658.43 Approval by office; valuation of assets; emergency action.
658.44 Approval by stockholders; rights of dissenters; preemptive rights.
658.45 Certificate of merger and effective date; effect on charters and powers.
658.48 Loans.
658.491 Commercial loans by financial institutions.
658.51 Banks authorized to make commodity loans.
658.53 Borrowing; limits of indebtedness.
658.60 Depositories of public moneys and pledge of assets.
658.67 Investment powers and limitations.
658.73 Fees and assessments.
658.79 Taking possession of insolvent state banks or trust companies.
658.80 Appointment of receiver or liquidator.
658.81 Office action; notice and court confirmation.
658.82 Receiver; powers and duties.
658.83 Liquidator; powers and duties.
658.84 Transfers by banks and other acts in contemplation of insolvency.
658.90 Receivers or liquidators under supervision of office.
658.94 Prima facie evidence.
658.95 Voluntary liquidation.
658.96 Procedure in voluntary liquidation.
658.995 Credit Card Bank Act.
658.12 Definitions.—Subject to other definitions contained in the financial institutions codes and unless the context otherwise requires:
(1) “Association” means an association as defined in s. 665.012.
(2) “Bank” means any person having a subsisting charter or other lawful authorization, under the laws of this or any other jurisdiction, authorizing such person to conduct a general commercial banking business. The term “bank” does not include a credit union or an association.
(3) “Banker’s bank” means a bank insured by the Federal Deposit Insurance Corporation, or a holding company which owns or controls such an insured bank, if a minimum of 75 percent of the stock of such bank or holding company is owned exclusively by other banks, the bank is organized solely to do business with other financial institutions, and the bank does not do business with the general public.
(4) “Branch” or “branch office” of a bank means any office or place of business of a bank, other than its main office and the facilities and operations authorized by ss. 658.26(4) and 660.33, at which deposits are received, checks are paid, or money is lent. With respect to a bank that has a trust department, the terms have the meanings herein ascribed to a branch or a branch office of a trust company and mean any office or place of business of a trust company, other than its main office and its trust service offices established pursuant to s. 660.33, where trust business is transacted with its customers.
(5) “Charter” of a bank or trust company means the lawful authority under the laws of this or any other jurisdiction to exist and conduct business as, and the franchise of, a bank or a trust company, as the case may be, and includes the written instrument however denominated or entitled which evidences such authority. When used as a verb, “charter” means the granting of such authority and franchise.
(6) “Community” means an incorporated city, town, or village or, where not within any of the foregoing or if the office determines that the area within the corporate limits of any of the foregoing is inappropriate under specific circumstances, such trade area or other area, determined by the office to be appropriate under the circumstances, in which are located persons having generally similar interests, including residential, social, or business interests or combinations thereof.
(7) “Court” means a court of competent jurisdiction.
(8) “Fiduciary” means a trustee; committee, guardian, custodian, conservator, or other personal representative of a person, property, or an estate; registrar or transfer agent of, or in connection with, evidences of indebtedness of every kind and of stocks and bonds and other securities; fiscal or financial agent; investment adviser; receiver; trustee in bankruptcy; assignee for creditors; or holder of any similar representative position or any other position of trust, including a person acting in any or all the capacities and performing any or all the functions enumerated in s. 660.34.
(a) The business of receiving demand and time deposits;
(b) The payment of checks; and
(c) The conduct of a trust business when duly authorized.
(10) “Item” means any instrument, or any electronically or otherwise recorded, stored, or transmitted message, for the payment of money, whether or not it is negotiable, but does not include money.
(11) “Law” means each valid and applicable statute, ordinance, rule, or regulation of any state and each of its political subdivisions or of the United States and each of its departments, agencies, or other entities authorized by the laws of the United States to issue rules or regulations.
(12) “National bank” means a bank organized and existing as a national banking association under the provisions of 12 U.S.C. s. 21 and other sections of the National Bank Act relating thereto.
(13) “Political subdivision” of this state means and includes counties, municipalities, and departments, commissions, districts, boards, and other bodies, whether corporate or otherwise, created by or pursuant to the provisions of the constitution or any other law and also includes any officer of any of the foregoing.
(14) “Primary service area” means the smallest geographical area from which a bank draws, or a proposed bank expects to draw, approximately 75 percent of its deposits; the term also means the smallest geographic area from which a trust company or the trust department of a bank or association draws, or a proposed trust company or a proposed trust department of a bank or association expects to draw, approximately 75 percent of the assets value of its fiduciary accounts.
(15) “Principal place of business” or “principal place of doing business” of a bank, the trust department of a bank, or a trust company means its main office.
(16) “State,” when used in the context of a state other than this state, means any or every other state of the United States, the District of Columbia, any and every territory of the United States, Puerto Rico, Guam, American Samoa, and the Virgin Islands.
(17) “State bank” means any bank which has a subsisting bank charter issued pursuant to the provisions of the financial institutions codes or the general banking laws of this state in effect prior to the enactment of the financial institutions codes.
(18) “State member bank” means a state bank which is a member of the Federal Reserve System; and “state nonmember bank” means a state bank which is not a member of the Federal Reserve System.
(19) “State trust company” means a corporation, other than a bank, which has a subsisting trust company charter issued pursuant to the provisions of the financial institutions codes or the applicable laws of the state in effect prior to the enactment of the financial institutions codes.
(20) “Target market” means the group of clients or potential clients from whom:
(a) A bank or proposed bank expects to draw deposits and to whom the bank or proposed bank focuses or intends to focus its marketing efforts; or
(b) A trust company, a trust department of a bank or association, a proposed trust company, or a proposed trust department of a bank or association expects to draw its fiduciary accounts and to whom the trust company, the trust department of a bank or association, the proposed trust company, or the proposed trust department of a bank or association focuses or intends to focus its marketing efforts.
(21) “Trust business” means the business of acting as a fiduciary when such business is conducted by a bank, a state or federal association, or a trust company, or when conducted by any other business organization for compensation that the office does not consider to be de minimis.
(22) “Trust company” means any business organization, other than a bank or state or federal association, which is authorized by lawful authority to engage in trust business. A bank or state or federal association conducting business pursuant to lawful authority, which also by lawful authority has authority to engage in trust business, is the functional equivalent of a trust company with respect to performance of fiduciary services, and may assume fiduciary duties under appointive instruments that establish fiduciary relationships.
(23) “Trust department” means the functional division or department of a bank or state or federal association which conducts the trust business of a bank or state or federal association which has been granted trust powers, pursuant to the laws of this or any other jurisdiction, authorizing the bank or state or federal association to engage in trust business in addition to the general commercial banking business or general business of an association in which it engages.
(24) “Trust powers” means the rights and powers necessary to act as a fiduciary and, when the context so requires or admits, the term also means the authority granted to a bank, state or federal association, or trust company by, or pursuant to, the laws of this or any other jurisdiction to engage in trust business.
(25) Terms which are defined in other sections of the financial institutions codes shall, unless the context otherwise requires or unless by the provisions of the section in which such term is defined its meaning as so defined is limited, have the meanings ascribed to them in such other sections of the financial institutions codes.
(1) When authorized by the office, as provided herein, a corporation may be formed under the laws of this state for the purpose of becoming a state bank or a state trust company and conducting a general banking or trust business.
(2) A bank or trust company that is chartered as a limited liability company under the law of any state is deemed to be incorporated under the financial institutions codes if:
(a) The institution is not subject to automatic termination, dissolution, or suspension upon the occurrence of an event including the death, disability, bankruptcy, expulsion, or withdrawal of an owner of the institution, other than the passage of time;
(b) The exclusive authority to manage the institution is vested in a board of managers or directors that is elected or appointed by the owners which operates in substantially the same manner as, and has substantially the same rights, powers, privileges, duties, and responsibilities, as a board of directors of a bank or trust company chartered as a corporation; and
(c) Neither the laws of the state of the institution’s organization nor the institution’s operating agreement, bylaws, or other organizational documents:
1. Provide that an owner of the institution is liable for the debts, liabilities, or obligations of the institution in excess of the amount of the owner’s investment; or
2. Require the consent of any other owner of the institution in order for an owner to transfer an ownership interest in the institution, including voting rights.
(3) As used in the financial institutions codes, the term:
(a) “Stockholder” or “shareholder” includes an owner of any interest in a bank or trust company chartered as a limited liability company, including a member or participant;
(b) “Director” includes a manager or director of a bank or trust company chartered as a limited liability company, or other person who has, with respect to such a bank or trust company, authority substantially similar to that of a director of a corporation;
(c) “Officer” includes an officer of a bank or trust company chartered as a limited liability company, or other person who has, with respect to such a bank or trust company, authority substantially similar to that of an officer of a corporation;
(d) “Stock,” “voting stock,” “voting shares,” and “voting securities” includes similar ownership interests in a bank or trust company chartered as a limited liability company, including certificates or other evidence of ownership interests;
(e) “Articles of incorporation” or “bylaws” of a bank or trust company chartered as a limited liability company means the institution’s articles of organization and operating agreement or other organizational documentation that is substantially similar to that of a corporation;
(f) “Par value” of any ownership interest in a bank or trust company chartered as a limited liability company means the amount of capital which must be invested for each unit of ownership; and
(g) “Dividend” includes distributions of earnings to the owners of a bank or trust company chartered as a limited liability company.
658.165 Banker’s banks; formation; applicability of financial institutions codes; exceptions.—
(1) If authorized by the office, a corporation may be formed under the laws of this state for the purpose of becoming a banker’s bank. An application for authority to organize a banker’s bank is subject to ss. 658.19, 658.20, and 658.21, except that s. 658.20(1)(b) and (c) and the minimum stock ownership requirements for the organizing directors provided in s. 658.21(2) do not apply.
(2) A banker’s bank chartered pursuant to subsection (1) is subject to the financial institutions codes and rules adopted thereunder; and, except as otherwise specifically provided herein or by rule or order of the commission or office, a banker’s bank is vested with or subject to the same rights, privileges, duties, restrictions, penalties, liabilities, conditions, and limitations that would apply to a state bank. A banker’s bank is organized solely to do business with other financial institutions and is not deemed to be doing business with the general public even if, as an incidental part of its activities, it does business to a limited extent with entities and persons other than financial institutions as follows:
(a) The range of customers with which the banker’s bank does business is limited to financial institutions, including subsidiaries or organizations owned by financial institutions; directors, officers, or employees of the same or other financial institutions; individuals whose accounts are acquired at the request of a financial institution’s supervisory authority due to the actual or impending failure of a financial institution; and financial institution trade associations; and
(b) The banker’s bank does not make loans to, or investments in, entities and persons other than financial institutions which exceed 10 percent of the banker’s bank’s total assets, and the banker’s bank does not receive deposits from, or issue other liabilities to, entities and persons other than financial institutions which exceed 10 percent of the banker’s bank total liabilities.
(3) Notwithstanding any other provision of this chapter, a banker’s bank may repurchase, for its own account, shares of its own capital stock; however, the outstanding capital stock may not be reduced below the minimum required by this chapter without the prior approval of the office.
(4) A banker’s bank may provide services at the request of financial institutions in organization that have:
(a) Received conditional regulatory approval from the office in the case of a state bank or trust company, or from the appropriate state regulatory agency in the case of an out-of-state bank or trust company, or received preliminary approval from the Office of the Comptroller of the Currency in the case of a national bank.
(b) Filed articles of incorporation or organization pursuant to s. 658.23 in the case of a state bank or trust company, or pursuant to applicable state law in the case of an out-of-state bank or trust company, or filed acceptable articles of incorporation and an organization certificate in the case of a national bank.
(c) Received capital funds in an amount not less than the minimum capitalization required in any notice of or order granting conditional regulatory approval.
(5) A banker’s bank may provide services to the organizers of a financial institution in organization which has not received conditional regulatory approval if such services are limited to the financing of the expenses of organizing such proposed financial institution and expenses relating to the acquisition or construction of the institution’s proposed operating facilities and associated fixtures and equipment.
(6) If the commission or office finds that any provision of this chapter is inconsistent with the purpose for which a banker’s bank is organized and that the welfare of the public or any financial institution would not be jeopardized thereby, the commission, by rule, or the office, by order, may exempt a banker’s bank from such provision or limit the application thereof.
658.19 Application for authority to organize a bank or trust company.—
(1) A written application for authority to organize a banking corporation or a trust company shall be filed with the office by the proposed directors and shall include:
(a) The name, residence, and occupation of each proposed director.
(b) The proposed corporate name.
(c) The total initial capital, the number of shares of each class of the capital stock to be authorized, and the par value of the shares of each class.
(d) The community, including the street and number, if available, or, if not available, the area within the community, where the principal office of the proposed bank or proposed trust company is to be located.
(e) If known, the name and residence of the proposed president, the proposed chief executive officer if other than the proposed president and, if the application is for organization of a trust company or a bank with trust powers, the name and address of the proposed trust officer.
(f) Such detailed financial, business, and biographical information as the commission or office may reasonably require for each proposed director, executive officer, and, if applicable, trust officer.
(g) A request for trust powers if desired in connection with an application to organize a bank.
(2) The application shall be in such form as the commission prescribes and contain such additional information as the commission or office reasonably requires and shall be accompanied by the required fee, which shall not be refundable.
(3) Notwithstanding chapter 120, an application may be returned to the applicant, on a one-time basis, for correction of substantial deficiencies and may be resubmitted without payment of an additional fee if such resubmission takes place within 60 days after the date the office returns the application.
(1) Upon the filing of an application, the office shall make an investigation of:
(a) The character, reputation, financial standing, business experience, and business qualifications of the proposed officers and directors.
(b) The need for bank or trust facilities or additional bank or trust facilities, as the case may be, in the primary service area where the proposed bank or trust company is to be located or the need for the target market that the bank or trust company intends to engage with in business.
(c) The ability of the primary service area or target market to support the proposed bank or trust company and all other existing bank or trust facilities that serve the same primary service area or target market.
(2) The office is authorized to obtain criminal record information from the National Crime Information Center or from the Department of Law Enforcement as a part of its investigation pursuant to this section.
658.21 Approval of application; findings required.—The office shall approve the application if it finds that:
(1) Local and target market conditions indicate reasonable promise of successful operation for the proposed state bank or trust company. In determining whether an applicant meets the requirements of this subsection, the office shall consider all materially relevant factors, including:
(a) The purpose, objectives, and business philosophy of the proposed state bank or trust company.
(b) The projected financial performance of the proposed bank or trust company.
(c) The feasibility of the proposed bank or trust company, as stated in the business plan, particularly with respect to asset and liability growth and management.
(2) The proposed capitalization is in such amount as the office deems adequate, but in no case may the total capital accounts at opening for a bank be less than $8 million. The total capital accounts at opening for a trust company may not be less than $3 million. The organizing directors of the proposed bank shall directly own or control at least the lesser of $3 million or 25 percent of the bank’s total capital accounts proposed at opening as approved by the office. When the proposed bank will be owned by a single-bank holding company, the organizing directors of the proposed bank collectively shall directly own or control at least an amount of the single-bank holding company’s capital accounts equal to the lesser of $3 million or 25 percent of the proposed bank’s total capital accounts proposed at opening as approved by the office. When the proposed bank will be owned by an existing multibank holding company, the proposed directors shall have a substantial capital investment in the holding company, as determined by the office; however, such investment shall not be required to exceed the amount otherwise required for a single-bank holding company application. The office may disallow illegally obtained currency, monetary instruments, funds, or other financial resources from the capitalization requirements of this section. The proposed stock offering must comply with the requirements of ss. 658.23-658.25 and 658.34-658.37.
(3) The proposed capital structure is in such form as the office may require, but, at a minimum, every state bank or trust company hereafter organized shall establish paid-in capital equal in amount to not less than 50 percent of its total capital accounts and a paid-in surplus equal in amount to not less than 20 percent of its paid-in capital.
(4)(a) The proposed officers have sufficient financial institution experience, ability, standing, and reputation and the proposed directors have sufficient business experience, ability, standing, and reputation to indicate reasonable promise of successful operation, and none of the proposed officers or directors has been convicted of, or pled guilty or nolo contendere to, any violation of s. 655.50, relating to the control of money laundering and terrorist financing; chapter 896, relating to offenses related to financial institutions; or similar state or federal law.
(b) At least two of the proposed directors who are not also proposed officers must have had at least 1 year of direct experience as an executive officer, regulator, or director of a financial institution within the 5 years before the date of the application. However, if the applicant demonstrates that at least one of the proposed directors has very substantial experience as an executive officer, director, or regulator of a financial institution more than 5 years before the date of the application, the office may modify the requirement and allow the applicant to have only one director who has direct financial institution experience within the last 5 years.
(c) The proposed president or chief executive officer must have had at least 1 year of direct experience as an executive officer, director, or regulator of a financial institution within the last 5 years. The office may waive this requirement after considering:
1. The adequacy of the overall experience and expertise of the proposed president or chief executive officer;
2. The likelihood of successful operation of the proposed state bank or trust company pursuant to subsection (1);
3. The adequacy of the proposed capitalization under subsection (2);
4. The proposed capital structure under subsection (3);
5. The experience of the other proposed officers and directors; and
6. Any other relevant data or information.
(5) The corporate name of the proposed state bank or trust company is approved by the office.
(6) Provision has been made for suitable quarters at the location in the application.
658.22 Coordination with federal agencies.—Upon approval by the office of the application for authority to organize a state bank, the office shall forward a copy of its final order to the appropriate federal regulatory agencies. The failure of an applicant to apply for membership in the Federal Reserve System or apply for the insurance of accounts by the Federal Deposit Insurance Corporation within 3 months after approval by the office or a final order by the Federal Deposit Insurance Corporation denying an applicant’s application for insurance of accounts, terminates and revokes the final order issued by the office approving the application.
658.23 Submission of articles of incorporation; contents; form; approval; filing; commencement of corporate existence; bylaws.—
(1) Within 3 months after approval by the office and the appropriate federal regulatory agency, the applicant shall submit its duly executed articles of incorporation to the office, together with the filing fee due the Department of State under s. 607.0122.
(2) The articles of incorporation shall contain:
(a) The name of the proposed bank or trust company.
(b) The general nature of the business to be transacted or a statement that the corporation may engage in any activity or business permitted by law. Such statement shall authorize all such activities and business by the corporation.
(c) The amount of capital stock authorized, showing the maximum number of shares of par value common stock and of preferred stock, and of every kind, class, or series of each, together with the distinguishing characteristics and the par value of all shares.
(d) The amount of capital with which the corporation will begin business, which may not be less than the amount required by the office pursuant to s. 658.21.
(e) A provision that the corporation is to have perpetual existence unless existence is terminated pursuant to the financial institutions codes.
(f) The initial street address of the main office of the corporation, which shall be in this state.
(g) The number of directors, which shall be five or more, and the names and street addresses of the members of the initial board of directors.
(h) A provision for preemptive rights, if applicable.
(i) A provision authorizing the board of directors to appoint additional directors, pursuant to s. 658.33, if applicable.
The office shall provide to the proposed directors form articles of incorporation which must include only those provisions required under this section or under chapter 607. The form articles may be modified by the applicant to include any of the additional provisions required by part II or part III of chapter 607 which are necessary for a corporation to be a social purpose or benefit corporation. The form articles shall be acknowledged by the proposed directors and returned to the office for filing with the Department of State.
(3) Within 30 days of receipt of the executed articles of incorporation in the form previously approved, and the required filing fees, the office shall place the following legend upon the articles of incorporation and affix the seal of the office thereto. The legend shall in substance read: “Approved by the Office of Financial Regulation this day of (herein the name and signature of the director of the office) .” Thereafter, the articles of incorporation shall be filed with the Department of State.
(4) The corporate existence of a banking corporation or a trust company corporation shall commence on the date the approved articles of incorporation are filed with the Department of State, unless otherwise provided in the articles of incorporation pursuant to s. 607.0203. Thereafter, a banking corporation or trust company corporation may perform all acts necessary to perfect its organization, obtain and equip a place of business, and otherwise prepare to conduct a general banking business or trust business. However, no banking corporation or trust company corporation shall become a state bank or a state trust company or transact any banking business or trust business until it has received a certificate of authority to transact business as provided in s. 658.25.
(5) Unless the articles of incorporation provide otherwise, the board of directors shall have authority to adopt or amend bylaws that do not conflict with bylaws that may have been adopted by the stockholders. The bylaws shall be for the governance of the bank or trust company, subordinate only to the articles of incorporation and the laws of the United States and of this state.
(6) A bank or trust company may not amend its articles of incorporation without the prior written approval of the office.
658.235 Subscriptions for stock; approval of major shareholders.—
(1) Within 6 months after commencement of corporate existence, and at least 30 days prior to opening, the directors shall have completed the stock offering and shall file with the office a final list of subscribers to all of the capital stock of the proposed bank or trust company showing the name and residence of each subscriber and the amount of stock of every class subscribed for by each.
(2) The directors shall also provide such detailed financial, business, and biographical information as the commission or office may reasonably require for each person who, together with related interests, subscribes to 10 percent or more of the voting stock or nonvoting stock that is convertible into voting stock of the proposed bank or trust company. The office shall make an investigation of the character, financial responsibility, and financial standing of each such person in order to determine whether he or she is likely to control the bank or trust company in a manner that would jeopardize the interests of the depositors and creditors of the bank or trust company, the other stockholders, or the general public. The investigation must include a determination of whether such person has been convicted of, or pled guilty or nolo contendere to, a violation of s. 655.50, relating to the control of money laundering and terrorist financing; chapter 896, relating to offenses related to financial transactions; or similar state or federal law.
(3) At the time the shares are issued, the corporation shall furnish to the office a final list of shareholders and an affidavit from the corporation that the entire capital accounts have been fully and unconditionally paid in cash and that valid assets representing such total capital accounts are held by the bank, trust company, or escrow agent.
658.24 Organizational procedures.—After the corporate existence of a bank or trust company corporation has commenced and the stock has been issued, but no less than 30 days prior to the intended opening date, a shareholders’ meeting shall be held to elect directors already approved by the office, to approve organizational expenses, and to conduct such other business relating to the corporation as may be appropriate. Immediately after the board of directors has been elected by the shareholders, the board shall meet to adopt bylaws, elect officers, and conduct such other business relating to the corporation as may be appropriate. Within 10 days after the shareholders’ and directors’ meetings, the corporation shall file with the office a copy of the minutes of the meetings together with a copy of the bylaws that were adopted, a list showing the names and residence addresses of the officers elected and the title of each, and a detailed accounting of the organization expenses approved by the shareholders.
(1) A bank or trust company corporation shall open and conduct a general commercial bank or trust business no later than 12 months after the commencement of its corporate existence.
(2) At least 30 days prior to its intended opening date, the corporation shall notify the office of its proposed opening date and confirm its compliance with all conditions imposed in the order or orders issued by the office relating to its organization.
(3) The office shall perform a preopening examination to verify good faith compliance with all the requirements of law and that the bank or trust company corporation is ready to engage in a general commercial bank or trust business. If the office finds that such requirements have been met, it shall issue a certificate of authorization to transact a general commercial bank or trust business. Upon the issuance of the certificate of authorization, the bank or trust company corporation shall become a state bank or a state trust company and the certificate shall constitute its charter.
(4) Upon opening for business, a bank or trust company shall have power to engage in a general commercial bank or trust business and to exercise, subject to law, all such incidental powers as may reasonably promote its general commercial bank or trust business.
658.26 Places of transacting business; branches; facilities.—
(1) Any bank or trust company heretofore or hereafter incorporated pursuant to this chapter shall have one main office, which shall be located within the state.
(2)(a) In addition, with the approval of the office and upon such conditions as the commission or office prescribes, any state bank or trust company may establish branches or relocate offices within or outside the state. With the approval of the office upon a determination that the resulting bank or trust company will be of sound financial condition, any bank or trust company incorporated pursuant to this chapter may establish branches by merger with any other bank or trust company.
(b) As provided by commission rules, a financial institution operating in a safe and sound manner may establish or relocate an office by filing a written notice with the office at least 30 days before opening or relocating that office, without filing an application or paying an application fee. The notification must specify the name and location of the office and effective date of the change. The relocation of a main office to a location outside this state must be by application only.
(c) Applications filed pursuant to this subsection need not be published in the Florida Administrative Register, but shall otherwise be subject to chapter 120.
(d) An application to establish a branch by a bank that is ineligible for branch notification shall be in writing in such form as the commission prescribes and be supported by such information, data, and records as the commission or office may require to make findings necessary for approval. Upon the filing of an application and a nonrefundable filing fee for the establishment of any branch permitted by paragraph (a), the office shall investigate and consider the following:
1. The sufficiency of capital accounts in relation to the deposit liabilities of the bank, or in relation to the number and valuation of fiduciary accounts of the trust company, including the proposed branch, and the additional fixed assets, if any, which are proposed for the branch and its operations, without undue risk to the bank or its depositors, or undue risk to the trust company or its fiduciary accounts;
2. The sufficiency of earnings and earning prospects of the bank or trust company to support the anticipated expenses and any anticipated operating losses of the branch during its formative or initial years;
3. The sufficiency and quality of management available to operate the branch;
4. The name of the proposed branch to determine if it reasonably identifies the branch as a branch of the main office and is not likely to unduly confuse the public; and
5. Substantial compliance by the applicants with applicable law governing their operations.
(e) A state bank that is not eligible for notification of a branch relocation must file an application in the form required by the commission. Upon the filing of a relocation application and a nonrefundable filing fee, the office shall investigate to determine whether the financial institution has substantially complied with applicable law governing its operations. Additional investments in land, buildings, leases, and leasehold improvements resulting from such relocation must comply with the limitations imposed by s. 658.67(7)(a). A main office may not be moved outside this state unless the move is expressly authorized by the financial institutions codes or by federal law. A financial institution that has been in operation for less than 24 months must provide evidence that the criteria of s. 658.21(1) will be met.
(f) A branch office may be closed with 30 days’ prior written notice to the office. The notice shall include any information the commission prescribes by rule.
(3) With prior written notification to the office, any bank may operate facilities which are not physically connected to the main or branch office of the bank, provided that the facilities are situated on the property of the main or branch office or property contiguous thereto. Property which is separated from the main or branch office of a bank by only a street, and one or more walkways and alleyways are determined to be, for purposes of this subsection, contiguous to the property of the main or branch office.
(4) A bank may provide, directly or through a contract with another company, off-premises armored car service to its customers. Armored car services shall not be considered a branch for the purposes of subsection (2).
(5)(a) Any state bank that is a subsidiary of a bank holding company may agree to receive deposits, renew time deposits, close loans, service loans, and receive payments on loans and other obligations, as an agent for an affiliated depository institution.
(b) The term “close loan” does not include the making of a decision to extend credit or the extension of credit.
(c) As used in this section, “receive deposits” means the taking of deposits to be credited to an existing account and does not include the opening or origination of new deposit accounts at an affiliated institution by the agent institution.
(d) Under this section, affiliated banks may act as agents for one another regardless of whether the institutions are located in the same or different states. This section applies solely to affiliated depository institutions acting as agents, and has no application to agency relationships concerning nondepositories as agent, whether or not affiliated with the depository institution.
(e) In addition, under this section, agent banks may perform ministerial functions for the principal bank making a loan. Ministerial functions include, but are not limited to, such activities as providing loan applications, assembling documents, providing a location for returning documents necessary for making the loan, providing loan account information, and receiving payments. It does not include such loan functions as evaluating applications or disbursing loan funds.
658.27 Control of bank or trust company; definitions and related provisions.—
(1) In ss. 658.27-658.285, unless the context clearly requires otherwise:
(a) “Bank holding company” means any business organization which has or acquires control over any bank or trust company or over any business organization that is or becomes a bank holding company by virtue of ss. 658.27-658.285.
(b) “Business organization” means a corporation, association, partnership, or business trust and includes any similar organization (including a trust company and including a bank, whether or not authorized to engage in trust business, but only if such bank is, or by virtue of ss. 658.27-658.285 becomes, a bank holding company), whether created, organized, or existing under the laws of the United States; this state or any other state of the United States; or any other country, government, or jurisdiction. “Business organization” does not include any corporation the majority of the shares of which are owned by the United States or by this state. “Business organization” also includes any other trust, unless by its terms it must terminate within 25 years or not later than 21 years and 10 months after the death of individuals living on the effective date of the trust, unless the office determines, after notice and opportunity for hearing, that a purpose for the creation of such trust was the evasion of the provisions of ss. 658.27-658.285.
(c) “Edge Act corporation” means a corporation organized and existing under the provisions of s. 25(a) of the Federal Reserve Act, 12 U.S.C. ss. 611-632.
(d) “Subsidiary,” with respect to a specified bank, trust company, or bank holding company, means:
1. Any business organization 25 percent or more of the voting shares of which, excluding shares owned by the United States or by any business organization wholly owned by the United States, are directly or indirectly owned or controlled by such bank, trust company, or bank holding company or are held by such bank, trust company, or bank holding company with power to vote;
2. Any business organization the election of a majority of the directors of which is controlled in any manner by such bank, trust company, or bank holding company; or
3. Any business organization with respect to the management or policies of which such bank, trust company, or bank holding company has the power, directly or indirectly, to exercise a controlling influence, as determined by the office after notice and opportunity for hearing.
(e) “Successor,” with respect to a specified bank holding company, means any business organization which acquires directly or indirectly from the bank holding company shares of any bank or trust company, when and if the relationship between such business organization and the bank holding company is such that the transaction effects no substantial change in the control of the bank or trust company or beneficial ownership of such shares of such bank or trust company. The commission may, by rule, further define the term “successor” to the extent necessary to prevent evasion of the purposes of ss. 658.27-658.285. For the purposes of ss. 658.27-658.285, any successor to a bank holding company shall be deemed to have been a bank holding company from the date on which the predecessor business organization became a bank holding company.
(2) A business organization has control over a bank or over any other business organization if:
(a) The business organization directly or indirectly or acting through one or more other persons owns, controls, or has power to vote 25 percent or more of any class of voting securities of the bank or other business organization;
(b) The business organization controls in any manner the election of a majority of the directors, trustees, or other governing body of the bank or other business organization;
(c) The business organization owns, controls, or has power to vote 10 percent or more of any class of voting securities of the bank or other business organization and exercises a controlling influence over the management or policies of the bank or other business organization; or
(d) The office determines, after notice and opportunity for hearing, that the business organization directly or indirectly exercises a controlling influence over the management or policies of the bank or other business organization.
(3) Shares of any kind or class of voting securities of a bank or business organization, and assets of a business organization, shall be deemed to be indirectly owned or controlled by a bank or business organization, the latter being referred to in this subsection as the “controlling bank or business organization,” if:
(a) The shares or assets are owned or controlled by any bank or business organization over which the controlling bank or business organization has control; or
(b) The shares or assets are held or controlled directly or indirectly by trustees for the benefit of:
1. The controlling bank or business organization;
2. The shareholders or members of the controlling bank or business organization; or
3. The employees, whether exclusively or not, of the controlling bank or business organization.
(4) Shares of any kind or class of voting securities, and assets, of a bank or business organization which, after March 28, 1972, the effective date of former s. 659.141(2)(g), are transferred by any bank holding company, or by any bank or any business organization which, but for such transfer, would be a bank holding company, directly or indirectly to any transferee that is indebted to the transferor, or has one or more officers, directors, trustees, or beneficiaries in common with or subject to control by the transferor, shall be deemed to be indirectly owned or controlled by the transferor unless the office, after opportunity for hearing, determines that the transferor is not in fact capable of controlling the transferee.
(5) Notwithstanding any other provision of this section, no bank and no business organization shall be deemed to own or control voting shares or assets of another bank or another business organization if:
(a) The ownership or control of such shares or assets is in a fiduciary capacity, except as provided in paragraph (3)(b) and subsection (4). For the purposes of the preceding sentence, shares of a bank or a business organization shall not be deemed to have been acquired in a fiduciary capacity if the acquiring bank or business organization has sole discretionary authority to exercise voting rights with respect thereto, except that this limitation is applicable in the case of a bank or business organization acquiring such shares prior to March 28, 1972, the effective date of former s. 659.141(3)(a), only if the bank or business organization has the right, consistent with its obligations under the instrument, agreement, or other arrangement establishing the fiduciary relationship, to divest itself of such voting rights and fails to exercise that right to divest within 1 year after that date;
(b) The shares are acquired in connection with the underwriting of securities by a business organization, in good faith and without any intent or purpose to evade the purposes of ss. 658.27-658.285, and if such shares are held only for such period of time, not exceeding 3 months from date of acquisition, as will permit the sale thereof on a reasonable basis; however, upon application by the underwriting business organization, and after notice and opportunity for hearing, if the office finds that the sale of such shares within that period of time would create an unreasonable hardship on the underwriting business organization, that there is no intent or purpose to evade the purposes of ss. 658.27-658.285 by the continued ownership or control of such shares by such underwriting business organization, and that an extension of such period of time would not be detrimental to the public interest, the office is authorized to extend, from time to time, for not more than 1 month at a time, the 3-month period, but the aggregate of such extensions shall not exceed 3 months;
(c) Control of voting rights of such shares is acquired in good faith, and without any purpose or intent to evade the purposes of ss. 658.27-658.285, in the course of participating in a proxy solicitation by a business organization formed in good faith, and without any purpose or intent to evade the purposes of ss. 658.27-658.285, for the sole purpose of participating in such proxy solicitation, and such control of voting rights terminates immediately upon the conclusion of the sole purpose for which such business organization was formed; or
(d) The ownership or control of such shares or assets is acquired in securing or collecting a debt previously contracted in good faith, unless the office, after notice and opportunity for hearing, finds that a purpose of any part of any transaction was an evasion of the purposes of ss. 658.27-658.285 and if the ownership or control of such shares or assets is held only for such reasonable period of time, not exceeding 2 years after the date of acquisition, as will permit the divestiture thereof on a reasonable basis. Upon application by the bank or business organization which acquired such ownership or control in accordance with the preceding provisions of this paragraph, and after notice and opportunity for hearing, if the office finds that the bank or business organization has made reasonable and good faith efforts to divest itself of such ownership or control on a reasonable basis within the 2-year period but has been unable to do so, that immediate divestiture of such ownership or control would create an unreasonable hardship on such bank or business organization, that continuation of such ownership or control involves no purpose or intent to evade the purposes of ss. 658.27-658.285, and that an extension of the 2-year period would not be detrimental to the public interest, the office is authorized to extend, from time to time and for not more than 1 year at a time, the 2-year period, but the aggregate of all such extensions shall not exceed 3 years.
(6) A business organization provides investment advisory services if, in this state and for compensation, it engages in the business of advising persons, directly or indirectly or through publications or writings, as to the value of securities or as to the advisability of investment in or purchasing securities; or if, not being a certified public accountant, in this state and for compensation, it issues or distributes to persons analyses or reports concerning securities.
658.28 Acquisition of control of a bank or trust company.—
(1) If a person or a group of persons, directly or indirectly or acting by or through one or more persons, proposes to purchase or acquire a controlling interest in a state bank or state trust company, and change the control of that bank or trust company, such persons must first submit an application to the office for a certificate of approval of such proposed change.
(a) The application must contain the name and address, and such other relevant information as the commission or office requires, including information relating to other and former addresses and the reputation, character, responsibility, and business affiliations of the proposed new owners of the controlling interest.
(b) The office shall issue a certificate of approval only after it has made an investigation and determined that the proposed new owners of the interest are qualified by reputation, character, experience, and financial responsibility to control and operate the bank or trust company in a legal and proper manner and that the interests of the other stockholders, if any, the depositors and creditors of the bank or trust company, and the public generally will not be jeopardized by the proposed change in ownership, controlling interest, or management.
(c) A person who has been convicted of, or pled guilty or nolo contendere to, a violation of s. 655.50, relating to money laundering in financial institutions; chapter 896, relating to offenses related to financial transactions; or any similar state or federal law may not receive a certificate of approval.
(d) A business organization that is not a bank holding company authorized by the office or the federal Bank Holding Company Act of 1956, as amended, 12 U.S.C. ss. 1841 et seq., may not control a bank.
(2) If a person or a group of persons, directly or indirectly, acquires a controlling interest in a state bank or state trust company, as contemplated by this section, through probate or trust, the person or group of persons shall notify the office within 90 days after acquiring such an interest. Such an interest does not give rise to a presumption of control until the person or group of persons votes the shares or the office has issued a certificate of approval in response to an application pursuant to subsection (1).
(3) For the purposes of this section, the standards, criteria, and exceptions contained in s. 658.27(2), (3), (4), and (5) relating to control by a business organization of a bank or another business organization apply to the persons mentioned in this section and constitute the standards, criteria, and exceptions which determine whether any person or group of persons shall be deemed to be purchasing or acquiring, or to have purchased or acquired, directly or indirectly a “controlling interest” in a state bank or a state trust company; but the office is not limited to those standards or criteria in determining whether any such person shall be deemed to be acting by or through one or more other persons.
(4) In any case in which a proposed purchase or acquisition of voting securities of a state bank or trust company would give rise to the presumption created under s. 658.27(2)(c), the person or group of persons who propose to purchase or acquire the voting securities shall first give written notice of the proposal to the office. Such notice may present information that the proposed purchase or acquisition will not result in control. The office shall afford the person seeking to rebut the presumption an opportunity to present views in writing or orally before its designated representatives at an informal conference. If the office determines, pursuant to the informal conference, that the person or group of persons seeking to rebut the presumption exercises a controlling influence over the bank, an application for change of control must be filed pursuant to this section.
(5) For the purposes of this section, no person will be considered as having effected a change in control of any bank by the formation of a bank holding company when the person or persons who controlled the bank or banks are the same person or persons who control the holding company.
658.285 Acquisition or ownership of state banks by international banking corporations.—An international banking corporation may, with the approval of the office pursuant to s. 658.28, acquire control over or organize a state bank organized under the laws of this state. For the purposes of this section, the word “bank” shall have the meaning given in s. 2(c) of the Bank Holding Company Act of 1956, 12 U.S.C. s. 1841(c).
(1) SHORT TITLE.—This section may be cited as the “Florida Interstate Branching Act.”
(2) PURPOSE.—The purpose of this section is to provide for the regulation of interstate branching, in accordance with this section and consistent with the Federal Deposit Insurance Act, as amended, 12 U.S.C. ss. 1811 et seq.; the Bank Holding Company Act of 1956, as amended, 12 U.S.C. ss. 1841 et seq., and 12 U.S.C. s. 5451; and Pub. L. No. 111-203.
(3) DEFINITIONS.—As used in this section, the term:
(a) “Interstate merger transaction” means the merger or consolidation of banks with different home states, and the conversion of branches of any bank involved in the merger or consolidation into branches of the resulting bank.
(b) “Resulting bank” means a bank that results from an interstate merger transaction under this section.
(c) “Florida bank” means a bank whose home state is this state.
(4) AUTHORITY OF STATE BANKS TO ESTABLISH INTERSTATE BRANCHES BY MERGER.—With the prior written approval of the office, a state bank may establish, maintain, and operate one or more branches in a state other than this state pursuant to an interstate merger transaction in which the state bank is the resulting bank. No later than the date on which the required application for the interstate merger transaction is filed with the appropriate federal bank regulatory agency, the applicant state bank shall file an application on a form prescribed by the commission accompanied by the required fee pursuant to s. 658.73. The applicant must also comply with the provisions of ss. 658.40-658.45.
(5) INTERSTATE MERGER TRANSACTIONS AND BRANCHING PERMITTED.—
(a) One or more Florida banks may enter into an interstate merger transaction with one or more out-of-state banks. An out-of-state bank resulting from such transaction may maintain and operate the branches of a Florida bank that participated in such transaction if the conditions and filing requirements of this section are met.
(b) Except as otherwise expressly provided in this section, an interstate merger transaction is not permitted if, upon consummation of such transaction, the resulting bank, including all insured depository institutions that would be affiliates, as defined in 12 U.S.C. s. 1841(k), of the resulting bank, would control 30 percent or more of the total amount of deposits held by all insured depository institutions in this state. However, this paragraph does not apply to initial entry into this state by an out-of-state bank or bank holding company.
(6) NOTICE AND FILING REQUIREMENTS.—An out-of-state bank that will be the resulting bank pursuant to an interstate merger transaction involving a Florida bank must notify the office of the proposed merger within 15 days after the date it files an application for an interstate merger transaction with the appropriate federal regulatory agency and the home state regulatory agency, if applicable. Thereafter, the out-of-state bank and the Florida bank must, upon request of the office, submit status updates with such information as the office specifies until the merger transaction is completed or the merger application is withdrawn or denied.
(7) EXAMINATIONS; PERIODIC REPORTS; COOPERATIVE AGREEMENTS; ASSESSMENT OF FEES.—
(a) The office may examine any Florida branch of an out-of-state state bank which the office deems necessary for the purpose of determining whether the branch is being operated in compliance with the laws of this state and in accordance with safe and sound banking practices.
(b) The office may enter into cooperative, coordinating, or information-sharing agreements with other bank regulatory agencies or any organization affiliated with or representing one or more bank regulatory agencies to facilitate the regulation of out-of-state state branches doing business in this state.
(c) The office may accept reports of examinations or investigations, or other records from other regulatory agencies having concurrent jurisdiction over a state bank or a bank holding company that controls out-of-state state banks that operate branches in this state in lieu of conducting its own examinations or investigations.
(d) The office may assess supervisory and examination fees that are payable by state banks and out-of-state state bank holding companies doing business in this state in connection with the office’s performance of its duties under this section and as prescribed by the commission. Such fees may be shared with other bank regulatory agencies or organizations affiliated with or representing one or more bank regulatory agencies in accordance with agreements between them and the office.
(8) LAWS APPLICABLE TO INTERSTATE BRANCHING OPERATIONS.—Laws of this state regarding consumer protection, fair lending, and establishment of intrastate branches apply to any out-of-state bank branch doing business in this state to the same extent as the laws of this state apply to a state bank, unless:
(a) Federal law preempts the application of the laws of this state.
(b) The Comptroller of the Currency determines that the application of the laws of this state would have a discriminatory effect on the branch of a national bank in comparison with the effect the application of such state laws would have with respect to branches of a state bank.
(9) ENFORCEMENT.—
(a) If the office determines that a branch maintained by an out-of-state state bank in this state is being operated in violation of any law of this state, or that such branch is being operated in an unsafe and unsound manner, the office may take all such enforcement actions as it would be empowered to take if the branch were a state bank if the office promptly gives notice to the home state regulator of each enforcement action taken against the out-of-state state bank and, to the extent practicable, consults and cooperates with the home state regulator in pursuing and resolving the enforcement action.
(b) The office may take any action jointly with other regulatory agencies having concurrent jurisdiction over out-of-state banks and bank holding companies that operate branches in this state, or take such action independently, to carry out its responsibilities.
(10) NOTICE OF SUBSEQUENT MERGER.—
(a) Each out-of-state state bank that has established and maintains a branch in this state must give at least 30 days’ prior written notice to the office of any merger, consolidation, or other transaction that would cause a change of control pursuant to home state or federal law with respect to such bank or any bank holding company that controls such bank.
(b) In the case of a failing financial institution, the office, with the concurrence of the appropriate regulatory agencies, may issue an emergency order authorizing any necessary interstate banking or branching transaction pursuant to s. 655.4185.
(11) DE NOVO INTERSTATE BRANCHING.—
(a) As used in this subsection, the term “de novo branch” means a branch of a bank which is originally established by the bank as a branch and does not become a branch of such bank as a result of:
1. The bank’s acquisition of another bank or of a branch of another bank; or
2. The conversion, merger, or consolidation of any bank or branch.
(b) With the prior approval of the office, a state bank may establish and maintain a de novo branch or acquire a branch in a state other than this state by submitting an application with the office pursuant to s. 658.26.
(c) A state bank desiring to establish and maintain a branch in another state shall pay the branch application fee set forth in s. 658.73. In acting on the application, the office shall consider the views of the appropriate bank regulatory agencies.
(d) An out-of-state bank may establish and maintain a de novo branch or acquire a branch in this state upon compliance with chapter 605 or part I of chapter 607 relating to doing business in this state as a foreign business entity, including maintaining a registered agent for service of process and other legal notice pursuant to s. 655.0201.
(12) ADDITIONAL BRANCHES; POWERS.—
(a) An out-of-state bank that has lawfully acquired or established a branch in this state may establish additional branches in this state to the same extent that any Florida bank may establish branches in this state.
(b) An out-of-state bank may conduct only those activities at its Florida branch or branches which are authorized under the laws of this state or of the United States. However, an out-of-state bank with trust powers may exercise all trust powers in this state as a Florida bank with trust powers.
658.30 Application of the Florida Business Corporation Act.—
(1) When not in direct conflict with or superseded by specific provisions of the financial institutions codes, the provisions of the Florida Business Corporation Act, part I of chapter 607, and, if applicable, part II or part III of chapter 607, extend to state banks and trust companies formed under the financial institutions codes. This section shall be liberally construed to accomplish the purposes stated herein.
(2) Without limiting the generality of subsection (1), stockholders, directors, and committees of state banks and trust companies may hold meetings in any manner authorized by part I of chapter 607, and, if applicable, part II or part III of chapter 607, and any action by stockholders, directors, or committees required or authorized to be taken at a meeting may be taken without a meeting in any manner authorized by part I of chapter 607.
658.32 Annual meetings.—Unless otherwise approved by the office, the annual meeting of stockholders of a state bank or trust company shall be held on such day in the first 4 months of each year as is specified therefor in the articles of incorporation or in the bylaws of the corporation; however, when the day fixed in the articles of incorporation or in the bylaws for the regular annual meeting of the stockholders falls on a legal holiday, the annual meeting of stockholders shall be held on the next following day which is not a legal holiday.
(1) The board of directors of a bank or trust company must consist of at least five directors, each of whom must be elected, except in cases in which a director must be appointed to fill a vacancy. Elections are to be held at the annual meeting of stockholders or at a special meeting; however, if authorized by the articles of incorporation, a majority of the full board of directors may, at any time during the year following the annual meeting of shareholders, increase the number of directors of the bank or trust company by not more than two and appoint persons to fill the resulting vacancies.
(2) Not less than a majority of the directors must, during their whole term of service, be citizens of the United States, and at least a majority of the directors must have resided in this state for at least 1 year preceding their election and must be residents therein during their continuance in office. In the case of a bank or trust company with total assets of less than $150 million, at least one, and in the case of a bank or trust company with total assets of $150 million or more, two of the directors who are not also officers of the bank or trust company must have had at least 1 year of direct experience as an executive officer, regulator, or director of a financial institution within the last 5 years.
(3) Within 30 days following the annual meeting or any other meeting at which directors or officers are elected, the bank or trust company must submit to the office the names and residence addresses of those persons on a form adopted by the commission and provided by the office.
(4) Each director, upon assuming office, must acknowledge that he or she is familiar with his or her responsibilities as a director and that he or she will diligently and honestly administer the affairs of the bank or trust company and will not knowingly violate, or willfully permit to be violated, any of the provisions of the financial institutions codes or pertinent rules of the commission. The signed copy of such oath must be filed with the office within 30 days after election.
(5) The president, chief executive officer, or any other person, regardless of title, who has equivalent rank or leads the overall operations of a bank or trust company must have had at least 1 year of direct experience as an executive officer, director, or regulator of a financial institution within the last 5 years. This requirement may be waived by the office after considering the overall experience and expertise of the proposed officer and the condition of the bank or trust company, as reflected in the most recent regulatory examination report and other available data.
(1) A bank or trust company shall issue its capital stock with par value of not less than $1 per share.
(2) No bank or trust company shall issue any shares of capital stock at a price less than par value, and prior to issuance, any such shares must be fully paid in cash.
(3) With the approval of the office, a bank or trust company may issue preferred stock of one or more classes in an amount and with a par value as approved by the office.
(4) With the approval of the office, a bank or trust company may issue less than all the number of shares of any of its capital stock authorized by its articles of incorporation. Such authorized but unissued shares may be issued only for the following purposes:
(a) To provide for stock options and warrants as provided in s. 658.35.
(b) To declare or pay a stock dividend; however, any such stock dividend must comply with the provisions of this section and s. 658.37.
(c) To increase the capital of the bank or trust company.
(5) Stock of the same class may not be issued or sold by the financial institution that creates different rights, options, warrants, or benefits among the purchasers or stockholders of that class of stock. Such prohibition does not restrict the financial institution from creating uniform restrictions on the transfer of stock as permitted in s. 607.0627.
(1) After obtaining the approval of the majority of the board of directors, the majority of the holders of common stock of the bank, and the office and after complying with the provisions of s. 607.0624, any bank or trust company may, for the purpose of providing share options for or issuing warrants to one or more of its directors, officers, or employees, hold authorized but unissued, or purchase or otherwise acquire and hold, shares of its own capital stock in an amount not to exceed 20 percent of the total number of shares outstanding.
(2) Any such bank or trust company may thereafter from time to time, without first offering such shares of stock to its stockholders, grant options or issue warrants to such of its directors, officers, and employees as may be authorized by the board of directors. A share option or warrant expires within 10 years after issuance and has an exercise price of not less than the greater of the fair market value as of the date the option is granted on such shares or the par value thereof as determined by the board of directors; however, if such shares are not publicly traded, the book value of such shares may be substituted for the fair market value.
(3) Any bank or trust company may, from time to time, issue warrants to stockholders as authorized by the board of directors. A share option or warrant expires within 5 years after issuance and has an exercise price of not less than the greater of the fair market value as of the date the option is granted on such shares or the par value thereof as determined by the board of directors.
(4) Upon the exercise of the option or warrant, the bank or trust company may sell and issue such shares to the optionee or warrant holder.
(1) A state bank or trust company may not reduce the number of shares of its outstanding capital stock without first obtaining the approval of the office. Approval shall be withheld if the reduction will cause capital accounts to be less than the minimum required pursuant to the financial institutions codes.
(2) A state bank or trust company may provide for an increase in its number of outstanding shares of capital stock after filing a written notice with the office at least 15 days before making such increase. The office may waive the time requirement upon a demonstration of good cause.
(3) If a bank or trust company’s capital accounts have been diminished by losses to less than the minimum required pursuant to the financial institutions codes, the market value of its shares of capital stock is less than the present par value, and the bank or trust company cannot reasonably issue and sell new shares of stock to restore its capital accounts at a share price of par value or greater of the previously issued capital stock, the office, notwithstanding any other provisions of part I of chapter 607 and, if applicable, part II or part III of chapter 607, or the financial institutions codes, may approve special stock offering plans.
(a) Such plans may include, but are not limited to, mechanisms for stock splits including reverse splits; revaluations of par value of outstanding stock; changes in voting rights, dividends, or other preferences; and creation of new classes of stock.
(b) The plan must be approved by majority vote of the bank or trust company’s entire board of directors and by holders of two-thirds of the outstanding shares of stock.
(c) The office shall disapprove a plan that provides unfair or disproportionate benefits to existing shareholders, directors, executive officers, or their related interests. The office shall also disapprove any plan that is not likely to restore the capital accounts to sufficient levels to achieve a sustainable, safe, and sound financial institution.
(d) For any bank or trust company that the office determines to be a failing financial institution pursuant to s. 655.4185, the office may approve special stock offering plans without a vote of the shareholders.
(1) The directors of any bank or trust company, after charging off bad debts, depreciation, and other worthless assets if any, and making provision for reasonably anticipated future losses on loans and other assets, may quarterly, semiannually, or annually declare a dividend of so much of the aggregate of the net profits of that period combined with its retained net profits of the preceding 2 years as they shall judge expedient, and, with the approval of the office, any bank or trust company may declare a dividend from retained net profits which accrued prior to the preceding 2 years, but each bank or trust company shall, before the declaration of a dividend on its common stock, carry 20 percent of its net profits for such preceding period as is covered by the dividend to its surplus fund, until the same shall at least equal the amount of its common and preferred stock then issued and outstanding. No bank or trust company shall declare any dividend at any time at which its net income from the current year combined with the retained net income from the preceding 2 years is a loss or which would cause the capital accounts of the bank or trust company to fall below the minimum amount required by law, regulation, order, or any written agreement with the office or a state or federal regulatory agency. A bank or trust company may, however, split up or divide the issued shares of capital stock into a greater number of shares without increasing or decreasing the capital accounts of the bank or trust company, and such shall not be construed to be a dividend within the meaning of this section.
(2) A bank that has been determined to be imminently insolvent may not pay a dividend.
658.38 Deposit insurance.—A state bank must, prior to opening, obtain and thereafter maintain insurance of its deposits by the Federal Deposit Insurance Corporation.
658.39 Stockholders; examination of records.—No bank, trust company, or financial institution-affiliated party shall permit any stockholder, other than a qualified director, officer, or employee thereof, to have access to, or to examine or inspect, any of the books or records of such bank or trust company other than its general statement of condition of its general assets and liabilities, the quarterly reports of condition and quarterly reports of income required to be submitted to the office pursuant to s. 655.045, and a list of shareholders as provided in s. 655.057.
History.—s. 2, ch. 28016, 1953; s. 3, ch. 76-168; s. 3, ch. 77-94; s. 1, ch. 77-457; ss. 29, 151, 152, ch. 80-260; ss. 2, 3, ch. 81-318; ss. 35, 58, ch. 85-82; s. 1, ch. 91-307; ss. 1, 123, ch. 92-303; s. 1784, ch. 2003-261.
Note.—Former s. 659.25.
658.40 Definitions for merger and consolidation.—As used in the provisions of this code relating to the merger and consolidation of banks and trust companies, unless the context requires otherwise:
(1) “Constituent bank or trust company” means a bank or a state trust company which is a party to a merger.
(2) “Merger” includes consolidation.
(3) “Resulting bank or trust company” means the consolidated bank or state trust company which is, or is to be, carrying on business upon completion of a consolidation; and, in the case of a merger, means the bank or state trust company into which the other constituent banks or trust companies are, or are to be, merged.
(4) “Successor institution” means a banking corporation or a trust company organized under the laws of this state to which the office has not issued a certificate of authorization, as provided in s. 658.25, to conduct a banking business or trust business, the sole purpose of the organization of which is to facilitate a plan of merger, reorganization, or consolidation.
(1) Upon filing of an application with the office by the constituent banks or trust companies, and upon approval by the office, banks and state trust companies may be merged with a resulting state bank or state trust company, as prescribed in this code, except that the action by a constituent national bank shall be taken in the manner prescribed by, and shall be subject to, any limitations or requirements imposed by any law of the United States applicable thereto, which shall also govern the rights of its dissenting shareholders; and the terms and provisions of the plan of merger and merger agreement required by s. 658.42, as they relate to a constituent national bank, shall conform with such federal laws. The application shall be accompanied by a plan of merger and merger agreement as provided in s. 658.42.
(2) The laws of this state do not restrict the right of a state bank or state trust company to merge with a resulting national bank or out-of-state bank. In such case the action to be taken by a constituent state bank or state trust company, and its rights and liabilities and those of its shareholders, are the same as those prescribed for constituent national banks at the time of the action by the applicable federal law and not the law of this state.
(1) If the resulting bank or trust company will be a state bank or a state trust company, the constituent banks or trust companies shall adopt a plan of merger and merger agreement stating the method, terms, and conditions of the merger, including the rights of the stockholders of each constituent bank or trust company and all agreements concerning the merger. The board of directors of each constituent bank or trust company shall, by a majority of the entire board, approve the plan of merger and merger agreement which shall contain:
(a) The name of each constituent bank or trust company and the specific location of its office and each of its branches and trust service offices.
(b) With respect to the resulting state bank or state trust company:
1. The name and the specific location of the proposed main office and each existing and proposed branch office and trust service office;
2. The name and address of each director who is to serve until the next meeting of the stockholders at which directors are elected;
3. The name and address of each executive officer;
4. The number of shares of capital stock of every class; the par value of each share of every class; the limitations, rights, preferences, or other special terms, if any, of each class of stock; and the amount of the surplus fund and of retained earnings or the undivided profits fund;
5. Whether the resulting state bank is to have trust powers; and
6. The complete articles of incorporation under which the resulting bank or trust company will operate.
(c) The terms for the exchange of shares of the constituent banks or trust companies for cash or the shares, rights, obligations, or other securities or property, or a combination of any thereof, of the resulting bank or trust company, or of, or offered by, a bank holding company as defined in the Bank Holding Company Act of 1956, as amended, 12 U.S.C. ss. 1841-1849, which owns, or on the effective date of the merger and as a result of the merger will own, more than 50 percent of the shares of voting stock of the resulting bank.
(d) A statement that the plan and agreement are subject to approval by the office and by the stockholders of each constituent bank or trust company.
(e) Provisions governing the manner of disposing of the shares, if any, of the resulting state bank or state trust company not taken by dissenting shareholders of constituent banks or trust companies.
(f) Such additional provisions not contrary to law as may be agreed upon by the constituent banks and trust companies and such other provisions as the office requires to enable it to discharge its duties with respect to the merger.
(2) In connection with the organization of a successor institution, a showing and finding of public convenience and advantage for the organization of a new state bank or state trust company is not required; and the commission shall adopt special rules relating to the formation, organization, approval, and chartering of successor institutions which omit or waive such of the provisions of ss. 658.16-658.26 as are not essential to safeguard the public interest and the safety and soundness of state banks and state trust companies, but no certificate of authorization to conduct a banking business or trust business shall be issued to a successor institution unless a certificate of merger, as provided in s. 658.45, is issued pursuant to the plan of merger and merger agreement. However, nothing in this subsection shall be construed as waiving or otherwise impairing the public-interest requirement in s. 658.43(3)(d).
658.43 Approval by office; valuation of assets; emergency action.—
(1) After approval by the board of directors of each constituent bank or trust company, the plan of merger and merger agreement shall be submitted to the office for approval, together with a certified copy of the authorizing resolutions of the board of directors of each constituent state bank or state trust company showing approval by a majority of the entire board of directors of each such state bank or state trust company, and evidence of proper action by the board of directors of any constituent national bank.
(2) Without approval by the office, no asset shall be carried on the books of the resulting state bank or state trust company at a valuation higher than that on the books of the constituent bank or trust company at the time of the last examination by a state or national bank or trust company examiner before the effective date of the merger.
(3) The office shall approve the plan of merger and merger agreement if it appears that:
(a) The resulting state bank or state trust company meets all the requirements of state law as to the formation of a new state bank or state trust company, except that this provision shall not apply to the establishment of branches by merger as provided in s. 658.26.
(b) The agreement provides an adequate capital structure, including surplus, of the resulting state bank or state trust company in relation to its activities which are to continue or are to be undertaken, and also in relation to its deposit liabilities in the case of a resulting state bank.
(c) The valuation is fair.
(d) The merger is not contrary to the public interest.
If the office disapproves a plan of merger or merger agreement, it shall state its objections and, the provisions of chapter 120 notwithstanding, give an opportunity to the constituent banks, trust companies, or banks and trust companies to amend the plan of merger and merger agreement to obviate such objections.
(4) If the resulting state bank is not to have trust powers, the office shall not approve a merger until adequate provision has been made for successors to fiduciary positions held by any constituent trust company or any constituent bank.
(5) Approval by the office, by final order or otherwise, of a plan of merger or merger agreement shall be deemed subject to approval of the plan of merger and merger agreement by the stockholders of each constituent bank or trust company as provided in s. 658.44(1) and shall also be deemed subject to approval of the merger and the plan of merger and merger agreement by each appropriate federal regulatory agency. Unless all such approvals have been obtained and proper evidence thereof submitted to the office within 6 months after the approval by the office, the approval by the office of the plan of merger and merger agreement shall be deemed to be revoked and terminated; however, the office on its own motion, or at the request of the constituent banks or trust companies for good cause shown, may extend the time for a period not exceeding 6 months.
(6) No merger with a resulting state bank or trust company shall take place or be effective without the issuance by the office of a certificate of merger.
658.44 Approval by stockholders; rights of dissenters; preemptive rights.—
(1) The office shall not issue a certificate of merger to a resulting state bank or trust company unless the plan of merger and merger agreement, as adopted by a majority of the entire board of directors of each constituent bank or trust company, and as approved by each appropriate federal regulatory agency and by the office, has been approved:
(a) By the stockholders of each constituent national bank as provided by, and in accordance with the procedures required by, the laws of the United States applicable thereto, and
(b) After notice as hereinafter provided, by the affirmative vote or written consent of the holders of at least a majority of the shares entitled to vote thereon of each constituent state bank or state trust company, unless any class of shares of any constituent state bank or state trust company is entitled to vote thereon as a class, in which event as to such constituent state bank or state trust company the plan of merger and merger agreement shall be approved by the stockholders upon receiving the affirmative vote or written consent of the holders of a majority of the shares of each class of shares entitled to vote thereon as a class and of the total shares entitled to vote thereon. Such vote of stockholders of a constituent state bank or state trust company shall be at an annual or special meeting of stockholders or by written consent of the stockholders without a meeting as provided in s. 607.0704.
Approval by the stockholders of a constituent bank or trust company of a plan of merger and merger agreement shall constitute the adoption by the stockholders of the articles of incorporation of the resulting state bank or state trust company as set forth in the plan of merger and merger agreement.
(2) Written notice of the meeting of, or proposed written consent action by, the stockholders of each constituent state bank or state trust company shall be given to each stockholder of record, whether or not entitled to vote, and whether the meeting is an annual or a special meeting or whether the vote is to be by written consent pursuant to s. 607.0704, and the notice shall state that the purpose or one of the purposes of the meeting, or of the proposed action by the stockholders without a meeting, is to consider the proposed plan of merger and merger agreement. Except to the extent provided otherwise with respect to stockholders of a resulting bank or trust company pursuant to subsection (7), the notice shall also state that dissenting stockholders, including stockholders not entitled to vote but dissenting under paragraph (c), will be entitled to payment in cash of the value of only those shares held by the stockholders:
(a) Which at a meeting of the stockholders are voted against the approval of the plan of merger and merger agreement;
(b) As to which, if the proposed action is to be by written consent of stockholders pursuant to s. 607.0704, such written consent is not given by the holder thereof; or
(c) With respect to which the holder thereof has given written notice to the constituent state bank or trust company, at or prior to the meeting of the stockholders or on or prior to the date specified for action by the stockholders without a meeting pursuant to s. 607.0704 in the notice of such proposed action, that the stockholder dissents from the plan of merger and merger agreement, and which shares are not voted for approval of the plan or written consent given pursuant to paragraph (a) or paragraph (b).
Hereinafter in this section, the term “dissenting shares” means and includes only those shares, which may be all or less than all the shares of any class owned by a stockholder, described in paragraphs (a), (b), and (c).
(3) On or promptly after the effective date of the merger, the resulting state bank or trust company, or a bank holding company which, as set out in the plan of merger or merger agreement, is offering shares rights, obligations, or other securities or property in exchange for shares of the constituent banks or trust companies, may fix an amount which it considers to be not more than the fair market value of the shares of a constituent bank or trust company and which it will pay to the holders of dissenting shares of that constituent bank or trust company and, if it fixes such amount, shall offer to pay such amount to the holders of all dissenting shares of that constituent bank or trust company. The amount payable pursuant to any such offer which is accepted by the holders of dissenting shares, and the amount payable to the holders of dissenting shares pursuant to an appraisal, shall constitute a debt of the resulting state bank or state trust company.
(4) The owners of dissenting shares who have accepted an offer made pursuant to subsection (3) shall be entitled to receive the amount so offered for such shares in cash upon surrendering the stock certificates representing such shares at any time within 30 days after the effective date of the merger, and the owners of dissenting shares, the value of which is to be determined by appraisal, shall be entitled to receive the value of such shares in cash upon surrender of the stock certificates representing such shares at any time within 30 days after the value of such shares has been determined by appraisal made on or after the effective date of the merger.
(5) The fair value, as defined in s. 607.1301(5), of dissenting shares of each constituent state bank or state trust company, the owners of which have not accepted an offer for such shares made pursuant to subsection (3), shall be determined pursuant to ss. 607.1326-607.1331 except as the procedures for notice and demand are otherwise provided in this section as of the effective date of the merger.
(6) Upon the effective date of the merger, all the shares of stock of every class of each constituent bank or trust company, whether or not surrendered by the holders thereof, shall be void and deemed to be canceled, and no voting or other rights of any kind shall pertain thereto or to the holders thereof except only such rights as may be expressly provided in the plan of merger and merger agreement or expressly provided by law.
(7) The provisions of subsection (6) and, unless agreed by all the constituent banks and trust companies and expressly provided in the plan of merger and merger agreement, subsections (3), (4), and (5) are not applicable to a resulting bank or trust company or to the shares or holders of shares of a resulting bank or trust company the cash, shares, rights, obligations, or other securities or property of which, in whole or in part, is provided in the plan of merger or merger agreement to be exchanged for the shares of the other constituent banks or trust companies.
(8) The stock, rights, obligations, and other securities of a resulting bank or trust company may be issued as provided by the terms of the plan of merger and merger agreement, free from any preemptive rights of the holders of any of the shares of stock or of any of the rights, obligations, or other securities of such resulting bank or trust company or of any of the constituent banks or trust companies.
(9) After approval of the plan of merger and merger agreement by the stockholders as provided in subsection (1), there shall be filed with the office, within 30 days after the time limit in s. 658.43(5), a fully executed counterpart of the plan of merger and merger agreement as so approved if it differs in any respect from any fully executed counterpart thereof theretofore filed with the office, and copies of the resolutions approving the same by the stockholders of each constituent bank or trust company, certified by the president, or chief executive officer if other than the president, and the cashier or corporate secretary of each constituent bank or trust company, respectively, with the corporate seal impressed thereon.
658.45 Certificate of merger and effective date; effect on charters and powers.—
(1) Promptly upon compliance with the provisions of s. 658.44(9), the office shall issue to the resulting bank a certificate of merger setting forth the name of each constituent bank and trust company, the name of the resulting bank or trust company, and the effective date of the merger which, unless the office for good cause determines otherwise, shall be the date requested by the resulting bank if such request was made at the time of compliance with the requirements of s. 658.44(9), but not later than 3 months after the date of such compliance. On the effective date of the merger, the charters and franchises of the constituent banks and trust companies, other than the resulting bank or trust company, shall be deemed terminated and surrendered. The certificate of merger shall be conclusive evidence of the merger and of the correctness of all proceedings therefor in all courts and places and may be recorded in any office for the recording of deeds.
(2) The corporate existence of each of the constituent banks or trust companies shall be merged into and continue in the resulting bank or trust company, and such resulting bank or trust company shall be deemed to be the same bank or trust company as each constituent bank and trust company participating in the merger. All rights, franchises, property, and other interests of the individual constituent banks, and all obligations and liabilities thereof, shall be transferred to, be vested in, and become the obligations of the resulting bank or trust company by virtue of the merger, without any deed or other instrument of transfer.
(3) The resulting bank or trust company shall have the right to use the name of any constituent bank or trust company in or in connection with any specific action, proceeding, or transaction when convenience will be served thereby and doing so will not confuse or mislead any party to any such action, proceeding, or transaction. Any reference to any constituent bank in any order of court or in any action, proceeding, will, contract, or other writing or other reference of any kind, whether made or taking effect before or after the merger, shall be deemed a reference to the resulting bank, unless that result would be clearly in conflict with the provisions constituting the context of such reference.
(4)(a) If the resulting state bank is to have trust powers and if one or more of the parties to the merger is a state trust company or a bank having an existing trust department operating pursuant to trust powers theretofore granted by the office, in the case of a constituent state bank, or by the appropriate federal regulatory authority, in the case of a constituent national bank, such trust powers shall pass to the resulting state bank; and it shall have and may exercise trust powers in the same manner and to the same extent as the constituent banks or trust companies to which such trust powers were originally issued, and no application to have or to continue to have or exercise trust powers shall be required. However, if the name of the resulting state bank differs from that of a constituent state trust company or a constituent bank having trust powers, the office shall issue a certificate to the resulting state bank showing its right to exercise the trust powers theretofore granted to the constituent banks or trust companies. All fiduciary relationships and capacities of all the constituent banks and trust companies shall, by operation of law, pass to and be assumed by the resulting bank having trust powers, in the same manner and to the same extent as such fiduciary capacities and relationships were held by any constituent bank or trust company.
(b) Upon the merger of two or more state trust companies, the resulting state trust company shall continue to have and exercise the trust powers of the constituent trust companies, and no application to have or to continue to exercise trust powers shall be required. However, if the name of the resulting state trust company differs from that of any of the constituent trust companies, the office shall issue a certificate to the resulting state trust company showing its right to exercise the trust powers theretofore granted to the constituent trust companies. All fiduciary relationships and capacities of the constituent state trust companies shall pass to and be assumed by the resulting state trust company by operation of law.
Note.—Consolidation of former ss. 661.06 and 661.07.
658.48 Loans.—A state bank may make loans and extensions of credit, with or without security, subject to the following limitations and provisions:
(1) LOANS; GENERAL LIMITATIONS.—
(a) A bank may extend credit to any person, including any related interest of that person, up to an amount of 15 percent of its capital accounts for loans and lines of credit which are unsecured. A bank may extend credit to any person, including any related interest of that person, in any amount up to 25 percent of its capital accounts for loans and lines of credit, all components of which are amply and entirely secured. However, when outstanding loans consist of both secured and unsecured portions, the secured and unsecured portions together may not exceed 25 percent of the capital accounts of the lending bank, and the unsecured portion may not exceed 15 percent of the capital accounts of the lending bank.
(b) The commission may provide by rule for securities margin requirements.
(c) The loan limitations stated in this section shall not be enlarged by the provisions of any other section of this chapter, except as provided in subsection (5).
(2) LOANS TO EXECUTIVE OFFICERS, DIRECTORS, AND THEIR RELATED INTERESTS.—No bank shall extend credit, including the granting of a line of credit, to any of its executive officers or directors, or any related interest of that person, that, when aggregated with the amount of all other extensions of credit to that person and any related interest of that person, exceeds $25,000, unless the extension of credit has been approved in advance by a majority of the entire board of directors, with the interested party abstaining from participating, directly or indirectly, in the deliberations or voting. Such approval must be granted not more than 1 year prior to the time when such credit is extended.
(3) LOANS TO OTHER PERSONS.—A bank may not extend credit, including the granting of a line of credit, to any person, including a related interest of that person, which, if aggregated with the amount of all other extensions of credit to that person and any related interest of that person, exceeds 15 percent of the capital accounts of the lending bank, unless the extension of credit has been approved in advance by a majority of the entire board of directors or by all members of an authorized committee thereof within 1 year before the time such credit is extended.
(4) SPECIAL PROVISIONS.—
(a) A limitation of 25 percent of the capital accounts of the lending bank applies to the aggregate of all loans made to a corporation, together with all loans secured by shares of stock, bonds, or other obligations of the same corporation, unless the stocks or bonds are listed and traded on a recognized stock exchange, registered under the Securities Exchange Act of 1934, or registered with the Board of Governors of the Federal Reserve System, the Federal Deposit Insurance Corporation, or the Comptroller of the Currency, in which case no aggregate loan limit applies.
(b) A limitation of 15 percent of the capital accounts of the lending bank applies to loans made to any one borrower on the security of shares of capital stock listed and traded on a recognized exchange. A limitation of 10 percent of the capital accounts of the lending bank applies to loans made to any one borrower on the security of shares of capital stock not listed on a recognized exchange or the obligations subordinate to deposits of another bank. A limitation of 25 percent of the capital accounts of the lending state bank applies to the aggregate of all loans secured by the shares of capital stock or the obligations subordinate to deposits of any one bank.
(c) A loan may not be made by a bank:
1. On the security of the shares of its own capital stock or of its obligations subordinate to deposits.
2. On an unsecured basis for the purpose of purchasing shares of its own capital stock or its obligations subordinate to deposits.
3. On a secured or unsecured basis for the purpose of purchasing shares of the stock of its one-bank holding company.
(d) A one-bank holding company bank may make loans on its own one-bank holding company stock. For capital stock that is listed and traded on a recognized exchange, the stock may not be valued at more than 70 percent of its current market value, and for capital stock that is not listed and traded on a recognized exchange, the stock may not be valued at more than 70 percent of its current book value.
(e) In computing the total liabilities of any person, all loans or lines of credit endorsed or guaranteed as to repayment by such person and any related interest of such person must be included. Purchased participations in pools of loans which are carried as loans subject to the limits of this section must be aggregated when computing the total liabilities of a person who is a borrower, originator, seller, broker, or guarantor, or has a repurchase agreement obligation for the individual and pooled loans. The computation of total liabilities must also include all potential liabilities and obligations of the person, and any related interest, resulting from the person’s derivatives transactions, repurchase agreements, securities lending and borrowing transactions, credit default swaps, and similar contracts.
(f) All loan documentation must be written in English or contain an English translation of foreign language provisions.
(5) APPLICABILITY OF LOAN LIMITATIONS.—The loan limitations provided in this section do not apply to:
(a) Loans that are fully secured by assignment of a savings account or certificate of deposit of the lending bank;
(b) Loans that are fully secured by notes, bonds, or other evidences of indebtedness issued by the United States Government or fully guaranteed as to repayment by the United States Government or its agencies, bureaus, boards, or commissions;
(c) Loans made to district school boards if such loans are secured by the assignment of revenues reasonably expected to be received from the state and are otherwise made in compliance with statutes governing borrowings by such boards; or
(d) Purchased participations in pools of loans which are carried as investments subject to the limitations of s. 658.67.
(6) APPROVAL BY BOARD.—The requirements of this section concerning approval of lending activities by the board of directors or an authorized committee therefrom are met only if such approvals are recorded in the formal minutes of the actions of the board and its committees by name of borrower, amount of loan, maturity of loan, and general type of collateral. If, at the time of approval of a line of credit, such information is not available, the name of the borrower and the amount of the approved line of credit must be recorded in the minutes. Any action required by this section may be taken pursuant to s. 607.0820(4) if the minutes of the proceedings of the board or of the committee reflect such action and each director taking such action signs the minutes reflecting such action at the next regular meeting of the board or committee attended by such director.
(7) LIABILITY OF OFFICERS AND DIRECTORS.—Officers and directors are personally liable, jointly and severally, for any loss that may be occasioned by a willful violation of this section.
(8) If a bank’s capital has been diminished by losses so that its ability to honor legally binding written loan commitments is impaired, the office may approve limited expansion of the lending limitations set forth in this section.
(9) FEDERAL RESTRICTIONS AND LIMITATIONS.—This section does not expand, enlarge or otherwise affect lending limits, restrictions, or procedures now provided by federal law applicable to state banks in conjunction with any loan or loans to any borrower or class of borrowers.
658.491 Commercial loans by financial institutions.—
(1) In making collateralized commercial loans secured by accounts, contract rights, or other receivables, any bank may charge and collect audit charges in addition to interest. All such audit charges shall be excluded from interest in determining compliance with chapter 687, relating to interest and usury.
(2) For purposes of this section, “audit charges” means all charges payable to the bank or any of its affiliates for auditing, verifying, or otherwise evaluating accounts, contract rights, or other receivables prior to or during the term of the collateralized commercial loan. The amount of the charges shall be determined by written agreement between the borrower and the bank or any such affiliate. The parties may, without limitation, establish audit charges as a percentage of the total amount of receivables outstanding from time to time.
(3) Nothing contained in this section shall:
(a) Prohibit a bank from collecting charges other than audit charges; or
(b) Render other charges “interest” for purposes of determining compliance with chapter 687.
(1) Banks may make loans known and described as “commodity loans” on the obligations of any person, firm, copartnership, association, or corporation, in the form of notes or drafts secured by shipping documents, warehouse receipts, or other such documents transferring or securing title covering readily marketable nonperishable staples when such property is fully covered by insurance if it is customary to insure such staples, in the following percentages of the capital accounts of the bank:
(a) Twenty-five percent, when the market value of such staples securing such obligation is not at any time less than 115 percent of the face amount of such obligation.
(b) Thirty percent, when the market value of such staples securing such obligation is not at any time less than 120 percent of the face amount of such obligation.
(c) Thirty-five percent, when the market value of such staples securing such obligation is not at any time less than 125 percent of the face amount of such obligation.
(d) Forty percent, when the market value of such staples securing such obligation is not at any time less than 130 percent of the face amount of such obligation.
(e) Forty-five percent, when the market value of such staples securing such obligation is not at any time less than 135 percent of the face amount of such obligation.
(f) Fifty percent, when the market value of such staples securing such obligation is not at any time less than 140 percent of the face amount of such obligation.
(2) The increased loan limitation provided by this section shall not apply to obligations of any one person, firm, copartnership, association, or corporation arising from the same transaction or secured upon the identical staples for more than 10 months.
History.—s. 2, ch. 28016, 1953; s. 3, ch. 76-168; s. 1, ch. 77-457; ss. 41, 151, 152, ch. 80-260; ss. 2, 3, ch. 81-318; s. 1, ch. 91-307; s. 1, ch. 92-303.
Note.—Former s. 659.19.
658.53 Borrowing; limits of indebtedness.—
(1) Subject to the limitations imposed by this chapter on the indebtedness of state banks and trust companies, a state bank or trust company may borrow money and issue evidences of indebtedness for a loan for temporary purposes in the usual course of its business.
(2) A state bank may at any time, pursuant to action taken by its board of directors, and after obtaining the written approval of the office and the approval of stockholders holding not less than two-thirds of the outstanding stock of the bank entitled to vote, evidenced either in a writing signed by the stockholders or by vote at a legally called and held meeting of the stockholders, issue and sell convertible and nonconvertible capital notes and convertible and nonconvertible capital debentures having a final maturity of not more than 25 years from the date of issue, in such amounts and under such terms and conditions as shall be approved by the office. If deemed necessary by the office, reasonable provisions for the amortization of the principal amount thereof may be required. The principal amount of the capital notes and capital debentures is subject to the limitations imposed by this chapter on indebtedness of state banks and trust companies. Capital notes and capital debentures issued pursuant to the provisions of this subsection, and the claims of holders thereof, shall be subordinate to the claims of depositors and all other creditors of the issuing state bank, regardless of whether the claims of, or the liability of the issuing bank to, the depositors arose before or after the issuance of such capital notes or debentures, but shall be superior to the claims of shareholders for dividends, reserve profits, or other claims on account of shares of capital stock held by them. The holders of the capital notes and the holders of the capital debentures shall not be held individually responsible as such holders for any debts, contracts, or engagements of the issuing state bank and shall not be liable for assessments.
(3) No state bank or trust company shall at any time be indebted, or in any way liable, to an amount exceeding the amount of its unimpaired capital stock plus 50 percent of the amount of its unimpaired surplus fund and unimpaired undivided profits fund, except on account of demands of the nature following:
(a) Moneys deposited with or collected by the bank.
(b) Bills of exchange or drafts drawn against money actually on deposit to the credit of the state bank or due thereto.
(c) Liabilities to the stockholders of the state bank or trust company for dividends and reserve profits.
(d) Liabilities incurred under the provisions of the Federal Reserve Act.
(e) Liabilities incurred under the provisions of the Federal Deposit Insurance Act.
(f) Liabilities incurred under the provisions of the Federal Home Loan Bank Act.
(g) Liabilities created by the endorsement of accepted bills of exchange payable abroad actually owned by the endorsing bank and discounted at home or abroad.
(h) Liabilities incurred under the provisions of ss. 2.3 and 2.4 of Title II of the federal Farm Credit Act of 1971, as amended, 12 U.S.C. ss. 2074 and 2075, subject to the limitations therein contained.
(i) Liabilities incurred for moneys borrowed from a bank when such borrowing is made with the express written approval of the office.
(j) Liabilities incurred for funds purchased from the United States Department of the Treasury.
(k) Liabilities incurred for federal funds purchased.
(4) Unrepaid proceeds of sales of capital notes and capital debentures are considered part of the aggregate amount of capital and surplus in computing loan and investment limitations if the issuing bank is not in default.
(5) Subordinated debt may not be sold, bartered, or exchanged at the main office or branch office or in any other premise of the bank or trust company.
658.60 Depositories of public moneys and pledge of assets.—
(1) Banks shall be depositories of public moneys; they may also be employed as financial agents of the state and its political subdivisions, and they shall perform such reasonable duties as such depositories and financial agents as may be required of them. Banks so designated shall give satisfactory security for the safekeeping and prompt payment of the public moneys deposited with them and for the faithful performance of their duties as financial agents of the state and its political subdivisions as provided in chapter 280. A bank or trust company may also pledge its assets to:
(a) Enable it to act as agent for the sale of obligations of the United States.
(b) Secure borrowed funds.
(c) Secure deposits when the depositor is required by law to obtain such security.
(d) Comply with the requirements of any other law.
(2) Notwithstanding any other provision of this section or the provisions of any other law requiring security for deposits of funds in the form of surety bond, in the form of the deposit or pledge of securities, or in any other form, security for such deposits shall not be required to the extent that such deposits are insured under the provisions of the Federal Deposit Insurance Act, as now or hereafter amended. Recognition is accorded to the custom and usage, and its practicality, of the deposit or pledge of securities by banks, as security for deposits, in an aggregate amount which, because of the fluctuation from time to time of the aggregate amount of the deposits secured thereby, may at times be in an amount in excess of the required amount of such security without withdrawing and redepositing securities with each decrease and increase of the aggregate amount of deposits secured thereby. In order to effectuate the provisions of the first sentence of this subsection, whenever the amount of securities deposited or pledged exceeds the amount required for the deposits secured thereby, securities in an amount equal to such excess shall, for all purposes and laws, while such excess exists be, and be treated as, freed and discharged from such deposit and pledge even though not physically withdrawn or removed from such deposit or pledge. However, such excess securities which are not physically withdrawn or removed from deposit or from the pledge thereof shall immediately and automatically, for all purposes and laws, be, and be treated as, redeposited and repledged at such time or times as, and to the extent that, there is an increase in the amount of security required for funds deposited with the bank.
(3) Any notes, bonds, or other securities, other than shares of stock, in which a state bank is authorized by law to invest any of its funds shall be accepted as satisfactory security for the deposit of funds, for the safekeeping and prompt payment of moneys deposited, for the faithful performance of duties as fiscal or financial agent, and for any other purpose for which security is required, whether such moneys so deposited be funds of or under the control of, or the security is required by, the state or any political subdivision thereof or any officer of the state or any political subdivisions thereof or whether the security is required by any other law. The provisions of this subsection shall be cumulative and shall not be subject to the restrictions or the provisions of any other law relating to the type, characteristics, or form of securities acceptable or required in connection with deposits of any public or other funds or the qualification of depositories therefor, or acceptable or required by any law.
History.—s. 2, ch. 28016, 1953; ss. 12, 35, ch. 69-106; ss. 1, 2, ch. 69-185; s. 3, ch. 76-168; s. 1, ch. 77-457; ss. 50, 151, 152, ch. 80-260; s. 452, ch. 81-259; s. 9, ch. 81-285; ss. 2, 3, ch. 81-318; s. 1, ch. 91-307; ss. 1, 131, ch. 92-303; s. 129, ch. 2005-2.
Note.—Former s. 659.24.
658.67 Investment powers and limitations.—A bank may invest its funds, and a trust company may invest its corporate funds, subject to the following definitions, restrictions, and limitations:
(1) INVESTMENTS NOT SUBJECT TO LIMITATION.—A bank or trust company may invest without limitation in the following:
(a) Direct obligations of the United States Government.
(b) Obligations of agencies created by act of the United States Congress and authorized thereby to issue securities or evidences of indebtedness, regardless of guarantee of repayment by the United States Government.
(c) Collateralized obligations guaranteed by agencies created by an act of the United States Congress.
(d) Public housing authority obligations.
(e) General obligations of the states of the United States and of the political subdivisions and municipalities thereof.
(f) Obligations issued by the State Board of Education under authority of the State Constitution or applicable statutes.
(g) Tax anticipation certificates or warrants of counties or municipalities having maturities not exceeding 1 year.
(h) Prerefunded municipal bonds, the principal and interest of which are secured by the principal and interest of a direct obligation of the United States Government.
(i) The sale of federal funds on a daily or term basis to a Federal Reserve Bank or Federal Home Loan Bank. However, a bank may not sell at any one time federal funds to any individual bank in an amount exceeding 100 percent of the capital accounts of the selling bank.
(j) Demand, savings, or time deposits or accounts of any insured state or federal financial institution.
(k) Bankers’ acceptances which are eligible for purchase by federal reserve banks.
(l) Securities of, or other interests in, any open-end or closed-end management type investment company or investment trust registered under the Investment Company Act of 1940, 15 U.S.C. ss. 80a-1 et seq., as amended from time to time, provided that the portfolio of such investment company or investment trust is limited to United States Government obligations and to repurchase agreements fully collateralized by such United States Government obligations, and provided further that any such investment company or investment trust shall take delivery of such collateral either directly or through an authorized custodian.
(2) INVESTMENTS SUBJECT TO LIMITATION OF TWENTY-FIVE PERCENT OF TOTAL ASSETS.—Up to 25 percent of the total assets of the purchasing bank or trust company may be invested in the following:
(a) Any single issue of revenue bonds or certificates of the states of the United States or of the political subdivisions and municipalities thereof.
(b) Bonds or other obligations of the Inter-American Development Bank.
(c) Bonds or other obligations of the International Bank for Reconstruction and Development or the International Finance Corporation.
(3) INVESTMENTS SUBJECT TO LIMITATION OF TWENTY-FIVE PERCENT OF CAPITAL ACCOUNTS.—Up to 25 percent of the capital accounts of the purchasing bank or trust company may be invested in:
(a) Bonds or other obligations of the African Development Bank.
(b) Corporate obligations of any one corporation that is not an affiliate or subsidiary of the bank or trust company.
(4) INVESTMENTS SUBJECT TO LIMITATION OF 10 PERCENT OR LESS OF CAPITAL ACCOUNTS.—
(a) Up to 10 percent of the capital accounts of the purchasing bank or trust company may be used to invest in any single issue of industrial development bonds issued for the benefit of a specified corporation.
(b) Up to an aggregate of 10 percent of the capital accounts of the purchasing bank or trust company may be used to invest in tax lien certificates.
(c) Up to 5 percent of the capital accounts of the purchasing bank or trust company may be used to invest in or purchase bonds or other evidences of indebtedness of the State of Israel.
(d) Up to 2 percent of the capital accounts of the purchasing bank or trust company may be used to invest in the stock of a community corporation organized to promote the physical, social, or moral well-being of the members of the community where the bank or trust company is located.
(e) Up to 1 percent of the capital accounts of the purchasing bank or trust company may be used to invest in the stock of the Housing Development Corporation of Florida. The purchasing bank or trust company may thereafter deal in the securities or other evidences of debt of such corporation as provided for in chapter 420.
(f) Up to 10 percent of the capital accounts of a bank or trust company may be invested in any capital participation instrument or evidence of indebtedness issued by the Department of Commerce pursuant to the Florida Small and Minority Business Assistance Act.
(5) INVESTMENTS IN RELATED COMPANIES.—A bank or trust company may invest in the stock of incorporated companies to the extent hereinafter defined:
(a) Stock of the Federal Reserve bank or the Federal Home Loan bank of this district may be purchased and retained as required to maintain membership in the system.
(b) Stock of the Federal National Mortgage Association may be purchased and retained as required in connection with mortgage transactions with that association.
(c) Up to 10 percent of the capital accounts of a bank may be invested in a clearing corporation as defined in s. 678.1021.
(d) Up to 10 percent of the capital accounts of a bank may be invested in the capital stock of a banker’s bank, except that in no event shall the purchase of such stock result in the acquisition of more than 5 percent of any class of voting securities of such banker’s bank.
(6) INVESTMENTS IN SUBSIDIARY CORPORATIONS AND AFFILIATES.—Except as limited or prohibited by federal law, a bank may invest in the stock, obligations, and other securities of subsidiary corporations and affiliates. The aggregate of such investments may not exceed 10 percent of the total assets of the bank. During the first 3 years of existence of a bank, such investments are limited to 5 percent of the total assets of the bank. The commission by rule, or the office by order, may further limit any type of investment made pursuant to this subsection if it finds that such investment would constitute an unsafe or unsound practice.
(7) INVESTMENTS IN REAL ESTATE AND EQUIPMENT.—A bank or trust company may invest in real estate and equipment to the extent hereinafter defined:
(a)1. Up to 60 percent of the capital accounts of the bank or trust company may be invested in the direct ownership of, or in leasehold interests in, land and buildings utilized or to be utilized by the bank or trust company in the transaction of its business. This limitation applies to assets subject to a lease agreement which is required to be capitalized under criteria issued by the Financial Accounting Standards Board. In lieu of such investment in real estate, with the prior written approval of the office, up to 60 percent of the capital accounts of the bank or trust company may be invested in the stock of a corporation which owns the land and buildings within which the business of the bank or trust company is or will be transacted.
2. The real estate investment limitations provided by this subsection may not be exceeded except with the prior written approval of the office.
(b) A bank or trust company may own or lease furniture, fixtures, machinery, and equipment such as may be necessary to the transaction of its business.
(8) INVESTMENTS IN PERSONAL PROPERTY.—A bank or trust company may own or lease personal property acquired upon the specific request and for the use of a customer and may incur such additional obligations as may be incident to becoming an owner and lessor of such property. In addition, a bank or trust company may purchase leases as provided by rules of the commission.
(9) ACQUISITIONS OF PROPERTY AS SECURITY.—A bank or trust company may acquire property of any kind to secure, protect, or satisfy a loan or investment previously made in good faith, and such property shall be entered on the books of the bank or trust company and held and disposed of subject to the following conditions and limitations:
(a) The book entry shall be the lesser of the balance of the loan or investment plus acquisition costs and accrued interest or the appraisal value or market value of the property acquired which shall be determined and dated within 1 year prior to or 90 days after the date of acquisition and in compliance with s. 655.60.
(b) The bank or trust company shall have evidence of ownership of all property acquired and shall maintain subsidiary ledgers adequate to the separate recording of all income and expense attributable to its ownership of such property.
(c) Unless an extension of time is approved in writing by the office, real estate shall be sold or charged off within 5 years of the date of acquisition, and personal property shall be sold or charged off within 6 months of the date of acquisition.
(d) The bank will maintain appraisal reports required by s. 655.60.
(10) SPECIAL PROVISIONS.—
(a) The bonds or other obligations described in this section are not eligible for investment unless current as to all payments of principal and interest and otherwise supported as to investment quality and marketability by a credit rating file compiled and maintained in current status by the purchasing bank or trust company. Banks and trust companies shall establish written policies and procedures to evaluate the systemic and specific risks and benefits associated with all investments authorized in this section before making such investments and must provide for appropriate risk management and monitoring for the duration of the investment. An investment decision may not be based solely on the rating of the bond or other obligation by an investment rating service. The office may require a bank or trust company to divest itself of any investment that the office determines creates excessive risk or that has an associated risk that exceeds the ability of the bank or trust company to properly evaluate and manage.
(b) Investment securities shall be entered on the books of the bank or trust company at the fair market value on the date of acquisition. Premiums paid in excess of par value shall be amortized over the life of the security or to the first call date at its call price and thereafter to subsequent call dates at their respective call prices until maturity. Discount may be accredited over the life of the security.
(11) OTHER INVESTMENTS; SUBJECT TO APPROVAL.—A bank or trust company may make such other investments as the commission approves by rule.
(1) Each state bank and state trust company shall pay to the office examination fees and assessments as follows:
(a) A semiannual fee of $2,500; and
(b) A semiannual assessment, each in such amount as may be determined by the commission, by rule, but not exceeding 15 cents for each $1,000 of total assets as shown on the statement of condition of the bank or trust company as of the last business day in June and the last business day in December in each year. In its determination, the commission may consider examination fees and application fees received from banks and trust companies in setting the semiannual assessment for purposes of meeting the cost of regulation of banks and trust companies subject to this chapter.
(2) Applications filed with the office shall be accompanied by payment of the following nonrefundable fees:
(a) Fifteen thousand dollars for each application for authority to organize a new state bank or state trust company.
(b) Two thousand five hundred dollars for each application by an existing bank or association for trust powers.
(c) Seven thousand five hundred dollars for each application for authority to acquire a controlling interest in a state bank or state trust company; however, if more than one bank or trust company is being acquired in any such application, the fee shall be increased by $3,500 for each additional bank or trust company. However, in no event shall the fee exceed $15,000.
(d) Seven thousand five hundred dollars for each application for conversion of a national bank to a state bank.
(e) One thousand five hundred dollars for each application to establish a branch by any other state bank or state trust company that does not qualify for the branch notification process.
(f) One thousand five hundred dollars for each application for authority to establish a trust service office of a state trust company or of a trust department of a state bank or association, and a like amount for each application by a bank or association with trust powers which is not a state bank or state association for authority to establish a trust service office at a state bank, state association, or state credit union.
(g) Seven thousand five hundred dollars for each application for a merger or consolidation; however, if three or more banks or trust companies are involved in any such application, the fee shall be $3,500 for each involved institution. However, in no event shall the fee exceed $15,000.
(h) Two thousand five hundred dollars to establish a successor institution.
(i) Seven hundred fifty dollars for each application by a state bank or trust company not operating in a safe and sound manner for relocation of its main office.
(j) Two thousand five hundred dollars for each application for the purchase of assets and the assumption of liabilities.
(3) If, as a result of any application filed with the office, the office determines that an examination is necessary to assess the financial condition of any financial institution, the applying financial institution shall pay to the office a nonrefundable examination fee, pursuant to s. 655.045(1).
(4) Any individual or entity other than a financial institution chartered in this state must pay to the office $25 for each “certificate of good standing” certifying that a state-chartered financial institution is licensed to conduct business in this state under the financial institutions codes. All such requests shall be in writing. The office shall waive this fee when the request is by a state or federal regulatory agency or law enforcement agency.
(5) The amounts of all fees and assessments provided for in this section shall be deemed to be maximum amounts; and the commission has the authority to establish, by rule, and from time to time to change, fees and assessments in amounts less than the maximum amounts stated in this section.
658.79 Taking possession of insolvent state banks or trust companies.—Whenever the office has reason to conclude, based upon the reports furnished to it by a state bank or trust company examiner or upon other satisfactory evidence, that any state bank or trust company:
(1) Is insolvent or imminently insolvent; or
(2) Is transacting its business in an unsound, unsafe, or unauthorized manner such that it is threatened with imminent insolvency,
the office may, in its discretion, forthwith designate and appoint a liquidator or receiver to take charge of the assets and affairs of such bank or trust company and require of him or her such bond and security as the office deems proper, not exceeding double the amount that may come into his or her hands. The office may enlist the services of any state or local law enforcement agency in taking possession and securing the assets of the bank or trust company.
(1) Upon taking possession of a state bank or trust company pursuant to s. 658.79, the office shall appoint either a receiver to conserve the assets of the institution or a liquidator to liquidate the assets of the institution and wind up its affairs.
(2) The Federal Deposit Insurance Corporation or any appropriate federal agency shall be appointed by the office as receiver or liquidator of any state bank, the deposits of which are to any extent insured by the corporation, and which shall have been closed by the office. Upon appointment, the corporation may act without bond as receiver or liquidator and shall have and possess all the powers and privileges provided by the laws of this state with respect to a receiver or liquidator, respectively, of such institution, its depositors and other creditors. If the corporation declines to accept the tendered appointment, the office may appoint and thereafter dismiss or replace such other receiver or liquidator as deemed necessary or advisable.
658.81 Office action; notice and court confirmation.—The office, immediately upon appointing such liquidator or receiver, shall serve notice upon any other person having the charge or management of any such bank or trust company, informing him or her of its action in appointing such liquidator or receiver and notifying him or her that the office will apply on a date named therein, not to exceed 10 days from the date of service of such notice, to a circuit judge in the court circuit in which the principal office of such bank or trust company is located for an order confirming its action. A copy of such application together with a notice of hearing thereon shall be served on the person receiving the above notice prior to the time set for such hearing. Such proceedings shall be given precedence over other cases pending in such court and shall in every way be expedited. Upon the office’s showing at the hearing on such application that such bank or trust company is insolvent or threatened with imminent insolvency, the court shall enter an order confirming the action of the office and the appointment of such liquidator or receiver; otherwise, the court shall enter an order dismissing the liquidator or receiver, and such liquidator or receiver shall relinquish his or her control over the assets and affairs of such bank or trust company.
(1) When the Federal Deposit Insurance Corporation or other appropriate federal agency is appointed receiver of the bank, it may proceed independently with the receivership pursuant to its rules and regulations.
(2) Any other receiver appointed pursuant to s. 658.80 shall be subject to the supervision of the office and shall have the power to:
(a) Take possession of the books, records, and assets of every description of the bank or trust company and sue for and collect all debts, dues, and claims belonging to the bank or trust company;
(b) Operate the business of the bank or trust company pursuant to the authority granted by its articles of incorporation and the laws of this state in an effort to manage and conserve the assets of the bank or trust company and place such bank or trust company in a sound, safe, and solvent condition;
(c) Sue for and defend, compromise, and settle all claims involving the bank or trust company;
(d) Subject to approval by the circuit court, sell any or all real and personal property of the bank or trust company and sell or compound all bad or doubtful debts;
(e) Pay all expenses of the receivership, which expenses shall be a first charge against the assets of the bank or trust company;
(f) Borrow such sum of money as may be necessary or expedient to protect and conserve the assets and business of the bank or trust company and, in connection therewith, to secure such borrowings by the pledge, hypothecation, or mortgage of the assets of the bank or trust company; and
(g) If necessary to pay the debts of such bank or trust company, sue for and enforce the individual liability of the stockholders.
(3) Within 30 days of her or his appointment, the receiver shall file a statement of condition of the bank or trust company with the office, in addition to such other interim reports as the office may require. Upon receipt of the report of condition, the office may:
(a) Upon a finding that the bank or trust company is in a safe, sound, and solvent condition, surrender possession of such bank or trust company bank to its directors for the purpose of permitting the bank or trust company to resume business on such terms and conditions as the office shall prescribe;
(b) Appoint a liquidator to immediately liquidate the assets of the bank or trust company and wind up its affairs;
(c) Grant a further period of time to the receiver to rehabilitate the affairs of the bank or trust company; or
(1) When the Federal Deposit Insurance Corporation or other appropriate federal agency is appointed liquidator or makes a decision to liquidate a bank of which it has been appointed receiver, it may proceed independently with liquidation pursuant to its rules and regulations.
(2) Any other liquidator appointed pursuant to s. 658.80 shall, subject to the supervision of the office, have the power to:
(a) Take possession of the books, records, and assets of every description of the bank or trust company and sue for and collect all debts, dues, and claims belonging to the bank or trust company;
(b) Sue for and defend, compromise, and settle all claims involving the bank or trust company;
(c) Subject to approval by the circuit court, sell any or all of the real and personal property of the bank or trust company and sell or compound all bad or doubtful debts;
(d) Pay all expenses incurred in the liquidation process, which expenses shall be a first charge against the assets of the bank or trust company and shall be fully paid before any final distribution or payment of dividends to creditors, shareholders, or stockholders;
(e) Borrow such sum of money as may be necessary or expedient in aiding in the liquidation of the bank or trust company and, in connection therewith, to secure such borrowings by the pledge, hypothecation, or mortgage of the assets of the bank or trust company; and
(f) If necessary to pay the debts of such bank or trust company, sue for and enforce the individual liability of the stockholders.
(3) Such liquidator shall pay all moneys received to the Chief Financial Officer to be held as a special deposit for the use and benefit of the creditors subject to the order of the office and also shall make reports quarterly, or when called upon, to the office of all her or his acts and proceedings.
658.84 Transfers by banks and other acts in contemplation of insolvency.—
(1) Any and all transfers of the notes, bonds, bills of exchange, or other evidences of debt owing to any bank or trust company or of deposits to its credit; all assignments of mortgages, securities, or real estate or of any judgments or decrees in its favor; all deposits of money, bullion, or other valuable thing for its use or for the use of any of its stockholders or creditors; and all payments of money to either, made after the commission of an act of insolvency or in contemplation thereof made with a view to the preference of one creditor to another shall be void.
(2) Unsecured claims for payment against any financial institution shall have the following priority for any distribution made after July 3, 1992:
(a) Expenses of the liquidation or the receivership estate;
(b) State claims;
(c) Approved claims for a “deposit,” as that term is defined in 12 U.S.C. s. 1813(l);
(d) Approved claims for other general creditors;
(e) Approved claims for obligations subordinate to deposits and other general liabilities; and
(f) Shareholders’ claims in proportion to the stock held by them respectively or their interest therein as appearing.
(3) Except in any action brought by the office, no attachment, injunction, or execution shall be enforced against such financial institution or any of its property before final judgment in any suit, action, or proceeding in any state or federal court.
History.—s. 4, ch. 28016, 1953; s. 3, ch. 76-168; s. 1, ch. 77-457; ss. 107, 151, 152, ch. 80-260; ss. 2, 3, ch. 81-318; s. 1, ch. 91-307; ss. 1, 213, ch. 92-303; s. 1801, ch. 2003-261.
Note.—Former s. 661.20.
658.90 Receivers or liquidators under supervision of office.—The provisions of ss. 658.79-658.96 shall apply to all receivers or liquidators of any bank or trust company heretofore appointed by the order of any circuit court, and all such receivers or liquidators, both those hereunder and those hereafter appointed by the circuit court, shall at all times be under the supervision and control of the office and subject at all times to summary discharge and dismissal by it. Any vacancy in such receivership may be filled by the office at any time.
History.—s. 4, ch. 28016, 1953; ss. 12, 35, ch. 69-106; s. 3, ch. 76-168; s. 1, ch. 77-457; ss. 113, 151, 152, ch. 80-260; ss. 2, 3, ch. 81-318; s. 1, ch. 91-307; s. 1, ch. 92-303; s. 62, ch. 99-3; s. 1802, ch. 2003-261.
Note.—Former s. 661.26.
658.94 Prima facie evidence.—The general ledger, list of claimants, examiner’s final report made at the time of the failure of the bank or trust company, and such other records of the office’s office relating to any closed bank or trust company, or any duly authenticated copy thereof, shall be prima facie evidence of the subject matter therein set forth.
History.—s. 4, ch. 28016, 1953; ss. 12, 35, ch. 69-106; s. 3, ch. 76-168; s. 1, ch. 77-457; ss. 117, 151, 152, ch. 80-260; ss. 2, 3, ch. 81-318; s. 1, ch. 91-307; s. 1, ch. 92-303; s. 1803, ch. 2003-261.
Note.—Former s. 661.38.
658.95 Voluntary liquidation.—Any bank or trust company may go into liquidation and be closed by a vote of its stockholders owning two-thirds of its stock. Whenever a vote is taken to go into liquidation, the board of directors shall cause this fact to be certified to the office and publication thereof to be made for a period of 2 months in a newspaper of general circulation located in the county in which the bank or trust company is closing up its affairs and notifying its creditors to present their claims against the bank or trust company for payment.
History.—s. 4, ch. 28016, 1953; ss. 12, 35, ch. 69-106; s. 3, ch. 76-168; s. 1, ch. 77-457; ss. 118, 151, 152, ch. 80-260; ss. 2, 3, ch. 81-318; s. 1, ch. 91-307; s. 1, ch. 92-303; s. 1804, ch. 2003-261.
Note.—Former s. 661.39.
658.96 Procedure in voluntary liquidation.—When a bank or trust company decides to go into voluntary liquidation, the president and cashier, or other appropriate officers, shall, before beginning publication of the notice required by law, furnish the office with a full and complete detailed statement of the affairs of the bank or trust company and shall thereafter forward to the office on the first Monday in each month a like detailed statement until all of the liabilities of the bank or trust company shall have been settled in full, provided that, if the office is not satisfied with the report of any bank or trust company intending to go into voluntary liquidation, or if at any time it is not satisfied with the progress of such liquidation, it shall have full authority to proceed under s. 658.80, or otherwise, as the law directs.
History.—s. 4, ch. 28016, 1953; ss. 12, 35, ch. 69-106; s. 3, ch. 76-168; s. 1, ch. 77-457; ss. 119, 151, 152, ch. 80-260; ss. 2, 3, ch. 81-318; s. 1, ch. 91-307; s. 1, ch. 92-303; s. 1805, ch. 2003-261.
Note.—Former s. 661.40.
658.995 Credit Card Bank Act.—
(1) This section may be cited as the “Credit Card Bank Act.”
(2) As used in this section, the term:
(a) “Credit card” means any type of arrangement or loan agreement pursuant to which a domestic lender or credit card bank gives a borrower the privilege of using a credit card or other credit confirmation or device of any type in transactions out of which debt arises, including:
1. By the domestic lender or credit card bank honoring a draft or similar order for the payment of money created, authorized, issued, or accepted by the borrower; or
2. By the domestic lender or credit card bank paying or agreeing to pay the borrower’s obligation.
(b) “Credit card account” means an arrangement between a domestic lender or credit card bank and a borrower for the creation of debt pursuant to a credit card and under which:
1. The domestic lender or credit card bank may permit the borrower to create debt from time to time;
2. The unpaid balance of principal of such debt and the loan, finance, or other appropriate charges are debited to an account;
3. A loan finance charge is computed or an interest rate is imposed upon the outstanding balances of the borrower’s account from time to time; and
4. The domestic lender or credit card bank is to render bills or statements to the borrower at regular intervals, the amount of which bills or statement is payable by and due from the borrower on a specified date as stated in such bill or statement or, at the option of the borrower but subject to the terms and conditions of the credit card account, may be paid by the borrower in installments.
(c) “Credit card bank” means a national bank that has its principal place of business in this state or a bank organized under the laws of this state, the activities of which are limited by law to those permitted pursuant to subsection (3).
(d) “Domestic lender” means any bank, savings and loan association, credit union, or other business organization organized or chartered under the laws of this state or of the United States, which in any event is authorized by law to accept deposits and make loans and has its principal place of business in this state.
(e) “Foreign lender” means any bank, savings and loan association, credit union, or other business organization organized or chartered under the laws of the United States, or any state other than this state or the District of Columbia, which in any event is authorized by law to accept deposits and make loans and has its principal place of business outside this state.
(f) The term “business organization” shall have the meaning set forth in s. 658.27(1)(b).
(3) Subject to the provisions of this section and to the approval of the office, any domestic lender, foreign lender, or business organization may organize, own, and control a credit card bank on the terms and conditions provided in this section:
(a) If the credit card bank is to be organized under the laws of this state, such bank shall be organized as provided in this section;
(b) In connection with the application to organize or to control a credit card bank, the applicant shall pay to the office a filing fee as provided in s. 658.73 for the formation of a bank or trust company;
(c) The shares of a credit card bank shall be owned solely by a domestic lender, a foreign lender, or a business organization;
(d) The credit card bank shall accept deposits only at a single location in this state;
(e) The credit card bank shall at all times maintain capital stock and paid-in surplus as required by regulatory policies of the commission and office but in no event less than $4 million;
(f) The credit card bank may engage only in the business of soliciting, processing, and making loans pursuant to credit card accounts and conducting such other activities as may be necessarily incident thereto;
(g) The credit card bank may not accept demand deposits or deposits that the depositor has the ability to withdraw by check or similar means for payment to third parties or others;
(h) The credit card bank may accept savings or time deposits of only $100,000 or more;
(i) The credit card bank must, prior to opening, obtain and thereafter maintain insurance of its deposits by the Federal Deposit Insurance Corporation; and
(j) The credit card bank may not engage in the business of making commercial loans.
(4) A credit card account between any domestic lender or credit card bank and a borrower, wherever the borrower’s place or residence, shall be governed solely by the laws of this state and federal law unless otherwise expressly agreed in writing by the parties. However, in no case shall such a writing by the parties supersede the interest rate provisions of s. 655.954. A domestic lender or credit card bank may, as specified in the written agreement governing a credit card account, modify terms or conditions of such credit card account upon prior written notice or such modification as specified by the terms of the agreement governing the credit card account or by the Truth in Lending Act (15 U.S.C. ss. 1601 et seq.). Any such notice provided by a domestic lender or credit card bank shall specify that the borrower has the right to surrender the credit card whereupon the borrower shall have the right to continue to pay off the borrower’s credit card account in the same manner and under the same terms and conditions as then in effect. The borrower’s failure to surrender the credit card prior to the modifications becoming effective shall constitute a consent to the modifications.
(5) All credit card banks organized under the laws of this state shall be subject to the supervision, regulation, and examination of the office, and the office shall have all enforcement powers with respect thereto as are provided in the financial institutions codes.
(6) A credit card bank shall be subject to the provisions of the financial institutions codes except when any rights, powers, privileges, or provisions of the financial institutions codes are inconsistent with the rights, powers, privileges, provisions, or limitations of this section.
(7) A credit card bank shall not be considered a “bank” for the purposes of ss. 658.27-658.2953.
