305.
305.1. Upon taking possession of the property and business of any
licensee, the commissioner has authority, and it is his or her duty,
to collect all moneys due to the licensee and to do other acts as are
necessary or expedient to collect, conserve, or protect the licensee'
s assets, property, and business, and he or she shall proceed to
conserve or liquidate the affairs of the licensee as provided in this
article.
305.2. No attachment shall be issued against the property of any
licensee subject to conservation or liquidation pursuant to this
article.
305.3. Upon taking possession of the property and business of any
licensee pursuant to Section 302, the commissioner may proceed to
liquidate or conserve the licensee in the manner provided by this
article.
305.4. Upon taking possession of the property and business of a
licensee pursuant to Section 302, the commissioner may tender to any
person or persons an appointment as conservator, liquidator,
receiver, or liquidating committee of the licensee.
305.5. The commissioner shall supervise the acts of the
conservator, liquidator, receiver, or liquidating committee appointed
under this article and may remove the conservator, liquidator,
receiver, or any or all members of the liquidating committee in his
or her discretion.
305.6. If required by the commissioner, the conservator,
liquidator, receiver, or members of the liquidating committee
appointed under this article shall provide proof of bond coverage
that extends to the conservator, liquidator, receiver, or members of
the liquidating committee. The bond shall include fraud, dishonesty,
and faithful performance coverage. The premium for that bond shall be
paid out of the assets of the licensee.
305.7. (a) If the commissioner retains possession of the assets of
the licensee for the purpose of liquidation or conservation, the
commissioner shall, to the extent possible, use the services of civil
service employees of the commissioner's office, and the attorneys
employed by the commissioner or the Department of Justice shall
render all necessary legal services, as the commissioner may request.
(b) The commissioner, from time to time, under his or her official
seal, may 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 him or her in the duties of conservation or of
liquidation and distribution. The certificate of appointment shall be
filed in the office of the commissioner and a certified copy in the
office of the clerk of the county in which the head office of the
licensee is located. The commissioner may employ counsel and procure
expert assistance and advice as may be necessary in the liquidation
and distribution of the assets of the licensee and for that purpose
may retain any of the officers or employees of the licensee as the
commissioner may deem necessary.
305.8. The compensation of civil service employees, special
deputies, counsel, and other employees and assistants appointed to
assist in the conservation or liquidation of any licensee and the
distribution of its assets and all expenses of supervision and
liquidation shall be fixed by the commissioner and shall be paid out
of the funds of the licensee in the hands of the commissioner. The
expenses of liquidation shall be reported to the court upon each
application for payment of a dividend.
305.9. If a licensee is not insured by a Federal Insurance Agency,
upon the commissioner taking possession of the business and property
of the licensee, the superior court of the State of California for
the county in which the head office of the licensee 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 article. All papers relating to the proceeding,
including copies of the certificate of appointment of any special
deputy and the inventories required to be filed, shall be filed and
be made a part of the record of the proceeding without the payment of
any additional fees. No damages may be awarded in the proceeding
but, if sought, may only be recovered in a separate action.
310. If the licensee whose property and business has been taken
pursuant to Section 302 is insured by a Federal Insurance Agency, the
commissioner may tender to the appropriate Federal Insurance Agency
an appointment as conservator, liquidator, or receiver of the
licensee. The commissioner shall determine whether the licensee whose
property and business has been taken shall be liquidated or
conserved. If the Federal Insurance Agency accepts the appointment,
the Federal Insurance Agency shall have, in addition to any powers
conferred by applicable federal law, the powers conferred on the
commissioner pursuant to this article.
310.1. The Federal Insurance Agency may be, and act as, a
conservator, liquidator, or receiver without bond.
310.2. If the Federal Insurance Agency accepts the appointment in
accordance with Section 310.1, the rights of customers and other
creditors of the insured licensee shall be determined in accordance
with the applicable provisions of the laws of this state.
310.3. The Federal Insurance Agency conservator, liquidator, or
receiver shall possess with respect to the insured licensee all the
powers, rights, and privileges given the commissioner under this
article with respect to the conservation or liquidation of a
licensee, as appropriate, and the property and assets of which he or
she has taken possession, except insofar as the same may be in
conflict with the provisions of applicable federal law.
310.4. (a) The commissioner may sell to any other licensee any part
or the whole of the business of a licensee that is subject to
liquidation or conservatorship. The purchase and sale shall be
approved by the purchasing licensee, as follows:
(1) If the purchasing licensee is organized under the laws of this
state, by two-thirds of all of its directors.
(2) If the licensee is any licensee other than a licensee
organized under the laws of this state, in accordance with the laws
of the jurisdiction under which the licensee is organized.
(b) (1) Subject to any applicable federal statutes and
regulations, any bank or credit union organized under the laws of
this state may, with the approval of two-thirds of all of its
directors, purchase from the receiver of a national banking
association or a federal credit union the whole or any part of the
business of the national banking association or federal credit union.
(2) Subject to any applicable federal statutes and regulations and
any applicable laws of the jurisdiction under which a foreign
corporation is organized, any foreign corporation or office of a
foreign corporation that is licensed by the commissioner to transact
business in this state and that is authorized to accept shares or
deposits in this state, may purchase from the receiver of a national
banking association or federal credit union the whole or any part of
the business of the national banking association or federal credit
union.
(c) The provisions of Chapter 12 (commencing with Section 1200)
and Chapter 13 (commencing with Section 1300) of Division 1 of Title
1 of the Corporations Code shall not apply to any purchase and sale
of the type described in subdivision (a) or (b).
(d) When a purchase and sale of the type described in subdivision
(a) or (b) becomes effective, the licensee shall, ipso facto and by
operation of law and without further transfer, substitution, act, or
deed, to the extent provided in the agreement of the purchase and
sale or in the order of the court approving the purchase and sale and
except as withheld or limited by the agreement or by the order:
(1) Succeed to the rights, obligations, properties, assets,
investments, shares, deposits, demands, and agreements of the
licensee whose business is sold, subject to the right of every
customer of a licensee to withdraw his or her shares or deposit in
full on demand after the sale, irrespective of the terms under which
the share or deposit was made.
(2) Succeed to the rights, obligations, properties, assets,
investments, shares, deposits, demands, and agreements of the
licensee whose business is sold under all trusts, executorships,
administrations, guardianships, conservatorships, agencies, and other
fiduciary or representative capacities, to the same extent as though
the purchasing licensee had originally assumed, acquired, or owned
the same, subject to the rights of trustors and beneficiaries under
the trusts so sold to nominate another or succeeding trustee of the
trust so sold after the sale.
(3) Succeed to and be entitled to take and execute the appointment
to executorships, trusteeships, guardianships, conservatorships, and
other fiduciary and representative capacities to which the licensee
whose business is sold is or may be named in wills, whenever
probated, or to which it is or may be named or appointed by any other
instrument.
(e) For purposes of subdivision (d), any purchase and sale of the
type referred to in subdivision (d) shall be deemed to be effective
at the time provided in the agreement of the purchase and sale or in
the order of the court approving the purchase and sale.
315. Whenever the commissioner deems it necessary in order to
conserve the assets of any licensee that does not have federal
deposit or share insurance for the benefit of the customers and other
creditors, he or she may appoint a conservator of the licensee and
require the conservator to post a bond as the commissioner deems
proper. The conservator, under the direction of the commissioner,
shall take possession of the books, records, and assets of every
description of the licensee and take any action as the conservator
may deem necessary to conserve the assets of the licensee pending
further disposition of its business.
315.1. A conservator appointed in accordance with Section 315 has
all of the powers and rights with relation to the business and the
property of the licensee for which he or she is appointed conservator
as are possessed by the commissioner under this article with
relation to a licensee of which the commissioner has taken
possession, and the conservator is subject to the same obligations as
are imposed upon the commissioner under this article. During the
time that the conservator remains in possession of the licensee the
rights of the licensee, and of all persons with respect thereto,
subject to the other provisions of this article, are the same as if
the commissioner had taken possession of the property and business of
the licensee for the purposes of liquidation. All expenses of the
conservatorship shall be paid out of the assets of the licensee and
shall be a lien thereon which shall be prior to any other lien. The
conservator shall receive a salary in an amount no greater than that
which would be paid by the commissioner to a special deputy in charge
of the liquidation of a licensee.
315.2. The commissioner may order an examination at the earliest
possible date of a licensee for which the commissioner has appointed
a conservator.
315.3. While any licensee is in the hands of a conservator, the
commissioner may require the conservator to set aside and make
available for withdrawal by customers and for payment to other
creditors on a ratable basis such amounts as in the opinion of the
commissioner may safely be used for that purpose.
315.4. The commissioner, in his or her discretion, may permit the
conservator to receive shares or deposits, but any shares or deposits
received while the licensee is in the hands of a conservator shall
be held as trust funds and shall not be subject to any limitation as
to payment or withdrawal. The shares or deposits shall be segregated
and shall not be used to liquidate any indebtedness of the licensee
existing at the time the conservator was appointed or for the payment
of any later indebtedness incurred for the purpose of liquidating
any indebtedness of the licensee existing at the time the conservator
was appointed. The shares or deposits shall be kept on hand in cash,
invested in direct obligations of the United States, or deposited
with the Federal Reserve Bank.
315.5. If the commissioner is satisfied that it may be done safely
and that it would be in the public interest, he or she may terminate
a conservatorship and permit the licensee for whom a conservator was
appointed to resume the transaction of its business under the
direction of its board, subject to any terms, conditions,
restrictions, and limitations as the commissioner may prescribe.
315.6. The conservator of a licensee that has been permitted to
resume accepting member shares or deposits shall first cause a notice
to be published in a newspaper of local circulation. The notice
shall state the date on which the affairs of the licensee will be
returned to its board and that the provisions of Section 315.4 will
not be effective after 30 days from that date. The form of the notice
and the newspaper in which the same is to be published shall be
first approved by the commissioner. On the date of the publication of
the notice, the conservator shall mail a copy of the notice to every
person who made any deposit in the licensee after the date of the
appointment of the conservator. The conservator shall address the
copy of the notice to the persons who have made the deposits at the
addresses appearing upon the books of the licensee. The conservator
shall also mail a similar notice to every person making a deposit in
the licensee after the date of the publication of the notice and
before the affairs of the licensee are returned to its board.
315.7. The commissioner may assess and collect from all licensees
for whom a conservator is appointed their ratable share of the costs
incurred in the administration of this article.
315.8. Any licensee that the commissioner has taken possession of
pursuant to Section 302, and for which a conservator has been
appointed pursuant to this article, may be reorganized under a plan
that requires the consent of any of the following:
(a) Customers and other creditors of the licensee representing at
least 75 percent in amount of its total member shares or deposits and
other liabilities as shown by the books of the licensee, excluding
member shares or deposits and other liabilities which are to be
satisfied in full under the provisions of the plan.
(b) Stockholders owning at least two-thirds of the outstanding
stock as shown by the books of the licensee.
(c) Members of the licensee.
(d) Customers and other creditors of the licensee representing at
least 75 percent in amount of its total shares or deposits and other
liabilities as shown by the books of the licensee, excluding shares
or deposits and other liabilities that are to be satisfied in full
under the provisions of the plan, and, if applicable to the licensee,
of stockholders owning at least two-thirds of its outstanding stock
as shown by the books of the licensee.
315.9. All customers, creditors, stockholders, if applicable, and
other interested persons shall be given notice of any proposed plan
of reorganization in the manner and at the times as the commissioner
directs.
315.10. No plan of reorganization shall become effective until the
commissioner finds that the plan is fair and equitable to all
customers, creditors, and stockholders, if applicable, and is in the
public interest and until the commissioner approves the same in
writing, subject to any conditions, restrictions, and limitations as
the commissioner may prescribe.
315.11. No creditor having security for the payment of his, her, or
its claim shall be affected in his, her, or its right to enforce the
security by the provisions of any plan for the reorganization of the
licensee. Any plan of reorganization involving the reduction of
claims of creditors shall apply only to that portion of a secured
creditor's loan that is not covered by the pledged security.
315.12. When any plan of reorganization becomes effective, all
books, records, and assets of the licensee shall be disposed of in
accordance with the provisions of the plan and the affairs of the
licensee shall be conducted by its board in the manner provided by
the plan and under the conditions, restrictions, and limitations that
may have been prescribed by the commissioner. When any plan of
reorganization adopted and approved as herein provided becomes
effective, all customers and other creditors and, if applicable,
stockholders of the licensee, whether or not they have consented to
the plan of reorganization, shall be fully and in all respects
subject to and bound by the plan's provisions and the claims of all
customers and other creditors shall be treated as if they had
consented to the plan of reorganization.
320. Upon taking possession of the property and business of a
licensee that does not have federal deposit or share insurance, the
commissioner may sell, compromise, or compound any bad or doubtful
debt owing the licensee for a principal sum not exceeding ten
thousand dollars ($10,000), upon those terms as the commissioner may
deem proper. If the principal sum thereof exceeds ten thousand
dollars ($10,000), the commissioner may compromise, compound, or sell
the debt upon those terms as the court may approve. If it appears
improbable that a recovery on a debt can be had, and that the costs
of an action to collect would be lost, and the principal sum thereof
does not exceed five hundred dollars ($500), the commissioner may
determine that no suit thereon shall be brought. If the principal sum
of that debt exceeds ten thousand dollars ($10,000), the
commissioner may determine that no suit thereon be brought after
obtaining approval of the court.
320.1. The commissioner may sell any real or personal property of
the licensee for cash or on credit and on any other terms and
conditions as the commissioner may deem proper, subject to the
approval of the court.
320.2. (a) The commissioner may, with the approval of the court,
sell any part or the whole of the business of a licensee to any other
licensee. The purchase and sale shall be approved by the purchasing
licensee, as follows:
(1) If the purchasing licensee is organized under the laws of this
state, by two-thirds of all of its directors.
(2) If the licensee is any licensee other than a licensee
organized under the laws of this state, in accordance with the laws
of the jurisdiction under which the licensee is organized.
(b) (1) Subject to any applicable federal statutes and
regulations, any bank or credit union organized under the laws of
this state may, with the approval of two-thirds of all of its
directors and of the commissioner, purchase from the receiver of a
national banking association or a federal credit union the whole or
any part of the business of the national banking association or
federal credit union.
(2) Subject to any applicable federal statutes and regulations and
any applicable laws of the jurisdiction under which a foreign
corporation is organized, any foreign corporation or any office of a
foreign corporation that is licensed by the commissioner to transact
business in this state and that is authorized to accept shares or
deposits in this state, may, with the approval of the commissioner,
purchase from the receiver of a national banking association or
federal credit union the whole or any part of the business of the
national banking association or federal credit union.
(c) The provisions of Chapter 12 (commencing with Section 1200)
and Chapter 13 (commencing with Section 1300) of Division 1 of Title
1 of the Corporations Code shall not apply to any purchase and sale
of the type described in subdivision (a) or (b).
(d) When a purchase and sale of the type described in subdivision
(a) or (b) becomes effective, the purchasing licensee shall, by
operation of law and without further transfer, substitution, act, or
deed, to the extent provided in the agreement of the purchase and
sale or in the order of the court approving the purchase and sale and
except as withheld or limited by the agreement or by the order:
(1) Succeed to the rights, obligations, properties, assets,
investments, shares, deposits, demands, and agreements of the
licensee whose business is sold, subject to the right of every
customer of the licensee whose shares or deposit is sold to withdraw
his or her shares or deposit in full on demand after the sale,
irrespective of the terms under which the deposit was made.
(2) Succeed to the rights, obligations, properties, assets,
investments, shares, deposits, demands, and agreements of the whose
business is sold under all trusts, executorships, administrations,
guardianships, conservatorships, agencies, and other fiduciary or
representative capacities, to the same extent as though the
purchasing licensee had originally assumed, acquired, or owned the
same, subject to the rights of trustors and beneficiaries under the
trusts so sold to nominate another or succeeding trustee of the trust
so sold after the sale.
(3) Succeed to and be entitled to take and execute the appointment
to executorships, trusteeships, guardianships, conservatorships, and
other fiduciary and representative capacities to which the licensee
whose business is sold is or may be named in wills, whenever
probated, or to which it is or may be named or appointed by any other
instrument.
(e) For purposes of subdivision (d), any purchase and sale of the
type referred to in subdivision (d) shall be deemed to be effective
at the time provided in the agreement of the purchase and sale or in
the order of the court approving the purchase and sale.
320.3. Within six months after taking possession of the property
and business of any licensee that does not have federal deposit or
share insurance, the commissioner may terminate or adopt any
executory contract to which the licensee may be a party, including
leases of real or personal property. Claims for damages resulting
from the termination of any contract or lease may be filed and
allowed, but no claim of a landlord for damages resulting from the
rejection of an unexpired lease of real property or under any
covenant of the lease shall be allowed in an amount exceeding the
rent reserved by the lease, without acceleration, for the year
succeeding the date of the surrender of the premises plus the amount
of any unpaid accrued rent without acceleration. Any claim shall be
filed within 30 days of the date of the termination or within the
time that claims are to be filed under Section 320.10, whichever is
longer.
320.4. The commissioner, in his or her own name or in the name of
the licensee, may execute, acknowledge, and deliver any and all
conveyances and other instruments necessary or appropriate to
effectuate the sale of any real or personal property or to effectuate
any other transaction in connection with the liquidation of a
licensee or the distribution of its assets. Any conveyance or other
instrument executed by the commissioner pursuant to this authority
shall be valid and effectual for all purposes as though the same had
been executed by the officers of the licensee by authority of its
board of directors. Whenever the commissioner sells any real property
of the licensee a certified copy of the order of the court approving
the sale shall be recorded in the county in which any part of the
real property is located.
320.5. The commissioner, in the name of the delinquent licensee or
in his or her own name, may prosecute and defend any and all actions
and other legal proceedings appropriate or necessary to the
liquidation of the licensee.
320.6. The commissioner from time to time shall deposit all moneys
coming into his or her hands in the course of the liquidation of the
licensee in one or more state banks or state credit unions and in the
event of the suspension or insolvency of the depositary shall be
preferred before all other deposits.
320.7. The commissioner shall make an inventory of the assets of
the licensee in duplicate and file one in the office of the
commissioner and one with the clerk of the county in which the head
office of the licensee is located to be filed with the papers in the
liquidation proceedings. The inventory shall be open for inspection
at all reasonable times.
320.8. When the time fixed for the presentation of claims has
expired, the commissioner shall make in duplicate a full and complete
list of all claims presented, including and specifying claims that
have been rejected by the commissioner, and a list of all claims of
customers as shown by the books or records of the licensee for which
claims have not yet been presented, and shall file one copy of the
list in the commissioner's office and one with the clerk of the
county in which the head office of the licensee is located to be
filed with the papers in the liquidation proceedings. Before each
application to the court for leave to declare a dividend, the
commissioner shall file a supplemental list of claims presented since
the last preceding list was filed, including and specifying any
claims that have been rejected by him or her. The list of claims and
of claims of customers as shown by the books or records of the
licensee shall be open for inspection at all reasonable times.
320.9. The commissioner shall cause notice to be given by
advertisement in any newspapers of general circulation as he or she
may select weekly for three consecutive months, calling on all
persons who have claims against the licensee to present the same to
the commissioner and make legal proof thereof at a place to be
specified therein and within four months of the date of the first
publication of the notice, which date shall be specified in the
notice. The notice shall also state that all claims other than those
of customers appearing upon the books or records of the licensee
shall be forever barred if not filed within the four months' period
and that all claims of customers appearing upon the books or records
of the licensee will be forever barred, except as herein provided, if
not filed prior to the filing of a petition for a final dividend.
The commissioner shall also mail a similar notice to all persons,
including customers whose names appear as creditors upon the books of
the licensee and whose addresses appear upon the books or records of
the licensee, and shall enclose therewith a printed form of notice
of claim.
320.10. All claims of every kind against the licensee or against
any property owned or held by the licensee shall be presented to the
commissioner in writing verified by the claimant or someone on his or
her behalf within four months of the date of the first publication
of the notice to creditors. Any claim, other than the claim of a
customer whose claim appears upon the books or records of the
licensee, not presented within the four months' period shall be
forever barred and any claim of a customer whose claim appears upon
the books or records of the licensee that is not so presented prior
to the date of the filing of the petition of the commissioner with
the court for approval of the payment of the final dividend shall be
forever barred except as to any moneys remaining after all debts for
which claims were duly filed have been paid in full with interest. If
the commissioner doubts the validity of any claim, he or she may
reject the claim and serve notice of the rejection upon the claimant
either by mail or personally. An affidavit of the mailing or personal
service of the notice shall be prima facie evidence of the receipt
thereof and shall be filed with the commissioner. Any action upon a
rejected claim shall be brought within three months after the date of
mailing or personal service of the notice of rejection.
320.11. At any time and from time to time after the expiration of
the time fixed for the presentation of claims, the commissioner,
after obtaining approval of the court, may declare and pay one or
more dividends upon all approved claims out of the funds remaining in
his or her hands after the payment of expenses and after setting
aside an amount sufficient to pay to all customers, who have not yet
filed claims but whose claims appear upon the books or records of the
licensee, their pro rata share of the funds then available for the
payment of a dividend. At any time after the expiration of one year
from the date of the first publication of notice to creditors and
after obtaining the approval of the court, the commissioner may
declare and pay a final dividend.
320.12. (a) Expenses and claims of unsecured creditors have
priority in the following order:
(1) Expenses of liquidation and approved claims for fees and
assessments due the department.
(2) Approved claims given priority under other provisions of state
or federal law, including, but not limited to, Sections 320.6 and
330.
(3) Approved claims for "deposits," as that term is defined in 12
U.S.C. Section 1813(l), but including obligations of the type
described in 12 U.S.C. Section 1813(l)(5)(A) and (B).
(4) Approved claims for other general liabilities.
(5) Approved claims for obligations subordinated to deposits and
other general liabilities.
(b) Interest shall be given the same priority as the claim on
which it is based, but no interest shall be paid on any claim until
the principal of all claims within the same class has been paid or
adequately provided for in full.
(c) Any funds remaining shall be paid to the members or
shareholders, as appropriate.
320.13. Objections to any claim not rejected by the commissioner
may be made by any person interested by filing a copy of the
objection with the commissioner, who shall present the copy to the
court at the time of the next application for approval of the
declaration of a dividend. The court shall thereupon dispose of the
objections or may order a reference for that purpose, and should the
objections to any claim be sustained by the court or by the referee,
the claim shall not be allowed by the commissioner until the claimant
has established the claim by judgment.
320.14. Dividends remaining unpaid and any sums available for
payment of shares or deposits for which no claim was filed, which
remain in the hands of the commissioner six months after the order
for the payment of a final dividend, shall be deposited in the State
Treasury. The shares or deposits shall be deemed to have been
received under 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 other disposition as provided in that chapter. The
commissioner may pay over the moneys held by him or her to the
persons respectively entitled thereto at any time prior to depositing
the shares or deposits in the State Treasury, upon being furnished
satisfactory evidence of the persons' right to the same.
320.15. Whenever, under the provisions of this article, the
commissioner is required to transmit unclaimed money or other
unclaimed property to any state officer for deposit in the State
Treasury, the commissioner, upon request of the Controller, shall
transmit to the Controller all signature cards and any other
identifying information available from the records of the licensee,
covering the money or other property. Upon receipt by the Controller
of the signature cards or other identifying information, the licensee
and the commissioner shall be relieved of all responsibility
therefor. The signature cards and other identifying information may
be destroyed or otherwise disposed of by the Controller whenever, in
his or her discretion, their further retention by him or her is no
longer required in the interest of the customers or the state.
320.16. All approved claims of customers and other creditors shall
bear interest at the rate provided by law on judgments from the date
that the commissioner takes possession of the property and business
of the licensee.
320.17. If the licensee has in its possession for safekeeping or
storage any jewelry, plate, money, specie, bullion, stocks, bonds,
securities, valuable papers, or other valuable personal property, or
has rented any vaults, safes, or safe-deposit boxes, the commissioner
shall cause to be mailed, by registered mail, postage prepaid, to
any known person claiming to be or appearing on the books of the
licensee to be the owner of the property or to the person in whose
name the safe, vault, or box stands a notice notifying the person to
remove all of the personal property within a specified fixed period
of not less than 60 days.
320.18. On the last day fixed in the notice for the removal of the
property or on the date when the property is removed or the box
surrendered, any contract between the person owning the property or
holding the box and the licensee shall cease and the amount of the
unearned prepaid rent or charges, if any, shall become a debt of the
licensee to the person.
320.19. If any property is not removed within the time fixed by the
notice mailed by the commissioner, the commissioner may dispose of
the property as the court, on application thereto, shall direct. The
commissioner may cause any safe, vault, or box to be opened in his or
her presence or in the presence of one of the special deputy
commissioners and of a notary not an officer or employee of the
licensee or of the commissioner. The contents thereof, if any, shall
be sealed by the notary in a package upon which the notary shall
distinctly mark the name and address of the person in whose name the
safe or box stands upon the books of the licensee and shall attach
thereon a list and a description of the property within the package.
The package so sealed and addressed, together with the list and
description may be kept by the commissioner in one or more of the
safes or boxes of the licensee or elsewhere until delivered to the
person whose name it bears or until otherwise disposed of as directed
by the court.
320.20. (a) When the commissioner has completed the liquidation of
the licensee, he or she shall petition the court for an order
declaring the licensee duly wound up and dissolved.
(b) After any notice as the court may direct and a hearing, the
court may make an order declaring the licensee duly wound up and
dissolved. The order shall declare all of the following:
(1) The licensee has been duly wound up.
(2) A final franchise tax return, if any, as described by Section
23332 of the Revenue and Taxation Code, has been filed with the
Franchise Tax Board as required under Part 10.2 (commencing with
Section 18401) of Division 2 of the Revenue and Taxation Code, and
any tax or penalty due under the Corporation Tax Law has been paid,
and the licensee's known debts and liabilities have been paid or
adequately provided for, or any taxes, penalties, debts, and
liabilities have been paid so far as the licensee's assets permitted,
as the case may be. If there are known debts or liabilities for the
payment of which adequate provision has been made, the order shall
describe the provision, setting forth any information necessary to
enable the creditor or other person to whom payment is to be made to
appear and claim payment of the debt or liability.
(3) All known assets of the licensee have been distributed to its
shareholders or wholly applied on account of the licensee's debts and
liabilities.
(4) The licensee is dissolved.
(c) The court may make additional orders and grant further relief
as it deems proper upon the evidence submitted.
(d) Upon the making of the order declaring the licensee dissolved,
the corporate existence of the licensee shall cease, except for the
purposes of any necessary further winding up.
(e) Upon the making of the order declaring the licensee dissolved,
the commissioner shall file with the Secretary of State a copy of
the order, certified by the clerk of the court.
320.21. Whenever this article requires court approval of any step
in the liquidation proceedings, approval shall be given after a
hearing upon notice as the court may direct. At the hearing, the
court may by order approve the actions of the commissioner for which
he or she has petitioned the court's approval or it may, by
appropriate order, otherwise direct the commissioner in the matter in
connection with which the petition was filed.
320.22. Whenever, in the opinion of the commissioner, the
liquidation or reorganization of any licensee taken in charge by him
or her would be facilitated, or the public interests and the
interests of customers or stockholders would be served, the
commissioner may borrow money on behalf of the licensee from any
federal agency authorized to lend money to receivers, trustees,
liquidating agents, or other agents or supervisory authorities in
charge of licensees that are closed or in process of liquidation and,
with approval of the court, the commissioner may secure any
borrowings by the pledge of the assets of the licensee in any manner
and amount the commissioner deems necessary, proper, or expedient.
325. Whenever any licensee is being liquidated or whenever the
trust business of any licensee has been discontinued and the licensee
has in its possession money or other property held by it in trust or
for safekeeping and the beneficiaries or persons entitled thereto
are unknown or cannot be found, the commissioner or the licensee,
upon obtaining approval of the superior court of the county in which
the liquidation proceedings are pending or in which the head office
of the licensee is situated, may do the following:
(a) In the case of money, deliver it to the Treasurer.
(b) In the case of other property, deliver it to the Controller
for deposit in the State Treasury.
325.1. Upon the delivery of any money to the Treasurer or upon the
delivery of any property to the Controller, a certified copy of the
order of the court approving the delivery shall be given to the
Controller, and upon the delivery of any money to the Treasurer a
notice giving the amount delivered shall be filed with the
Controller. Upon the receipt of any money or other properties, the
Treasurer or the Controller, as the case may be, shall issue a
receipt for the same and the receipt shall be deemed a voucher in
favor of the licensee to the same extent as though executed by the
beneficiary or other person entitled thereto.
325.2. All money or other property delivered to the Treasurer or
Controller pursuant to this article shall be deemed to be delivered
for deposit 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 other disposition as
provided in that chapter.
330. The holder or transferor of a negotiable instrument
transferred to a licensee for collection has a preferred claim in the
amount of the liability of the licensee on the instrument if the
instrument was forwarded to the licensee by any person or by any
other financial institution for collection and remittance, if payment
therefor has not been made and if the same has been collected either
in whole or in part by the licensee, unless the holder or transferor
is a voluntary depositor in the licensee and the proceeds of the
collection, at his or her request, have been credited by the licensee
to his or her account.
305.
305.1. Upon taking possession of the property and business of any
licensee, the commissioner has authority, and it is his or her duty,
to collect all moneys due to the licensee and to do other acts as are
necessary or expedient to collect, conserve, or protect the licensee'
s assets, property, and business, and he or she shall proceed to
conserve or liquidate the affairs of the licensee as provided in this
article.
305.2. No attachment shall be issued against the property of any
licensee subject to conservation or liquidation pursuant to this
article.
305.3. Upon taking possession of the property and business of any
licensee pursuant to Section 302, the commissioner may proceed to
liquidate or conserve the licensee in the manner provided by this
article.
305.4. Upon taking possession of the property and business of a
licensee pursuant to Section 302, the commissioner may tender to any
person or persons an appointment as conservator, liquidator,
receiver, or liquidating committee of the licensee.
305.5. The commissioner shall supervise the acts of the
conservator, liquidator, receiver, or liquidating committee appointed
under this article and may remove the conservator, liquidator,
receiver, or any or all members of the liquidating committee in his
or her discretion.
305.6. If required by the commissioner, the conservator,
liquidator, receiver, or members of the liquidating committee
appointed under this article shall provide proof of bond coverage
that extends to the conservator, liquidator, receiver, or members of
the liquidating committee. The bond shall include fraud, dishonesty,
and faithful performance coverage. The premium for that bond shall be
paid out of the assets of the licensee.
305.7. (a) If the commissioner retains possession of the assets of
the licensee for the purpose of liquidation or conservation, the
commissioner shall, to the extent possible, use the services of civil
service employees of the commissioner's office, and the attorneys
employed by the commissioner or the Department of Justice shall
render all necessary legal services, as the commissioner may request.
(b) The commissioner, from time to time, under his or her official
seal, may 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 him or her in the duties of conservation or of
liquidation and distribution. The certificate of appointment shall be
filed in the office of the commissioner and a certified copy in the
office of the clerk of the county in which the head office of the
licensee is located. The commissioner may employ counsel and procure
expert assistance and advice as may be necessary in the liquidation
and distribution of the assets of the licensee and for that purpose
may retain any of the officers or employees of the licensee as the
commissioner may deem necessary.
305.8. The compensation of civil service employees, special
deputies, counsel, and other employees and assistants appointed to
assist in the conservation or liquidation of any licensee and the
distribution of its assets and all expenses of supervision and
liquidation shall be fixed by the commissioner and shall be paid out
of the funds of the licensee in the hands of the commissioner. The
expenses of liquidation shall be reported to the court upon each
application for payment of a dividend.
305.9. If a licensee is not insured by a Federal Insurance Agency,
upon the commissioner taking possession of the business and property
of the licensee, the superior court of the State of California for
the county in which the head office of the licensee 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 article. All papers relating to the proceeding,
including copies of the certificate of appointment of any special
deputy and the inventories required to be filed, shall be filed and
be made a part of the record of the proceeding without the payment of
any additional fees. No damages may be awarded in the proceeding
but, if sought, may only be recovered in a separate action.
310. If the licensee whose property and business has been taken
pursuant to Section 302 is insured by a Federal Insurance Agency, the
commissioner may tender to the appropriate Federal Insurance Agency
an appointment as conservator, liquidator, or receiver of the
licensee. The commissioner shall determine whether the licensee whose
property and business has been taken shall be liquidated or
conserved. If the Federal Insurance Agency accepts the appointment,
the Federal Insurance Agency shall have, in addition to any powers
conferred by applicable federal law, the powers conferred on the
commissioner pursuant to this article.
310.1. The Federal Insurance Agency may be, and act as, a
conservator, liquidator, or receiver without bond.
310.2. If the Federal Insurance Agency accepts the appointment in
accordance with Section 310.1, the rights of customers and other
creditors of the insured licensee shall be determined in accordance
with the applicable provisions of the laws of this state.
310.3. The Federal Insurance Agency conservator, liquidator, or
receiver shall possess with respect to the insured licensee all the
powers, rights, and privileges given the commissioner under this
article with respect to the conservation or liquidation of a
licensee, as appropriate, and the property and assets of which he or
she has taken possession, except insofar as the same may be in
conflict with the provisions of applicable federal law.
310.4. (a) The commissioner may sell to any other licensee any part
or the whole of the business of a licensee that is subject to
liquidation or conservatorship. The purchase and sale shall be
approved by the purchasing licensee, as follows:
(1) If the purchasing licensee is organized under the laws of this
state, by two-thirds of all of its directors.
(2) If the licensee is any licensee other than a licensee
organized under the laws of this state, in accordance with the laws
of the jurisdiction under which the licensee is organized.
(b) (1) Subject to any applicable federal statutes and
regulations, any bank or credit union organized under the laws of
this state may, with the approval of two-thirds of all of its
directors, purchase from the receiver of a national banking
association or a federal credit union the whole or any part of the
business of the national banking association or federal credit union.
(2) Subject to any applicable federal statutes and regulations and
any applicable laws of the jurisdiction under which a foreign
corporation is organized, any foreign corporation or office of a
foreign corporation that is licensed by the commissioner to transact
business in this state and that is authorized to accept shares or
deposits in this state, may purchase from the receiver of a national
banking association or federal credit union the whole or any part of
the business of the national banking association or federal credit
union.
(c) The provisions of Chapter 12 (commencing with Section 1200)
and Chapter 13 (commencing with Section 1300) of Division 1 of Title
1 of the Corporations Code shall not apply to any purchase and sale
of the type described in subdivision (a) or (b).
(d) When a purchase and sale of the type described in subdivision
(a) or (b) becomes effective, the licensee shall, ipso facto and by
operation of law and without further transfer, substitution, act, or
deed, to the extent provided in the agreement of the purchase and
sale or in the order of the court approving the purchase and sale and
except as withheld or limited by the agreement or by the order:
(1) Succeed to the rights, obligations, properties, assets,
investments, shares, deposits, demands, and agreements of the
licensee whose business is sold, subject to the right of every
customer of a licensee to withdraw his or her shares or deposit in
full on demand after the sale, irrespective of the terms under which
the share or deposit was made.
(2) Succeed to the rights, obligations, properties, assets,
investments, shares, deposits, demands, and agreements of the
licensee whose business is sold under all trusts, executorships,
administrations, guardianships, conservatorships, agencies, and other
fiduciary or representative capacities, to the same extent as though
the purchasing licensee had originally assumed, acquired, or owned
the same, subject to the rights of trustors and beneficiaries under
the trusts so sold to nominate another or succeeding trustee of the
trust so sold after the sale.
(3) Succeed to and be entitled to take and execute the appointment
to executorships, trusteeships, guardianships, conservatorships, and
other fiduciary and representative capacities to which the licensee
whose business is sold is or may be named in wills, whenever
probated, or to which it is or may be named or appointed by any other
instrument.
(e) For purposes of subdivision (d), any purchase and sale of the
type referred to in subdivision (d) shall be deemed to be effective
at the time provided in the agreement of the purchase and sale or in
the order of the court approving the purchase and sale.
315. Whenever the commissioner deems it necessary in order to
conserve the assets of any licensee that does not have federal
deposit or share insurance for the benefit of the customers and other
creditors, he or she may appoint a conservator of the licensee and
require the conservator to post a bond as the commissioner deems
proper. The conservator, under the direction of the commissioner,
shall take possession of the books, records, and assets of every
description of the licensee and take any action as the conservator
may deem necessary to conserve the assets of the licensee pending
further disposition of its business.
315.1. A conservator appointed in accordance with Section 315 has
all of the powers and rights with relation to the business and the
property of the licensee for which he or she is appointed conservator
as are possessed by the commissioner under this article with
relation to a licensee of which the commissioner has taken
possession, and the conservator is subject to the same obligations as
are imposed upon the commissioner under this article. During the
time that the conservator remains in possession of the licensee the
rights of the licensee, and of all persons with respect thereto,
subject to the other provisions of this article, are the same as if
the commissioner had taken possession of the property and business of
the licensee for the purposes of liquidation. All expenses of the
conservatorship shall be paid out of the assets of the licensee and
shall be a lien thereon which shall be prior to any other lien. The
conservator shall receive a salary in an amount no greater than that
which would be paid by the commissioner to a special deputy in charge
of the liquidation of a licensee.
315.2. The commissioner may order an examination at the earliest
possible date of a licensee for which the commissioner has appointed
a conservator.
315.3. While any licensee is in the hands of a conservator, the
commissioner may require the conservator to set aside and make
available for withdrawal by customers and for payment to other
creditors on a ratable basis such amounts as in the opinion of the
commissioner may safely be used for that purpose.
315.4. The commissioner, in his or her discretion, may permit the
conservator to receive shares or deposits, but any shares or deposits
received while the licensee is in the hands of a conservator shall
be held as trust funds and shall not be subject to any limitation as
to payment or withdrawal. The shares or deposits shall be segregated
and shall not be used to liquidate any indebtedness of the licensee
existing at the time the conservator was appointed or for the payment
of any later indebtedness incurred for the purpose of liquidating
any indebtedness of the licensee existing at the time the conservator
was appointed. The shares or deposits shall be kept on hand in cash,
invested in direct obligations of the United States, or deposited
with the Federal Reserve Bank.
315.5. If the commissioner is satisfied that it may be done safely
and that it would be in the public interest, he or she may terminate
a conservatorship and permit the licensee for whom a conservator was
appointed to resume the transaction of its business under the
direction of its board, subject to any terms, conditions,
restrictions, and limitations as the commissioner may prescribe.
315.6. The conservator of a licensee that has been permitted to
resume accepting member shares or deposits shall first cause a notice
to be published in a newspaper of local circulation. The notice
shall state the date on which the affairs of the licensee will be
returned to its board and that the provisions of Section 315.4 will
not be effective after 30 days from that date. The form of the notice
and the newspaper in which the same is to be published shall be
first approved by the commissioner. On the date of the publication of
the notice, the conservator shall mail a copy of the notice to every
person who made any deposit in the licensee after the date of the
appointment of the conservator. The conservator shall address the
copy of the notice to the persons who have made the deposits at the
addresses appearing upon the books of the licensee. The conservator
shall also mail a similar notice to every person making a deposit in
the licensee after the date of the publication of the notice and
before the affairs of the licensee are returned to its board.
315.7. The commissioner may assess and collect from all licensees
for whom a conservator is appointed their ratable share of the costs
incurred in the administration of this article.
315.8. Any licensee that the commissioner has taken possession of
pursuant to Section 302, and for which a conservator has been
appointed pursuant to this article, may be reorganized under a plan
that requires the consent of any of the following:
(a) Customers and other creditors of the licensee representing at
least 75 percent in amount of its total member shares or deposits and
other liabilities as shown by the books of the licensee, excluding
member shares or deposits and other liabilities which are to be
satisfied in full under the provisions of the plan.
(b) Stockholders owning at least two-thirds of the outstanding
stock as shown by the books of the licensee.
(c) Members of the licensee.
(d) Customers and other creditors of the licensee representing at
least 75 percent in amount of its total shares or deposits and other
liabilities as shown by the books of the licensee, excluding shares
or deposits and other liabilities that are to be satisfied in full
under the provisions of the plan, and, if applicable to the licensee,
of stockholders owning at least two-thirds of its outstanding stock
as shown by the books of the licensee.
315.9. All customers, creditors, stockholders, if applicable, and
other interested persons shall be given notice of any proposed plan
of reorganization in the manner and at the times as the commissioner
directs.
315.10. No plan of reorganization shall become effective until the
commissioner finds that the plan is fair and equitable to all
customers, creditors, and stockholders, if applicable, and is in the
public interest and until the commissioner approves the same in
writing, subject to any conditions, restrictions, and limitations as
the commissioner may prescribe.
315.11. No creditor having security for the payment of his, her, or
its claim shall be affected in his, her, or its right to enforce the
security by the provisions of any plan for the reorganization of the
licensee. Any plan of reorganization involving the reduction of
claims of creditors shall apply only to that portion of a secured
creditor's loan that is not covered by the pledged security.
315.12. When any plan of reorganization becomes effective, all
books, records, and assets of the licensee shall be disposed of in
accordance with the provisions of the plan and the affairs of the
licensee shall be conducted by its board in the manner provided by
the plan and under the conditions, restrictions, and limitations that
may have been prescribed by the commissioner. When any plan of
reorganization adopted and approved as herein provided becomes
effective, all customers and other creditors and, if applicable,
stockholders of the licensee, whether or not they have consented to
the plan of reorganization, shall be fully and in all respects
subject to and bound by the plan's provisions and the claims of all
customers and other creditors shall be treated as if they had
consented to the plan of reorganization.
320. Upon taking possession of the property and business of a
licensee that does not have federal deposit or share insurance, the
commissioner may sell, compromise, or compound any bad or doubtful
debt owing the licensee for a principal sum not exceeding ten
thousand dollars ($10,000), upon those terms as the commissioner may
deem proper. If the principal sum thereof exceeds ten thousand
dollars ($10,000), the commissioner may compromise, compound, or sell
the debt upon those terms as the court may approve. If it appears
improbable that a recovery on a debt can be had, and that the costs
of an action to collect would be lost, and the principal sum thereof
does not exceed five hundred dollars ($500), the commissioner may
determine that no suit thereon shall be brought. If the principal sum
of that debt exceeds ten thousand dollars ($10,000), the
commissioner may determine that no suit thereon be brought after
obtaining approval of the court.
320.1. The commissioner may sell any real or personal property of
the licensee for cash or on credit and on any other terms and
conditions as the commissioner may deem proper, subject to the
approval of the court.
320.2. (a) The commissioner may, with the approval of the court,
sell any part or the whole of the business of a licensee to any other
licensee. The purchase and sale shall be approved by the purchasing
licensee, as follows:
(1) If the purchasing licensee is organized under the laws of this
state, by two-thirds of all of its directors.
(2) If the licensee is any licensee other than a licensee
organized under the laws of this state, in accordance with the laws
of the jurisdiction under which the licensee is organized.
(b) (1) Subject to any applicable federal statutes and
regulations, any bank or credit union organized under the laws of
this state may, with the approval of two-thirds of all of its
directors and of the commissioner, purchase from the receiver of a
national banking association or a federal credit union the whole or
any part of the business of the national banking association or
federal credit union.
(2) Subject to any applicable federal statutes and regulations and
any applicable laws of the jurisdiction under which a foreign
corporation is organized, any foreign corporation or any office of a
foreign corporation that is licensed by the commissioner to transact
business in this state and that is authorized to accept shares or
deposits in this state, may, with the approval of the commissioner,
purchase from the receiver of a national banking association or
federal credit union the whole or any part of the business of the
national banking association or federal credit union.
(c) The provisions of Chapter 12 (commencing with Section 1200)
and Chapter 13 (commencing with Section 1300) of Division 1 of Title
1 of the Corporations Code shall not apply to any purchase and sale
of the type described in subdivision (a) or (b).
(d) When a purchase and sale of the type described in subdivision
(a) or (b) becomes effective, the purchasing licensee shall, by
operation of law and without further transfer, substitution, act, or
deed, to the extent provided in the agreement of the purchase and
sale or in the order of the court approving the purchase and sale and
except as withheld or limited by the agreement or by the order:
(1) Succeed to the rights, obligations, properties, assets,
investments, shares, deposits, demands, and agreements of the
licensee whose business is sold, subject to the right of every
customer of the licensee whose shares or deposit is sold to withdraw
his or her shares or deposit in full on demand after the sale,
irrespective of the terms under which the deposit was made.
(2) Succeed to the rights, obligations, properties, assets,
investments, shares, deposits, demands, and agreements of the whose
business is sold under all trusts, executorships, administrations,
guardianships, conservatorships, agencies, and other fiduciary or
representative capacities, to the same extent as though the
purchasing licensee had originally assumed, acquired, or owned the
same, subject to the rights of trustors and beneficiaries under the
trusts so sold to nominate another or succeeding trustee of the trust
so sold after the sale.
(3) Succeed to and be entitled to take and execute the appointment
to executorships, trusteeships, guardianships, conservatorships, and
other fiduciary and representative capacities to which the licensee
whose business is sold is or may be named in wills, whenever
probated, or to which it is or may be named or appointed by any other
instrument.
(e) For purposes of subdivision (d), any purchase and sale of the
type referred to in subdivision (d) shall be deemed to be effective
at the time provided in the agreement of the purchase and sale or in
the order of the court approving the purchase and sale.
320.3. Within six months after taking possession of the property
and business of any licensee that does not have federal deposit or
share insurance, the commissioner may terminate or adopt any
executory contract to which the licensee may be a party, including
leases of real or personal property. Claims for damages resulting
from the termination of any contract or lease may be filed and
allowed, but no claim of a landlord for damages resulting from the
rejection of an unexpired lease of real property or under any
covenant of the lease shall be allowed in an amount exceeding the
rent reserved by the lease, without acceleration, for the year
succeeding the date of the surrender of the premises plus the amount
of any unpaid accrued rent without acceleration. Any claim shall be
filed within 30 days of the date of the termination or within the
time that claims are to be filed under Section 320.10, whichever is
longer.
320.4. The commissioner, in his or her own name or in the name of
the licensee, may execute, acknowledge, and deliver any and all
conveyances and other instruments necessary or appropriate to
effectuate the sale of any real or personal property or to effectuate
any other transaction in connection with the liquidation of a
licensee or the distribution of its assets. Any conveyance or other
instrument executed by the commissioner pursuant to this authority
shall be valid and effectual for all purposes as though the same had
been executed by the officers of the licensee by authority of its
board of directors. Whenever the commissioner sells any real property
of the licensee a certified copy of the order of the court approving
the sale shall be recorded in the county in which any part of the
real property is located.
320.5. The commissioner, in the name of the delinquent licensee or
in his or her own name, may prosecute and defend any and all actions
and other legal proceedings appropriate or necessary to the
liquidation of the licensee.
320.6. The commissioner from time to time shall deposit all moneys
coming into his or her hands in the course of the liquidation of the
licensee in one or more state banks or state credit unions and in the
event of the suspension or insolvency of the depositary shall be
preferred before all other deposits.
320.7. The commissioner shall make an inventory of the assets of
the licensee in duplicate and file one in the office of the
commissioner and one with the clerk of the county in which the head
office of the licensee is located to be filed with the papers in the
liquidation proceedings. The inventory shall be open for inspection
at all reasonable times.
320.8. When the time fixed for the presentation of claims has
expired, the commissioner shall make in duplicate a full and complete
list of all claims presented, including and specifying claims that
have been rejected by the commissioner, and a list of all claims of
customers as shown by the books or records of the licensee for which
claims have not yet been presented, and shall file one copy of the
list in the commissioner's office and one with the clerk of the
county in which the head office of the licensee is located to be
filed with the papers in the liquidation proceedings. Before each
application to the court for leave to declare a dividend, the
commissioner shall file a supplemental list of claims presented since
the last preceding list was filed, including and specifying any
claims that have been rejected by him or her. The list of claims and
of claims of customers as shown by the books or records of the
licensee shall be open for inspection at all reasonable times.
320.9. The commissioner shall cause notice to be given by
advertisement in any newspapers of general circulation as he or she
may select weekly for three consecutive months, calling on all
persons who have claims against the licensee to present the same to
the commissioner and make legal proof thereof at a place to be
specified therein and within four months of the date of the first
publication of the notice, which date shall be specified in the
notice. The notice shall also state that all claims other than those
of customers appearing upon the books or records of the licensee
shall be forever barred if not filed within the four months' period
and that all claims of customers appearing upon the books or records
of the licensee will be forever barred, except as herein provided, if
not filed prior to the filing of a petition for a final dividend.
The commissioner shall also mail a similar notice to all persons,
including customers whose names appear as creditors upon the books of
the licensee and whose addresses appear upon the books or records of
the licensee, and shall enclose therewith a printed form of notice
of claim.
320.10. All claims of every kind against the licensee or against
any property owned or held by the licensee shall be presented to the
commissioner in writing verified by the claimant or someone on his or
her behalf within four months of the date of the first publication
of the notice to creditors. Any claim, other than the claim of a
customer whose claim appears upon the books or records of the
licensee, not presented within the four months' period shall be
forever barred and any claim of a customer whose claim appears upon
the books or records of the licensee that is not so presented prior
to the date of the filing of the petition of the commissioner with
the court for approval of the payment of the final dividend shall be
forever barred except as to any moneys remaining after all debts for
which claims were duly filed have been paid in full with interest. If
the commissioner doubts the validity of any claim, he or she may
reject the claim and serve notice of the rejection upon the claimant
either by mail or personally. An affidavit of the mailing or personal
service of the notice shall be prima facie evidence of the receipt
thereof and shall be filed with the commissioner. Any action upon a
rejected claim shall be brought within three months after the date of
mailing or personal service of the notice of rejection.
320.11. At any time and from time to time after the expiration of
the time fixed for the presentation of claims, the commissioner,
after obtaining approval of the court, may declare and pay one or
more dividends upon all approved claims out of the funds remaining in
his or her hands after the payment of expenses and after setting
aside an amount sufficient to pay to all customers, who have not yet
filed claims but whose claims appear upon the books or records of the
licensee, their pro rata share of the funds then available for the
payment of a dividend. At any time after the expiration of one year
from the date of the first publication of notice to creditors and
after obtaining the approval of the court, the commissioner may
declare and pay a final dividend.
320.12. (a) Expenses and claims of unsecured creditors have
priority in the following order:
(1) Expenses of liquidation and approved claims for fees and
assessments due the department.
(2) Approved claims given priority under other provisions of state
or federal law, including, but not limited to, Sections 320.6 and
330.
(3) Approved claims for "deposits," as that term is defined in 12
U.S.C. Section 1813(l), but including obligations of the type
described in 12 U.S.C. Section 1813(l)(5)(A) and (B).
(4) Approved claims for other general liabilities.
(5) Approved claims for obligations subordinated to deposits and
other general liabilities.
(b) Interest shall be given the same priority as the claim on
which it is based, but no interest shall be paid on any claim until
the principal of all claims within the same class has been paid or
adequately provided for in full.
(c) Any funds remaining shall be paid to the members or
shareholders, as appropriate.
320.13. Objections to any claim not rejected by the commissioner
may be made by any person interested by filing a copy of the
objection with the commissioner, who shall present the copy to the
court at the time of the next application for approval of the
declaration of a dividend. The court shall thereupon dispose of the
objections or may order a reference for that purpose, and should the
objections to any claim be sustained by the court or by the referee,
the claim shall not be allowed by the commissioner until the claimant
has established the claim by judgment.
320.14. Dividends remaining unpaid and any sums available for
payment of shares or deposits for which no claim was filed, which
remain in the hands of the commissioner six months after the order
for the payment of a final dividend, shall be deposited in the State
Treasury. The shares or deposits shall be deemed to have been
received under 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 other disposition as provided in that chapter. The
commissioner may pay over the moneys held by him or her to the
persons respectively entitled thereto at any time prior to depositing
the shares or deposits in the State Treasury, upon being furnished
satisfactory evidence of the persons' right to the same.
320.15. Whenever, under the provisions of this article, the
commissioner is required to transmit unclaimed money or other
unclaimed property to any state officer for deposit in the State
Treasury, the commissioner, upon request of the Controller, shall
transmit to the Controller all signature cards and any other
identifying information available from the records of the licensee,
covering the money or other property. Upon receipt by the Controller
of the signature cards or other identifying information, the licensee
and the commissioner shall be relieved of all responsibility
therefor. The signature cards and other identifying information may
be destroyed or otherwise disposed of by the Controller whenever, in
his or her discretion, their further retention by him or her is no
longer required in the interest of the customers or the state.
320.16. All approved claims of customers and other creditors shall
bear interest at the rate provided by law on judgments from the date
that the commissioner takes possession of the property and business
of the licensee.
320.17. If the licensee has in its possession for safekeeping or
storage any jewelry, plate, money, specie, bullion, stocks, bonds,
securities, valuable papers, or other valuable personal property, or
has rented any vaults, safes, or safe-deposit boxes, the commissioner
shall cause to be mailed, by registered mail, postage prepaid, to
any known person claiming to be or appearing on the books of the
licensee to be the owner of the property or to the person in whose
name the safe, vault, or box stands a notice notifying the person to
remove all of the personal property within a specified fixed period
of not less than 60 days.
320.18. On the last day fixed in the notice for the removal of the
property or on the date when the property is removed or the box
surrendered, any contract between the person owning the property or
holding the box and the licensee shall cease and the amount of the
unearned prepaid rent or charges, if any, shall become a debt of the
licensee to the person.
320.19. If any property is not removed within the time fixed by the
notice mailed by the commissioner, the commissioner may dispose of
the property as the court, on application thereto, shall direct. The
commissioner may cause any safe, vault, or box to be opened in his or
her presence or in the presence of one of the special deputy
commissioners and of a notary not an officer or employee of the
licensee or of the commissioner. The contents thereof, if any, shall
be sealed by the notary in a package upon which the notary shall
distinctly mark the name and address of the person in whose name the
safe or box stands upon the books of the licensee and shall attach
thereon a list and a description of the property within the package.
The package so sealed and addressed, together with the list and
description may be kept by the commissioner in one or more of the
safes or boxes of the licensee or elsewhere until delivered to the
person whose name it bears or until otherwise disposed of as directed
by the court.
320.20. (a) When the commissioner has completed the liquidation of
the licensee, he or she shall petition the court for an order
declaring the licensee duly wound up and dissolved.
(b) After any notice as the court may direct and a hearing, the
court may make an order declaring the licensee duly wound up and
dissolved. The order shall declare all of the following:
(1) The licensee has been duly wound up.
(2) A final franchise tax return, if any, as described by Section
23332 of the Revenue and Taxation Code, has been filed with the
Franchise Tax Board as required under Part 10.2 (commencing with
Section 18401) of Division 2 of the Revenue and Taxation Code, and
any tax or penalty due under the Corporation Tax Law has been paid,
and the licensee's known debts and liabilities have been paid or
adequately provided for, or any taxes, penalties, debts, and
liabilities have been paid so far as the licensee's assets permitted,
as the case may be. If there are known debts or liabilities for the
payment of which adequate provision has been made, the order shall
describe the provision, setting forth any information necessary to
enable the creditor or other person to whom payment is to be made to
appear and claim payment of the debt or liability.
(3) All known assets of the licensee have been distributed to its
shareholders or wholly applied on account of the licensee's debts and
liabilities.
(4) The licensee is dissolved.
(c) The court may make additional orders and grant further relief
as it deems proper upon the evidence submitted.
(d) Upon the making of the order declaring the licensee dissolved,
the corporate existence of the licensee shall cease, except for the
purposes of any necessary further winding up.
(e) Upon the making of the order declaring the licensee dissolved,
the commissioner shall file with the Secretary of State a copy of
the order, certified by the clerk of the court.
320.21. Whenever this article requires court approval of any step
in the liquidation proceedings, approval shall be given after a
hearing upon notice as the court may direct. At the hearing, the
court may by order approve the actions of the commissioner for which
he or she has petitioned the court's approval or it may, by
appropriate order, otherwise direct the commissioner in the matter in
connection with which the petition was filed.
320.22. Whenever, in the opinion of the commissioner, the
liquidation or reorganization of any licensee taken in charge by him
or her would be facilitated, or the public interests and the
interests of customers or stockholders would be served, the
commissioner may borrow money on behalf of the licensee from any
federal agency authorized to lend money to receivers, trustees,
liquidating agents, or other agents or supervisory authorities in
charge of licensees that are closed or in process of liquidation and,
with approval of the court, the commissioner may secure any
borrowings by the pledge of the assets of the licensee in any manner
and amount the commissioner deems necessary, proper, or expedient.
325. Whenever any licensee is being liquidated or whenever the
trust business of any licensee has been discontinued and the licensee
has in its possession money or other property held by it in trust or
for safekeeping and the beneficiaries or persons entitled thereto
are unknown or cannot be found, the commissioner or the licensee,
upon obtaining approval of the superior court of the county in which
the liquidation proceedings are pending or in which the head office
of the licensee is situated, may do the following:
(a) In the case of money, deliver it to the Treasurer.
(b) In the case of other property, deliver it to the Controller
for deposit in the State Treasury.
325.1. Upon the delivery of any money to the Treasurer or upon the
delivery of any property to the Controller, a certified copy of the
order of the court approving the delivery shall be given to the
Controller, and upon the delivery of any money to the Treasurer a
notice giving the amount delivered shall be filed with the
Controller. Upon the receipt of any money or other properties, the
Treasurer or the Controller, as the case may be, shall issue a
receipt for the same and the receipt shall be deemed a voucher in
favor of the licensee to the same extent as though executed by the
beneficiary or other person entitled thereto.
325.2. All money or other property delivered to the Treasurer or
Controller pursuant to this article shall be deemed to be delivered
for deposit 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 other disposition as
provided in that chapter.
330. The holder or transferor of a negotiable instrument
transferred to a licensee for collection has a preferred claim in the
amount of the liability of the licensee on the instrument if the
instrument was forwarded to the licensee by any person or by any
other financial institution for collection and remittance, if payment
therefor has not been made and if the same has been collected either
in whole or in part by the licensee, unless the holder or transferor
is a voluntary depositor in the licensee and the proceeds of the
collection, at his or her request, have been credited by the licensee
to his or her account.
305.
305.1. Upon taking possession of the property and business of any
licensee, the commissioner has authority, and it is his or her duty,
to collect all moneys due to the licensee and to do other acts as are
necessary or expedient to collect, conserve, or protect the licensee'
s assets, property, and business, and he or she shall proceed to
conserve or liquidate the affairs of the licensee as provided in this
article.
305.2. No attachment shall be issued against the property of any
licensee subject to conservation or liquidation pursuant to this
article.
305.3. Upon taking possession of the property and business of any
licensee pursuant to Section 302, the commissioner may proceed to
liquidate or conserve the licensee in the manner provided by this
article.
305.4. Upon taking possession of the property and business of a
licensee pursuant to Section 302, the commissioner may tender to any
person or persons an appointment as conservator, liquidator,
receiver, or liquidating committee of the licensee.
305.5. The commissioner shall supervise the acts of the
conservator, liquidator, receiver, or liquidating committee appointed
under this article and may remove the conservator, liquidator,
receiver, or any or all members of the liquidating committee in his
or her discretion.
305.6. If required by the commissioner, the conservator,
liquidator, receiver, or members of the liquidating committee
appointed under this article shall provide proof of bond coverage
that extends to the conservator, liquidator, receiver, or members of
the liquidating committee. The bond shall include fraud, dishonesty,
and faithful performance coverage. The premium for that bond shall be
paid out of the assets of the licensee.
305.7. (a) If the commissioner retains possession of the assets of
the licensee for the purpose of liquidation or conservation, the
commissioner shall, to the extent possible, use the services of civil
service employees of the commissioner's office, and the attorneys
employed by the commissioner or the Department of Justice shall
render all necessary legal services, as the commissioner may request.
(b) The commissioner, from time to time, under his or her official
seal, may 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 him or her in the duties of conservation or of
liquidation and distribution. The certificate of appointment shall be
filed in the office of the commissioner and a certified copy in the
office of the clerk of the county in which the head office of the
licensee is located. The commissioner may employ counsel and procure
expert assistance and advice as may be necessary in the liquidation
and distribution of the assets of the licensee and for that purpose
may retain any of the officers or employees of the licensee as the
commissioner may deem necessary.
305.8. The compensation of civil service employees, special
deputies, counsel, and other employees and assistants appointed to
assist in the conservation or liquidation of any licensee and the
distribution of its assets and all expenses of supervision and
liquidation shall be fixed by the commissioner and shall be paid out
of the funds of the licensee in the hands of the commissioner. The
expenses of liquidation shall be reported to the court upon each
application for payment of a dividend.
305.9. If a licensee is not insured by a Federal Insurance Agency,
upon the commissioner taking possession of the business and property
of the licensee, the superior court of the State of California for
the county in which the head office of the licensee 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 article. All papers relating to the proceeding,
including copies of the certificate of appointment of any special
deputy and the inventories required to be filed, shall be filed and
be made a part of the record of the proceeding without the payment of
any additional fees. No damages may be awarded in the proceeding
but, if sought, may only be recovered in a separate action.
310. If the licensee whose property and business has been taken
pursuant to Section 302 is insured by a Federal Insurance Agency, the
commissioner may tender to the appropriate Federal Insurance Agency
an appointment as conservator, liquidator, or receiver of the
licensee. The commissioner shall determine whether the licensee whose
property and business has been taken shall be liquidated or
conserved. If the Federal Insurance Agency accepts the appointment,
the Federal Insurance Agency shall have, in addition to any powers
conferred by applicable federal law, the powers conferred on the
commissioner pursuant to this article.
310.1. The Federal Insurance Agency may be, and act as, a
conservator, liquidator, or receiver without bond.
310.2. If the Federal Insurance Agency accepts the appointment in
accordance with Section 310.1, the rights of customers and other
creditors of the insured licensee shall be determined in accordance
with the applicable provisions of the laws of this state.
310.3. The Federal Insurance Agency conservator, liquidator, or
receiver shall possess with respect to the insured licensee all the
powers, rights, and privileges given the commissioner under this
article with respect to the conservation or liquidation of a
licensee, as appropriate, and the property and assets of which he or
she has taken possession, except insofar as the same may be in
conflict with the provisions of applicable federal law.
310.4. (a) The commissioner may sell to any other licensee any part
or the whole of the business of a licensee that is subject to
liquidation or conservatorship. The purchase and sale shall be
approved by the purchasing licensee, as follows:
(1) If the purchasing licensee is organized under the laws of this
state, by two-thirds of all of its directors.
(2) If the licensee is any licensee other than a licensee
organized under the laws of this state, in accordance with the laws
of the jurisdiction under which the licensee is organized.
(b) (1) Subject to any applicable federal statutes and
regulations, any bank or credit union organized under the laws of
this state may, with the approval of two-thirds of all of its
directors, purchase from the receiver of a national banking
association or a federal credit union the whole or any part of the
business of the national banking association or federal credit union.
(2) Subject to any applicable federal statutes and regulations and
any applicable laws of the jurisdiction under which a foreign
corporation is organized, any foreign corporation or office of a
foreign corporation that is licensed by the commissioner to transact
business in this state and that is authorized to accept shares or
deposits in this state, may purchase from the receiver of a national
banking association or federal credit union the whole or any part of
the business of the national banking association or federal credit
union.
(c) The provisions of Chapter 12 (commencing with Section 1200)
and Chapter 13 (commencing with Section 1300) of Division 1 of Title
1 of the Corporations Code shall not apply to any purchase and sale
of the type described in subdivision (a) or (b).
(d) When a purchase and sale of the type described in subdivision
(a) or (b) becomes effective, the licensee shall, ipso facto and by
operation of law and without further transfer, substitution, act, or
deed, to the extent provided in the agreement of the purchase and
sale or in the order of the court approving the purchase and sale and
except as withheld or limited by the agreement or by the order:
(1) Succeed to the rights, obligations, properties, assets,
investments, shares, deposits, demands, and agreements of the
licensee whose business is sold, subject to the right of every
customer of a licensee to withdraw his or her shares or deposit in
full on demand after the sale, irrespective of the terms under which
the share or deposit was made.
(2) Succeed to the rights, obligations, properties, assets,
investments, shares, deposits, demands, and agreements of the
licensee whose business is sold under all trusts, executorships,
administrations, guardianships, conservatorships, agencies, and other
fiduciary or representative capacities, to the same extent as though
the purchasing licensee had originally assumed, acquired, or owned
the same, subject to the rights of trustors and beneficiaries under
the trusts so sold to nominate another or succeeding trustee of the
trust so sold after the sale.
(3) Succeed to and be entitled to take and execute the appointment
to executorships, trusteeships, guardianships, conservatorships, and
other fiduciary and representative capacities to which the licensee
whose business is sold is or may be named in wills, whenever
probated, or to which it is or may be named or appointed by any other
instrument.
(e) For purposes of subdivision (d), any purchase and sale of the
type referred to in subdivision (d) shall be deemed to be effective
at the time provided in the agreement of the purchase and sale or in
the order of the court approving the purchase and sale.
315. Whenever the commissioner deems it necessary in order to
conserve the assets of any licensee that does not have federal
deposit or share insurance for the benefit of the customers and other
creditors, he or she may appoint a conservator of the licensee and
require the conservator to post a bond as the commissioner deems
proper. The conservator, under the direction of the commissioner,
shall take possession of the books, records, and assets of every
description of the licensee and take any action as the conservator
may deem necessary to conserve the assets of the licensee pending
further disposition of its business.
315.1. A conservator appointed in accordance with Section 315 has
all of the powers and rights with relation to the business and the
property of the licensee for which he or she is appointed conservator
as are possessed by the commissioner under this article with
relation to a licensee of which the commissioner has taken
possession, and the conservator is subject to the same obligations as
are imposed upon the commissioner under this article. During the
time that the conservator remains in possession of the licensee the
rights of the licensee, and of all persons with respect thereto,
subject to the other provisions of this article, are the same as if
the commissioner had taken possession of the property and business of
the licensee for the purposes of liquidation. All expenses of the
conservatorship shall be paid out of the assets of the licensee and
shall be a lien thereon which shall be prior to any other lien. The
conservator shall receive a salary in an amount no greater than that
which would be paid by the commissioner to a special deputy in charge
of the liquidation of a licensee.
315.2. The commissioner may order an examination at the earliest
possible date of a licensee for which the commissioner has appointed
a conservator.
315.3. While any licensee is in the hands of a conservator, the
commissioner may require the conservator to set aside and make
available for withdrawal by customers and for payment to other
creditors on a ratable basis such amounts as in the opinion of the
commissioner may safely be used for that purpose.
315.4. The commissioner, in his or her discretion, may permit the
conservator to receive shares or deposits, but any shares or deposits
received while the licensee is in the hands of a conservator shall
be held as trust funds and shall not be subject to any limitation as
to payment or withdrawal. The shares or deposits shall be segregated
and shall not be used to liquidate any indebtedness of the licensee
existing at the time the conservator was appointed or for the payment
of any later indebtedness incurred for the purpose of liquidating
any indebtedness of the licensee existing at the time the conservator
was appointed. The shares or deposits shall be kept on hand in cash,
invested in direct obligations of the United States, or deposited
with the Federal Reserve Bank.
315.5. If the commissioner is satisfied that it may be done safely
and that it would be in the public interest, he or she may terminate
a conservatorship and permit the licensee for whom a conservator was
appointed to resume the transaction of its business under the
direction of its board, subject to any terms, conditions,
restrictions, and limitations as the commissioner may prescribe.
315.6. The conservator of a licensee that has been permitted to
resume accepting member shares or deposits shall first cause a notice
to be published in a newspaper of local circulation. The notice
shall state the date on which the affairs of the licensee will be
returned to its board and that the provisions of Section 315.4 will
not be effective after 30 days from that date. The form of the notice
and the newspaper in which the same is to be published shall be
first approved by the commissioner. On the date of the publication of
the notice, the conservator shall mail a copy of the notice to every
person who made any deposit in the licensee after the date of the
appointment of the conservator. The conservator shall address the
copy of the notice to the persons who have made the deposits at the
addresses appearing upon the books of the licensee. The conservator
shall also mail a similar notice to every person making a deposit in
the licensee after the date of the publication of the notice and
before the affairs of the licensee are returned to its board.
315.7. The commissioner may assess and collect from all licensees
for whom a conservator is appointed their ratable share of the costs
incurred in the administration of this article.
315.8. Any licensee that the commissioner has taken possession of
pursuant to Section 302, and for which a conservator has been
appointed pursuant to this article, may be reorganized under a plan
that requires the consent of any of the following:
(a) Customers and other creditors of the licensee representing at
least 75 percent in amount of its total member shares or deposits and
other liabilities as shown by the books of the licensee, excluding
member shares or deposits and other liabilities which are to be
satisfied in full under the provisions of the plan.
(b) Stockholders owning at least two-thirds of the outstanding
stock as shown by the books of the licensee.
(c) Members of the licensee.
(d) Customers and other creditors of the licensee representing at
least 75 percent in amount of its total shares or deposits and other
liabilities as shown by the books of the licensee, excluding shares
or deposits and other liabilities that are to be satisfied in full
under the provisions of the plan, and, if applicable to the licensee,
of stockholders owning at least two-thirds of its outstanding stock
as shown by the books of the licensee.
315.9. All customers, creditors, stockholders, if applicable, and
other interested persons shall be given notice of any proposed plan
of reorganization in the manner and at the times as the commissioner
directs.
315.10. No plan of reorganization shall become effective until the
commissioner finds that the plan is fair and equitable to all
customers, creditors, and stockholders, if applicable, and is in the
public interest and until the commissioner approves the same in
writing, subject to any conditions, restrictions, and limitations as
the commissioner may prescribe.
315.11. No creditor having security for the payment of his, her, or
its claim shall be affected in his, her, or its right to enforce the
security by the provisions of any plan for the reorganization of the
licensee. Any plan of reorganization involving the reduction of
claims of creditors shall apply only to that portion of a secured
creditor's loan that is not covered by the pledged security.
315.12. When any plan of reorganization becomes effective, all
books, records, and assets of the licensee shall be disposed of in
accordance with the provisions of the plan and the affairs of the
licensee shall be conducted by its board in the manner provided by
the plan and under the conditions, restrictions, and limitations that
may have been prescribed by the commissioner. When any plan of
reorganization adopted and approved as herein provided becomes
effective, all customers and other creditors and, if applicable,
stockholders of the licensee, whether or not they have consented to
the plan of reorganization, shall be fully and in all respects
subject to and bound by the plan's provisions and the claims of all
customers and other creditors shall be treated as if they had
consented to the plan of reorganization.
320. Upon taking possession of the property and business of a
licensee that does not have federal deposit or share insurance, the
commissioner may sell, compromise, or compound any bad or doubtful
debt owing the licensee for a principal sum not exceeding ten
thousand dollars ($10,000), upon those terms as the commissioner may
deem proper. If the principal sum thereof exceeds ten thousand
dollars ($10,000), the commissioner may compromise, compound, or sell
the debt upon those terms as the court may approve. If it appears
improbable that a recovery on a debt can be had, and that the costs
of an action to collect would be lost, and the principal sum thereof
does not exceed five hundred dollars ($500), the commissioner may
determine that no suit thereon shall be brought. If the principal sum
of that debt exceeds ten thousand dollars ($10,000), the
commissioner may determine that no suit thereon be brought after
obtaining approval of the court.
320.1. The commissioner may sell any real or personal property of
the licensee for cash or on credit and on any other terms and
conditions as the commissioner may deem proper, subject to the
approval of the court.
320.2. (a) The commissioner may, with the approval of the court,
sell any part or the whole of the business of a licensee to any other
licensee. The purchase and sale shall be approved by the purchasing
licensee, as follows:
(1) If the purchasing licensee is organized under the laws of this
state, by two-thirds of all of its directors.
(2) If the licensee is any licensee other than a licensee
organized under the laws of this state, in accordance with the laws
of the jurisdiction under which the licensee is organized.
(b) (1) Subject to any applicable federal statutes and
regulations, any bank or credit union organized under the laws of
this state may, with the approval of two-thirds of all of its
directors and of the commissioner, purchase from the receiver of a
national banking association or a federal credit union the whole or
any part of the business of the national banking association or
federal credit union.
(2) Subject to any applicable federal statutes and regulations and
any applicable laws of the jurisdiction under which a foreign
corporation is organized, any foreign corporation or any office of a
foreign corporation that is licensed by the commissioner to transact
business in this state and that is authorized to accept shares or
deposits in this state, may, with the approval of the commissioner,
purchase from the receiver of a national banking association or
federal credit union the whole or any part of the business of the
national banking association or federal credit union.
(c) The provisions of Chapter 12 (commencing with Section 1200)
and Chapter 13 (commencing with Section 1300) of Division 1 of Title
1 of the Corporations Code shall not apply to any purchase and sale
of the type described in subdivision (a) or (b).
(d) When a purchase and sale of the type described in subdivision
(a) or (b) becomes effective, the purchasing licensee shall, by
operation of law and without further transfer, substitution, act, or
deed, to the extent provided in the agreement of the purchase and
sale or in the order of the court approving the purchase and sale and
except as withheld or limited by the agreement or by the order:
(1) Succeed to the rights, obligations, properties, assets,
investments, shares, deposits, demands, and agreements of the
licensee whose business is sold, subject to the right of every
customer of the licensee whose shares or deposit is sold to withdraw
his or her shares or deposit in full on demand after the sale,
irrespective of the terms under which the deposit was made.
(2) Succeed to the rights, obligations, properties, assets,
investments, shares, deposits, demands, and agreements of the whose
business is sold under all trusts, executorships, administrations,
guardianships, conservatorships, agencies, and other fiduciary or
representative capacities, to the same extent as though the
purchasing licensee had originally assumed, acquired, or owned the
same, subject to the rights of trustors and beneficiaries under the
trusts so sold to nominate another or succeeding trustee of the trust
so sold after the sale.
(3) Succeed to and be entitled to take and execute the appointment
to executorships, trusteeships, guardianships, conservatorships, and
other fiduciary and representative capacities to which the licensee
whose business is sold is or may be named in wills, whenever
probated, or to which it is or may be named or appointed by any other
instrument.
(e) For purposes of subdivision (d), any purchase and sale of the
type referred to in subdivision (d) shall be deemed to be effective
at the time provided in the agreement of the purchase and sale or in
the order of the court approving the purchase and sale.
320.3. Within six months after taking possession of the property
and business of any licensee that does not have federal deposit or
share insurance, the commissioner may terminate or adopt any
executory contract to which the licensee may be a party, including
leases of real or personal property. Claims for damages resulting
from the termination of any contract or lease may be filed and
allowed, but no claim of a landlord for damages resulting from the
rejection of an unexpired lease of real property or under any
covenant of the lease shall be allowed in an amount exceeding the
rent reserved by the lease, without acceleration, for the year
succeeding the date of the surrender of the premises plus the amount
of any unpaid accrued rent without acceleration. Any claim shall be
filed within 30 days of the date of the termination or within the
time that claims are to be filed under Section 320.10, whichever is
longer.
320.4. The commissioner, in his or her own name or in the name of
the licensee, may execute, acknowledge, and deliver any and all
conveyances and other instruments necessary or appropriate to
effectuate the sale of any real or personal property or to effectuate
any other transaction in connection with the liquidation of a
licensee or the distribution of its assets. Any conveyance or other
instrument executed by the commissioner pursuant to this authority
shall be valid and effectual for all purposes as though the same had
been executed by the officers of the licensee by authority of its
board of directors. Whenever the commissioner sells any real property
of the licensee a certified copy of the order of the court approving
the sale shall be recorded in the county in which any part of the
real property is located.
320.5. The commissioner, in the name of the delinquent licensee or
in his or her own name, may prosecute and defend any and all actions
and other legal proceedings appropriate or necessary to the
liquidation of the licensee.
320.6. The commissioner from time to time shall deposit all moneys
coming into his or her hands in the course of the liquidation of the
licensee in one or more state banks or state credit unions and in the
event of the suspension or insolvency of the depositary shall be
preferred before all other deposits.
320.7. The commissioner shall make an inventory of the assets of
the licensee in duplicate and file one in the office of the
commissioner and one with the clerk of the county in which the head
office of the licensee is located to be filed with the papers in the
liquidation proceedings. The inventory shall be open for inspection
at all reasonable times.
320.8. When the time fixed for the presentation of claims has
expired, the commissioner shall make in duplicate a full and complete
list of all claims presented, including and specifying claims that
have been rejected by the commissioner, and a list of all claims of
customers as shown by the books or records of the licensee for which
claims have not yet been presented, and shall file one copy of the
list in the commissioner's office and one with the clerk of the
county in which the head office of the licensee is located to be
filed with the papers in the liquidation proceedings. Before each
application to the court for leave to declare a dividend, the
commissioner shall file a supplemental list of claims presented since
the last preceding list was filed, including and specifying any
claims that have been rejected by him or her. The list of claims and
of claims of customers as shown by the books or records of the
licensee shall be open for inspection at all reasonable times.
320.9. The commissioner shall cause notice to be given by
advertisement in any newspapers of general circulation as he or she
may select weekly for three consecutive months, calling on all
persons who have claims against the licensee to present the same to
the commissioner and make legal proof thereof at a place to be
specified therein and within four months of the date of the first
publication of the notice, which date shall be specified in the
notice. The notice shall also state that all claims other than those
of customers appearing upon the books or records of the licensee
shall be forever barred if not filed within the four months' period
and that all claims of customers appearing upon the books or records
of the licensee will be forever barred, except as herein provided, if
not filed prior to the filing of a petition for a final dividend.
The commissioner shall also mail a similar notice to all persons,
including customers whose names appear as creditors upon the books of
the licensee and whose addresses appear upon the books or records of
the licensee, and shall enclose therewith a printed form of notice
of claim.
320.10. All claims of every kind against the licensee or against
any property owned or held by the licensee shall be presented to the
commissioner in writing verified by the claimant or someone on his or
her behalf within four months of the date of the first publication
of the notice to creditors. Any claim, other than the claim of a
customer whose claim appears upon the books or records of the
licensee, not presented within the four months' period shall be
forever barred and any claim of a customer whose claim appears upon
the books or records of the licensee that is not so presented prior
to the date of the filing of the petition of the commissioner with
the court for approval of the payment of the final dividend shall be
forever barred except as to any moneys remaining after all debts for
which claims were duly filed have been paid in full with interest. If
the commissioner doubts the validity of any claim, he or she may
reject the claim and serve notice of the rejection upon the claimant
either by mail or personally. An affidavit of the mailing or personal
service of the notice shall be prima facie evidence of the receipt
thereof and shall be filed with the commissioner. Any action upon a
rejected claim shall be brought within three months after the date of
mailing or personal service of the notice of rejection.
320.11. At any time and from time to time after the expiration of
the time fixed for the presentation of claims, the commissioner,
after obtaining approval of the court, may declare and pay one or
more dividends upon all approved claims out of the funds remaining in
his or her hands after the payment of expenses and after setting
aside an amount sufficient to pay to all customers, who have not yet
filed claims but whose claims appear upon the books or records of the
licensee, their pro rata share of the funds then available for the
payment of a dividend. At any time after the expiration of one year
from the date of the first publication of notice to creditors and
after obtaining the approval of the court, the commissioner may
declare and pay a final dividend.
320.12. (a) Expenses and claims of unsecured creditors have
priority in the following order:
(1) Expenses of liquidation and approved claims for fees and
assessments due the department.
(2) Approved claims given priority under other provisions of state
or federal law, including, but not limited to, Sections 320.6 and
330.
(3) Approved claims for "deposits," as that term is defined in 12
U.S.C. Section 1813(l), but including obligations of the type
described in 12 U.S.C. Section 1813(l)(5)(A) and (B).
(4) Approved claims for other general liabilities.
(5) Approved claims for obligations subordinated to deposits and
other general liabilities.
(b) Interest shall be given the same priority as the claim on
which it is based, but no interest shall be paid on any claim until
the principal of all claims within the same class has been paid or
adequately provided for in full.
(c) Any funds remaining shall be paid to the members or
shareholders, as appropriate.
320.13. Objections to any claim not rejected by the commissioner
may be made by any person interested by filing a copy of the
objection with the commissioner, who shall present the copy to the
court at the time of the next application for approval of the
declaration of a dividend. The court shall thereupon dispose of the
objections or may order a reference for that purpose, and should the
objections to any claim be sustained by the court or by the referee,
the claim shall not be allowed by the commissioner until the claimant
has established the claim by judgment.
320.14. Dividends remaining unpaid and any sums available for
payment of shares or deposits for which no claim was filed, which
remain in the hands of the commissioner six months after the order
for the payment of a final dividend, shall be deposited in the State
Treasury. The shares or deposits shall be deemed to have been
received under 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 other disposition as provided in that chapter. The
commissioner may pay over the moneys held by him or her to the
persons respectively entitled thereto at any time prior to depositing
the shares or deposits in the State Treasury, upon being furnished
satisfactory evidence of the persons' right to the same.
320.15. Whenever, under the provisions of this article, the
commissioner is required to transmit unclaimed money or other
unclaimed property to any state officer for deposit in the State
Treasury, the commissioner, upon request of the Controller, shall
transmit to the Controller all signature cards and any other
identifying information available from the records of the licensee,
covering the money or other property. Upon receipt by the Controller
of the signature cards or other identifying information, the licensee
and the commissioner shall be relieved of all responsibility
therefor. The signature cards and other identifying information may
be destroyed or otherwise disposed of by the Controller whenever, in
his or her discretion, their further retention by him or her is no
longer required in the interest of the customers or the state.
320.16. All approved claims of customers and other creditors shall
bear interest at the rate provided by law on judgments from the date
that the commissioner takes possession of the property and business
of the licensee.
320.17. If the licensee has in its possession for safekeeping or
storage any jewelry, plate, money, specie, bullion, stocks, bonds,
securities, valuable papers, or other valuable personal property, or
has rented any vaults, safes, or safe-deposit boxes, the commissioner
shall cause to be mailed, by registered mail, postage prepaid, to
any known person claiming to be or appearing on the books of the
licensee to be the owner of the property or to the person in whose
name the safe, vault, or box stands a notice notifying the person to
remove all of the personal property within a specified fixed period
of not less than 60 days.
320.18. On the last day fixed in the notice for the removal of the
property or on the date when the property is removed or the box
surrendered, any contract between the person owning the property or
holding the box and the licensee shall cease and the amount of the
unearned prepaid rent or charges, if any, shall become a debt of the
licensee to the person.
320.19. If any property is not removed within the time fixed by the
notice mailed by the commissioner, the commissioner may dispose of
the property as the court, on application thereto, shall direct. The
commissioner may cause any safe, vault, or box to be opened in his or
her presence or in the presence of one of the special deputy
commissioners and of a notary not an officer or employee of the
licensee or of the commissioner. The contents thereof, if any, shall
be sealed by the notary in a package upon which the notary shall
distinctly mark the name and address of the person in whose name the
safe or box stands upon the books of the licensee and shall attach
thereon a list and a description of the property within the package.
The package so sealed and addressed, together with the list and
description may be kept by the commissioner in one or more of the
safes or boxes of the licensee or elsewhere until delivered to the
person whose name it bears or until otherwise disposed of as directed
by the court.
320.20. (a) When the commissioner has completed the liquidation of
the licensee, he or she shall petition the court for an order
declaring the licensee duly wound up and dissolved.
(b) After any notice as the court may direct and a hearing, the
court may make an order declaring the licensee duly wound up and
dissolved. The order shall declare all of the following:
(1) The licensee has been duly wound up.
(2) A final franchise tax return, if any, as described by Section
23332 of the Revenue and Taxation Code, has been filed with the
Franchise Tax Board as required under Part 10.2 (commencing with
Section 18401) of Division 2 of the Revenue and Taxation Code, and
any tax or penalty due under the Corporation Tax Law has been paid,
and the licensee's known debts and liabilities have been paid or
adequately provided for, or any taxes, penalties, debts, and
liabilities have been paid so far as the licensee's assets permitted,
as the case may be. If there are known debts or liabilities for the
payment of which adequate provision has been made, the order shall
describe the provision, setting forth any information necessary to
enable the creditor or other person to whom payment is to be made to
appear and claim payment of the debt or liability.
(3) All known assets of the licensee have been distributed to its
shareholders or wholly applied on account of the licensee's debts and
liabilities.
(4) The licensee is dissolved.
(c) The court may make additional orders and grant further relief
as it deems proper upon the evidence submitted.
(d) Upon the making of the order declaring the licensee dissolved,
the corporate existence of the licensee shall cease, except for the
purposes of any necessary further winding up.
(e) Upon the making of the order declaring the licensee dissolved,
the commissioner shall file with the Secretary of State a copy of
the order, certified by the clerk of the court.
320.21. Whenever this article requires court approval of any step
in the liquidation proceedings, approval shall be given after a
hearing upon notice as the court may direct. At the hearing, the
court may by order approve the actions of the commissioner for which
he or she has petitioned the court's approval or it may, by
appropriate order, otherwise direct the commissioner in the matter in
connection with which the petition was filed.
320.22. Whenever, in the opinion of the commissioner, the
liquidation or reorganization of any licensee taken in charge by him
or her would be facilitated, or the public interests and the
interests of customers or stockholders would be served, the
commissioner may borrow money on behalf of the licensee from any
federal agency authorized to lend money to receivers, trustees,
liquidating agents, or other agents or supervisory authorities in
charge of licensees that are closed or in process of liquidation and,
with approval of the court, the commissioner may secure any
borrowings by the pledge of the assets of the licensee in any manner
and amount the commissioner deems necessary, proper, or expedient.
325. Whenever any licensee is being liquidated or whenever the
trust business of any licensee has been discontinued and the licensee
has in its possession money or other property held by it in trust or
for safekeeping and the beneficiaries or persons entitled thereto
are unknown or cannot be found, the commissioner or the licensee,
upon obtaining approval of the superior court of the county in which
the liquidation proceedings are pending or in which the head office
of the licensee is situated, may do the following:
(a) In the case of money, deliver it to the Treasurer.
(b) In the case of other property, deliver it to the Controller
for deposit in the State Treasury.
325.1. Upon the delivery of any money to the Treasurer or upon the
delivery of any property to the Controller, a certified copy of the
order of the court approving the delivery shall be given to the
Controller, and upon the delivery of any money to the Treasurer a
notice giving the amount delivered shall be filed with the
Controller. Upon the receipt of any money or other properties, the
Treasurer or the Controller, as the case may be, shall issue a
receipt for the same and the receipt shall be deemed a voucher in
favor of the licensee to the same extent as though executed by the
beneficiary or other person entitled thereto.
325.2. All money or other property delivered to the Treasurer or
Controller pursuant to this article shall be deemed to be delivered
for deposit 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 other disposition as
provided in that chapter.
330. The holder or transferor of a negotiable instrument
transferred to a licensee for collection has a preferred claim in the
amount of the liability of the licensee on the instrument if the
instrument was forwarded to the licensee by any person or by any
other financial institution for collection and remittance, if payment
therefor has not been made and if the same has been collected either
in whole or in part by the licensee, unless the holder or transferor
is a voluntary depositor in the licensee and the proceeds of the
collection, at his or her request, have been credited by the licensee
to his or her account.
