an instrumentality of the United States government, or
a private insurer which insures or guarantees the company's
investment certificates, any amount necessary to facilitate the
assumption of investment certificate liabilities by a newly chartered
or existing industrial loan company, assigning any part or all of
the assets of the company as security for that loan.



18420.5.  The commissioner may appoint a person to act as
conservator or liquidator of the company. The person appointed may be
Thrift Guaranty Corporation of California. If the company's
outstanding thrift obligations are insured by an instrumentality of
the United States government, the commissioner may appoint that
instrumentality to act as conservator or liquidator of the company.
Subject to the other provisions of this division, a conservator or
liquidator, while in possession of the property and business of a
company, has the same powers and rights and is subject to the same
duties and obligations as the commissioner while in possession of the
property and business of a company. During such time, the rights of
the company and of all persons with respect thereto, subject to the
other provisions of this chapter, are the same as if the commissioner
had taken possession of such properties and business, except that
the commissioner may limit those powers and rights as he or she may
deem necessary.


18420.6.  The commissioner shall have the authority to terminate the
appointment of a conservator or liquidator whenever the commissioner
deems it in the best interest of the company, its creditors, and
investors. The commissioner shall file a copy of the notice of
termination with the court.



18420.7.  The commissioner may require a conservator or liquidator
to provide such bond as the commissioner deems proper. The
conservator or liquidator shall receive a salary, fixed by the
commissioner, in an amount no greater than that which would be paid
by the commissioner to a special deputy commissioner in charge of the
liquidation of the company.



18425.  If at any time after taking possession of the property and
business of a company it shall appear to the commissioner that it
would be futile to proceed as conservator with the conduct of the
business of the company, the commissioner may order the company to be
liquidated. A copy of the liquidation order shall be filed with the
clerk of the superior court.



18425.1.  The liquidator shall cause notice to be given by
publication for four successive weeks in a newspaper of general
circulation at or near the principal place of business in the state
of the company, to all persons having claims against the company,
other than investment certificate holders, whether or not an action
is pending to enforce any claim for demand, requiring them to present
and file their claims and make legal proof thereof at a place and
within a time designated in the notice. The time shall not be less
than 90 days after the first publication of the notice. The notice
shall also state that all claims other than those of investment
certificate holders appearing upon the books or records of the
company and any claims, whether or not an action is pending to
enforce any such claim or demand, shall be forever barred if not
filed within the time designated. The liquidator shall also mail a
similar notice to all persons whose names appear as creditors upon
the books of the company and any person who has an action pending to
enforce a claim or demand whose address appears upon the books or
records of the company and shall enclose therewith a printed form or
notice of claim.



18425.2.  All claims, demands, or causes of action of creditors, and
persons other than investors against any property owned or held by
it in trust, or otherwise, must be presented to the liquidator in
writing, verified by the claimant, or someone on his or her behalf,
within the period specified in the notice for the presentation of
claims, whether or not an action is pending to enforce any such claim
or demand. The liquidator shall not approve any claim not so
presented, and any such claim, demand, or cause of action not so
presented is forever barred.



18425.3.  If the liquidator doubts the validity of any claim, the
liquidator may reject the claim and serve notice of rejection upon
the claimant either by certified mail or personally. A notice of
rejection given by mail, addressed to the claimant at the address set
forth in the claim, shall constitute sufficient notice of the
rejection. Any action upon a claim so rejected must be brought within
30 days after the mailing of the notice or personal service of the
notice in the court in which the liquidation proceeding is pending
for an order to show cause why the claim should not be allowed.
Failure to bring such action within 30 days to enforce the payment of
or establish any rejected claim shall forever bar any such action.




18425.4.  A claim shall set forth, under oath, on the form
prescribed by the commissioner, all of the following:
   (a) The particulars of the claim, and the consideration for the
claim.
   (b) Whether the claim is secured or unsecured, and, if secured,
the nature and amount of the security.
   (c) The payments, if any, made thereon.
   (d) That the sum claimed is justly owing from such person to the
claimant.
   (e) That there is no offset to the claim.
   (f) Such other data or supporting documents as the liquidator
requires.


18425.5.  When an investment certificate holder is also a debtor,
the liquidator may offset any balance due the investment certificate
holder against the debt and the interest due on that debt up to the
date of offset, in an amount not to exceed the amount of the debt or
the amount of the thrift obligation guaranteed by the Thrift Guaranty
Corporation of California, whichever is less.



18425.6.  The amount of a claim of an investment certificate holder
shall be the amount which the investment certificate holder would
have been entitled to withdraw as of the date of taking possession,
pursuant to Section 18415, plus interest thereon accrued to that
date, without regard to whether the account is subject to any pledge.
In the case of an account with a fixed or minimum term or a
qualifying or notice period that has not expired as of the date of
taking possession, interest shall be computed as if the account had
been withdrawn on that date without penalty or reduction in interest.
   The liquidator shall give notice to each investment certificate
holder of the amount of his or her claim and the investment
certificate holder shall not be required to file a claim unless he or
she disputes the amount of the liquidator's determination.



18425.7.  When the time fixed for the presentation of claims has
expired, the liquidator shall make in duplicate a full and complete
list of all claims presented, including and specifying those claims
that have been rejected by the liquidator, and a list of all claims
of investment certificate holders as shown by the books or records of
the company, and shall file one copy of the list in the commissioner'
s office and one with the clerk of the superior court in which the
liquidation proceedings are being held. Before each application to
the court for leave to declare a dividend, the liquidator shall file
a supplemental list of claims presented since the last preceding list
was filed, including and specifying the claims as have been rejected
by the liquidator. The list of claims and of claims of investment
certificate holders as shown by the books or records of the company
shall be open for inspection at all reasonable times.



18425.8.  Objections to any claim not rejected by the liquidator may
be made by any person interested by filing his or her objections, in
writing, with the liquidator, who shall present the objections to
the court. The court shall dispose of the objections or may order
reference for that purpose, and should the objections to any claim be
sustained by the court or by the referee, that claim shall not be
allowed by the liquidator until the claimant has established his or
her claim by judgment. Any objections to a claim shall be filed
within 60 days from the date of filing of the schedule of claims as
required by this article with the court or be forever barred.



18425.9.  The liquidator, with the approval of the court, may pay
one or more dividends to investment certificate holders prior to the
expiration of the time for filing claims. After the time for filing
of claims has elapsed, the liquidator, after obtaining approval of
the court, may pay one or more dividends upon all approved claims out
of the funds remaining in the liquidator's possession after the
payment of expenses and after setting aside an amount to pay
creditors whose claims have been rejected and whose time for filing
an application to show cause under this article has not yet elapsed
or whose application is still pending. At any time after the
expiration of one year from the date of the first publication of
notice of creditors, and with court approval, the liquidator may pay
a final distribution which shall consist of the remaining funds
available for distribution, being distributed pro rata to all
approved creditor claims.


18425.10.  (a) Claims allowed in a proceeding under this article
shall be given preference in the following order:
   (1) All costs and expenses of administration of conservatorship
and liquidation.
   (2) Taxes due to the State of California.
   (3) Claims having preference by the laws of the United States and
by laws of this state.
   (4) All claims of creditors, including contractual claims for
interest to the date of payment, whose claims are fully secured.
   (5) Claims of investment certificate holders.
   (6) Claims of general creditors.
   (7) Claims on obligations subordinated to the claims of investment
certificate holders and general creditors.
   Paragraphs (5) and (6) apply only in liquidation proceedings,
where the commissioner has taken possession of the property and
business of the company on or after the effective date of this
section, and paragraph (6) shall apply only with respect to persons
who become general creditors on or after that date. It is the intent
of the Legislature that no change in the law contained in this
section shall be construed to affect the rights and obligations of
parties with regard to transactions occurring prior to the effective
date of this section. It is the intent of the Legislature that the
rights and obligations of parties existing prior to the effective
date of this section shall be determined by the law in effect prior
to the effective date of this section and without application of
changes in the law effected by this section.
   (b) All approved claims shall bear interest at the rate provided
by law or judgments from the date that the commissioner takes
possession of the property and business of the company, to the extent
funds are available to pay such interest, otherwise interest shall
be prorated.
   Interest shall be given the same preference as the claim on which
it is based, but no interest on any claim shall be paid until all
claims within the same class have received the full principal amount
of the claim.
   (c) Any funds remaining shall be returned to the stockholders of
the company pursuant to the provisions of this article.



18425.11.  Whenever the commissioner determines to liquidate a
company, the commissioner shall cause an inventory of all the assets
of the company to be made in duplicate, file the original with the
court, and file the duplicate in the commissioner's office.




18425.12.  If it appears improbable that anything can be realized
from any property of the company and that the cost of maintaining,
preserving, or protecting the property would probably be lost, the
court may direct the liquidator to abandon the property.




18425.13.  If a purchaser of any property or any bad or doubtful
debt or claim of a company cannot be obtained and it appears
improbable that recovery thereon can be had, and that the cost of
action to enforce collection of the same would probably be lost, the
superior court may direct that suit on the debt or claim need not be
brought.



18425.14.  When the liquidator has fully liquidated all claims other
than claims of stockholders, made due provision for any and all
known but unclaimed liabilities, excepting claims of stockholders,
and paid all expenses of liquidation, the liquidator may file an
application for an order for the liquidation of a domestic
corporation, or at any time thereafter, the commissioner may apply
for, and the court shall make, an order dissolving the corporation.



18425.15.  Upon the payment of a final dividend in liquidation, the
commissioner shall prepare and file with the court a full and final
statement of the liquidation, including a summary of the receipts and
disbursements, and a duplicate of the statement shall be filed in
the office of the commissioner. After hearing and approval by the
court, the liquidation shall be closed.



18425.16.  In making its order approving the commissioner's final
statement of the liquidation of the company, the court shall
determine the amounts of the liquidating dividends to which claimants
are entitled but which then remain unpaid or unclaimed in the hands
of the commissioner. The order of the court shall direct the
commissioner to deposit those amounts with the Treasurer. All amounts
so deposited shall be deemed to be deposited in the State Treasury
under the provisions of Chapter 7 (commencing with Section 1500) of
Title 10 of Part 3 of the Code of Civil Procedure, and shall be
subject to claim or disposition as provided in that chapter.




18425.17.  The order of the court approving the final statement on
liquidation shall provide for the destruction or other disposition of
the books and records of the company or pertaining to the
liquidation of the company, and the court may declare the company
dissolved as a corporation. The liquidator shall file a copy of the
order of dissolution with the Secretary of State.


Categories