TITLE 7 BANKING AND FINANCE

Section 1. Financial Institutions, 7-1-1 through 7-1-1021.

ARTICLE 1 PROVISIONS APPLICABLE TO DEPARTMENT OF BANKING AND FINANCE AND FINANCIAL INSTITUTIONS GENERALLY

7-1-4. Definitions.

Subject to additional definitions contained in the subsequent provisions of this chapter, as used in this chapter, the term:

1. "Affiliate" means any corporation, business trust, association, or other similar organization:
   1. Of which a financial institution, directly or indirectly, owns or controls either a majority of the voting shares or more than 50 percent of the number of shares voted for the election of its directors, trustees, or other persons exercising similar functions at the preceding election or controls in any manner the election of a majority of its directors, trustees, or other persons exercising similar functions;
   2. Of which control is held, directly or indirectly, through stock ownership or in any other manner by the shareholders of a financial institution who own or control either a majority of the shares of such financial institution or more than 50 percent of the number of shares voted for the election of directors of such financial institution at the preceding election or by trustees for the benefit of the shareholders of any such financial institutions;
   3. Of which a majority of its directors, trustees, or other persons exercising similar functions are directors of any one financial institution; or
   4. Which owns or controls, directly or indirectly, either a majority of the shares of a financial institution or more than 50 percent of the number of shares of a financial institution voted for the election of directors of a financial institution at the preceding election or controls in any manner the election of a majority of the directors of a financial institution or for the benefit of whose shareholders or members all or substantially all the capital stock of a financial institution is held by trustees.

   (1.5) "Agency relationship" is a relationship created by a contractual agreement whereby a financial institution agrees with a third party, including another financial institution, to act in a principal or agent capacity to facilitate the conduct of activities related to the business of banking, which activities are currently authorized under this chapter or under other applicable law.

2. "Agreement for the payment of money" means a consensual monetary obligation not in the form of an evidence of indebtedness or an investment security and includes an account or general intangible as defined in Code Section 11-9-102.
3. "Appropriated retained earnings" means that portion of the retained earnings of a bank or trust company set aside by resolution of the board of directors as unavailable for the payment of dividends or other distribution to shareholders.
4. "Articles" means original or restated articles of incorporation or articles of consolidation and all the amendments thereto, including articles of merger or conversion, and also includes what heretofore have been designated by law as certificates of incorporation or charters and, in case of foreign corporations, whatever documents are equivalent to "articles" in their jurisdiction of incorporation. After an amendment restating articles in their entirety, the "articles" shall not include any prior documents, and the certificate of amendment issued by the Secretary of State shall so state.
5. "Assets" means all the property and rights of every kind of a financial institution.
6. "Attorney" means an attorney at law who is regularly retained as counsel for a financial institution or who is a partner or associate of a firm which is regularly retained as counsel for a financial institution.
7. "Bank" means a corporation existing under the laws of this state on April 1, 1975, or organized under this chapter and authorized to engage in the business of receiving deposits withdrawable on demand or deposits withdrawable after stated notice or lapse of time; "bank" shall also include national banks located in this state for the purpose of Part 6 of Article 2 of this chapter, relating to deposits, safe-deposit agreements, and money received for transmission, and Article 8 of this chapter, relating to multiple deposit accounts; provided, however, that the term "bank" shall not include a credit union, a savings and loan association, or a licensee under Article 4 of this chapter, but shall include a federal or state credit union for the purposes of Part 6 of Article 2 of this chapter, provided that this inclusion is not intended to grant or expand any powers to credit unions not authorized in Part 6 of Article 2 of this chapter or by other law.
8. Reserved.
9. "Capital debt" means the sum of the face value of the subordinated securities of a financial institution issued pursuant to Code Section 7-1-419.
10. "Capital stock" means the sum of the par value of the authorized shares which have been issued and remain outstanding of a bank or trust company.
11. Reserved.
12. "Commercial bank" means a bank authorized to hold deposits subject to check.
13. "Commissioner" means the commissioner of banking and finance.
14. "Corporation" means a corporation, whether profit or nonprofit, and includes a professional corporation or joint-stock association, organized under the laws of this state, the United States, or any other state, territory, or dependency of the United States or under the laws of a foreign country.
15. "Credit union" means a cooperative society incorporated under the laws of this state on April 1, 1975, or organized under Article 3 of this chapter and existing for the twofold purpose of promoting thrift among its members and creating a source of credit for them at reasonable rates.
16. "Department" means the Department of Banking and Finance.
17. "Depositor" means any person or corporation who shall deposit money or items for the payment of money in any financial institution, which funds are subsequently (allowing time for collections) withdrawable either on demand or after a stated notice or lapse of time, whether interest is allowed thereon or not, and shall also include:
    1. Holders of demand and time certificates of deposit;
    2. Owners of certified or cashiers' checks and checks purchased from a licensee under Article 4 of this chapter; and
    3. Shareholders in credit unions, federal credit unions, and savings and loan associations to the extent that funds paid in by them are withdrawable within the terms of this definition.
18. "Evidence of indebtedness" means a note, draft, or similar negotiable or nonnegotiable instrument.
19. "Federal credit union" means an association organized pursuant to the Federal Credit Union Act, 12 U.S.C. Sections 1750-1795i.
20. "Fiduciary" means an executor, administrator, guardian, receiver, trustee, assignee for benefit of creditors, or one acting in a similar capacity.
21. "Financial institution" means:
    1. A bank;
    2. A trust company;
    3. Reserved;
    4. A credit union;
    5. A corporation licensed to engage in the business of selling payment instruments in this state on April 1, 1975, or so licensed pursuant to Article 4 of this chapter;
    6. Business development corporations existing on April 1, 1975, pursuant to the former "Georgia Business Development Corporation Act of 1972," approved April 3, 1972 (Ga. L. 1972, p. 798), or organized pursuant to Article 6 of this chapter;
    7. An international bank agency doing business in this state on April 1, 1975, pursuant to the former "International Bank Agency Act," approved April 6, 1972 (Ga. L. 1972, p. 1140), or authorized to do business in this state pursuant to Article 5 of this chapter;
    8. In addition, as the context requires, a national bank, savings and loan association, or federal credit union for the purpose of the following provisions:
       1. Code Section 7-1-2, relating to findings of the General Assembly;
       2. Code Section 7-1-8, relating to supplementary principles of law;
       3. Code Section 7-1-37, relating to restrictions on officials and personnel;
       4. Code Section 7-1-70, relating to disclosure of information;
       5. Code Section 7-1-90, relating to judicial review of department action;
       6. Code Sections 7-1-111 and 7-1-112, relating to emergency closings and business restrictions;
       7. Paragraph (3) of subsection (a) of Code Section 7-1-394, relating to criteria to be considered in approving new banks;
       8. Code Section 7-1-840, relating to criminal prosecutions; and
       9. Code Section 7-1-841, relating to application of Title 16 provisions;
    9. A bank holding company as defined in Code Section 7-1-605 for the purposes of Code Sections 7-1-61, 7-1-71, and 7-1-91;
    10. Banks chartered by states other than Georgia for the purposes of paragraph (10) of Code Section 7-1-261, relating to agency relationships; and
    11. Federal credit unions for the purposes of Part 6 of Article 2 of this chapter, relating to deposits, safe-deposit agreements, and money received for transmission, and Article 8 of this chapter, relating to multiple-party accounts.
22. "Insolvency" means:
    1. Inability to meet liabilities as they become due in the regular course of business; or
    2. Insufficiency in actual cash market value of assets to pay liabilities to depositors and other creditors.

    (22.5) "Main office" means the principal banking location of a bank as such location appears in the records of the Department of Banking and Finance. If a bank does not designate a main office, the department shall choose a banking location of the bank to be the main office.

23. "National bank" means a national banking association organized pursuant to 12 U.S.C. Section 21-215b.
24. Reserved.
25. "Paid-in capital" means the sum of the considerations received in the sale or exchange of shares of a bank or trust company in excess of the amount of the capital stock and the expense fund required by Code Section 7-1-396 and includes the surplus, if any, created by or arising out of a reduction of the capital stock of such financial institution effected in a manner permitted by law, any amounts properly regarded as surplus of such financial institution on April 1, 1975, and any amounts transferred from the expense fund as permitted by Code Section 7-1-412.
26. "Person" means an individual, trust, general or limited partnership, unincorporated association (except a joint-stock association), or any other form of unincorporated enterprise.
27. "Principal court" means the superior court of the county where the registered office of a financial institution is located or, in the case of a proposed financial institution, will initially be located, as shown in its articles or application for authority to commence business. Whenever under this chapter the principal court is authorized to take any action but lacks, because of constitutional restrictions, jurisdiction or venue over the person or corporation against which such action is to be taken or over the subject matter which is to be affected by its action, then such action may be taken by the superior court of this state in which jurisdiction and venue are proper or, in the absence of any such court, by a court of another state, a federal court, or a court of a foreign country in which jurisdiction and venue are proper.
28. "Public body" means an agency, authority, board, commission, instrumentality, or similar entity which is part of or connected with the government or political subdivision referred to in the context.
29. "Public sale" means a sale:
    1. Held at a place reasonably available to persons who might desire to attend and submit bids;
    2. At which those attending shall be given the opportunity to bid on a competitive basis;
    3. At which the sale, if made, shall be made to the highest and best bidder; and
    4. Except as otherwise provided in Title 11 for advertising or dispensing with the advertising of public sales, of which notice is given by advertisement once a week for two weeks in the newspaper in which the sheriff's advertisements are published in the county where the sale is to be held, and which notice shall state the day and hour, between 9:00 A.M. and 5:00 P.M., and the place of sale and shall briefly identify the goods to be sold.

    (29.5) "Registered agent" means the person or corporation on whom service of process is to be made in a proceeding against a bank. Written notice of any change in the identity or address of a bank's registered agent must be delivered to the Department of Banking and Finance in addition to and at the same time as such notice is filed with the Secretary of State. The provisions of Part 1 of Article 5 of Chapter 2 of Title 14 shall apply to any such registered agent.

30. "Registered office" means the location of the registered agent and may be a banking location.

    (30.5) "Retained earnings" means the balance of the net profits, income, gains, and losses from the date of incorporation or from the latest date when a deficit was last eliminated of a financial institution whose articles were granted by the Secretary of State and excludes subsequent distributions to shareholders and transfers to appropriated retained earnings. Retained earnings shall also include any portion of paid-in capital or appropriated retained earnings or, in the case of other organizations, equivalent funds, allocated to retained earnings in mergers, consolidations, or acquisitions of all or substantially all of the property or assets of another such financial institution or other organization permitted by law.

31. "Savings and loan association" means an association created pursuant to the Home Owners' Loan Act, 12 U.S.C. Sections 1461-1470, including a federal savings bank.
32. "Savings bank" means a state chartered bank that has powers no greater than a state bank as provided in this chapter but that may lend and invest in commercial loans in an aggregate amount that does not exceed 50 percent of its total assets. Such bank may elect, subject to department approval, or the department may require that the savings bank comply with selected provisions of the Home Owners' Loan Act that in the judgment and discretion of the department would be consistent with the charter and purpose of the bank. For the purposes of this paragraph, the term "commercial loan" means a loan for business, commercial, corporate, or agricultural purposes.
33. "Shareholder" means the owner of shares in a financial institution.
34. "Shares" means the units into which the proprietary interest of the institution is divided.

    (34.1) "State savings and loan association" means a bank which pays interest on substantially all of its depositors' funds and the majority of whose loans are secured by first liens on or other security interest in residential real property or upon the security of its deposits.

35. "Statutory capital base" means the sum of the common equity tier 1 capital, as defined by applicable federal law, and the allowance of loan and lease losses, as defined by applicable federal law, as reported in the bank's most recent Consolidated Report of Condition and Income; provided, however, that the department may enact regulations to phase in the revision to this definition for those banks that will have a decreased statutory capital base as of July 1, 2017. If significant capital changes occur after the filing of the Consolidated Report of Condition and Income which causes the common equity tier 1 capital to increase or decrease by 5 percent or more, then the statutory capital base will be immediately recalculated at the time of the capital change and it will be effective until the filing of the next Consolidated Report of Condition and Income.
36. "Subject to check" includes withdrawal or transfer by negotiable or transferable order or authorization even though such order or authorization does not constitute a check under Code Section 11-3-104.
37. "Subsidiary" means a corporation controlled by a financial institution which owns at least a majority of its voting shares.
38. "Third-party payment service" means any system employing checks, drafts, computer transmissions, or other techniques by which a depositor may effect payment to third parties.
39. "Treasury shares" means shares of a financial institution which have been issued, have been subsequently acquired by, and belong to the financial institution otherwise than in a fiduciary capacity and have not been canceled. Such shares shall be deemed to be "issued" but not "outstanding" shares.
40. "Trust company" means a corporation existing under the laws of this state on April 1, 1975, or organized under this chapter and authorized by law to engage in the business of acting as a fiduciary.

(Code 1933, § 41A-102, enacted by Ga. L. 1974, p. 705, § 1; Ga. L. 1975, p. 445, § 1; Ga. L. 1977, p. 730, § 1; Ga. L. 1980, p. 972, § 1; Ga. L. 1981, p. 1566, § 1; Ga. L. 1982, p. 3, § 7; Ga. L. 1982, p. 2496, §§ 1, 2; Ga. L. 1983, p. 493, § 2; Ga. L. 1984, p. 949, § 1; Ga. L. 1985, p. 258, § 1; Ga. L. 1986, p. 458, § 1; Ga. L. 1991, p. 94, § 7; Ga. L. 1995, p. 673, §§ 1, 2; Ga. L. 1996, p. 6, § 7; Ga. L. 1998, p. 795, §§ 1, 2; Ga. L. 2000, p. 174, § 1; Ga. L. 2001, p. 362, § 24; Ga. L. 2001, p. 970, § 1; Ga. L. 2005, p. 826, § 1/SB 82; Ga. L. 2006, p. 72, § 7/SB 465; Ga. L. 2007, p. 502, § 1/SB 70; Ga. L. 2009, p. 86, § 1/HB 141; Ga. L. 2011, p. 518, § 1/HB 239; Ga. L. 2012, p. 775, § 7/HB 942; Ga. L. 2015, p. 344, § 1/HB 184; Ga. L. 2015, p. 996, § 3C-1/SB 65; Ga. L. 2016, p. 390, § 7-1/HB 811; Ga. L. 2017, p. 193, § 1/HB 143.)

The 2015 amendments. The first 2015 amendment, effective July 1, 2015, in paragraph (21), substituted "payment instruments" for "checks" in subparagraph (21)(E), rewrote subparagraphs (21)(I) and (21)(J), and, in subparagraph (21)(K), substituted "Federal credit unions for" for "For" at the beginning and deleted ", 'financial institution' shall also include federal credit unions" following "accounts" at the end; substituted "12 U.S.C. Sections 1461-1470" for "of 1933, 12 U.S.C. Sections 1461-1468" in the middle of paragraph (31); and, in paragraph (32), deleted the comma following "require" and deleted "of 1933" following "Act" in the middle of the second sentence. The second 2015 amendment, effective January 1, 2016, rewrote paragraph (29), which formerly read: " 'Public sale' means a sale as defined in paragraph (31.1) of Code Section 11-1-201."

The 2016 amendment, effective July 1, 2016, in paragraph (7), in the first sentence, inserted "the term" near the middle, deleted "a building and loan association," following "credit union," and substituted "Article 4 of this chapter, but shall" for "Article 4 of this chapter. 'Bank' shall"; substituted "Reserved" for " 'Building and loan association' means such an association as defined in paragraph (1) of subsection (a) and subsections (b) and (c) of Code Section 7-1-770" in paragraph (8); deleted "building and loan associations," following "federal credit unions," in subparagraph (17)(C); substituted "Reserved" for "A building and loan association" in subparagraph (21)(C), rewrote subparagraph (21)(H), and, in subparagraph (21)(K), substituted "safe-deposit" for "safe deposit" and "multiple-party accounts" for "multiple party deposit accounts".

The 2017 amendment, effective June 1, 2017, in paragraph (24), substituted "Reserved." for "'Net assets' means the amount by which the total assets exceed the total debts of a financial institution. Total assets shall include but not be limited to both tangible and intangible assets, including prepaid expenses, prepaid taxes, and accrued income using book values determined in accordance with generally accepted accounting principles applicable to financial institutions. Total assets shall not include intangible assets in the form of good will, core deposit intangibles, or other intangible assets related to the purchase, acquisition, or merger of a bank charter. Total debts shall include all liabilities, other than contingent liabilities, including accrued expenses, deferred or unearned income, and valuation reserves, all determined in accordance with generally accepted accounting principles applicable to financial institutions."; and substituted the present provisions of paragraph (35) for the former provisions, which read: "'Statutory capital base' means the sum of the capital stock, paid-in capital, appropriated retained earnings, and capital debt of a bank or trust company less any amount of good will, core deposit intangibles, or other intangible assets related to the purchase, acquisition, or merger of a bank charter or accumulated deficit (negative retained earnings).".