295-302.3
FINANCIAL CODE
SECTION 295-302.3
295. In this article: (a) "Appropriate licensee business" means the business that a licensee may conduct in accordance with the charter or license that the commissioner has issued to that licensee. (b) "Customer" means a depositor of a bank, a member of a credit union, or a customer of any other licensee. (c) "Holding company" shall have the meaning set forth in Section 3700. (d) "Officer of a subject institution" means any director, officer, official, or employee of the subject institution. (e) "Person" means a subject institution or a subject person. (f) "Subject institution" means any of the following: (1) Licensee. (2) Subsidiary of a licensee. (3) Foreign (other state) or foreign (other nation) bank or credit union that maintains an office in this state, with respect to any such office other than a national bank or federal credit union. (4) Any other person lawfully conducting the business of a bank or credit union in this state other than a national bank or federal credit union. (g) "Subject person," when used with respect to a subject institution, means any of the following: (1) Director, officer, employee, or agent of the subject institution. (2) Member, consultant, joint venture partner, or other person that participates in the affairs of a subject institution. (3) Independent contractor, including any attorney, appraiser, or accountant, who knowingly or recklessly participates in any of the following acts if the act caused or is likely to cause more than a minimal financial loss to, or a significant adverse effect on, the subject institution: (A) A violation of any applicable law, regulation, or order. (B) A breach of fiduciary duty. (C) An unsafe or unsound act. (h) "Violation" includes any act performed, alone or with other persons, for or toward causing, bringing about, participating in, counseling, aiding, or abetting a violation of any applicable statute, regulation, provision of a written order issued by the commissioner, or provision of a written agreement made between the commissioner and a subject institution or subject person. 295.1. Any subject person who is entitled to a hearing pursuant to this article may waive that right at any time. A waiver under this section shall relieve the commissioner from having to issue a formal notice of hearing that would otherwise be required by this article. 295.2. (a) Within 30 days after an order is issued pursuant to Section 297, 298.1, 299, 300.1, or 301.1, or subdivision (c) of Section 300.2, the person to whom the order is issued may file with the commissioner an application for a hearing on the order. (b) If the commissioner fails to commence the hearing within 15 business days after the application is filed with the commissioner or within any longer period to which the person subject to the order consents, the order shall be deemed rescinded. (c) Within 30 days after the hearing, or within any longer period to which the person consents, the commissioner shall affirm, modify, or rescind the order. If the commissioner fails to affirm, modify, or rescind the order within that time limit, the order shall be deemed rescinded. (d) The right to petition for judicial review of the order shall not be affected by the failure of the person subject to the order to apply to the commissioner for a hearing on the order pursuant to subdivision (a). 295.3. In addition to any other action or requirement the commissioner deems necessary or advisable, an order issued pursuant to Section 297.1, 298, 298.1, 299, 300, 300.1, or 300.2 may require the person subject to the order to do any of the following: (a) Make restitution or provide reimbursement, indemnification, or guarantee against loss, if the subject institution, subject person, or holding company was unjustly enriched by the action or violation or if the action or violation involved a reckless disregard for any provision of this division, of any regulation or order issued under this division, of any other applicable law, or of any agreement with the commissioner. (b) Restrict the growth of the subject institution. (c) Dispose of any loan or other asset. (d) Correct violations of law. (e) Employ qualified officers or employees, who may be subject to approval of the commissioner. (f) Limit the activities or functions of the subject institution, subject person, or holding company. 295.4. If the commissioner takes possession of a subject institution without a prior notice or hearing, or takes action against a subject person without prior notice or hearing, the commissioner shall, upon taking possession or taking that action, concurrently provide to the subject institution or subject person a written order. The order shall set forth the condition or conditions of the subject institution or action or actions of the subject person that constitute the basis or bases for the commissioner's action. In any case where the commissioner takes possession of a subject institution, the commissioner shall establish, by clear evidence, the basis for his or her action. 296. (a) The commissioner may bring an action in the name of the people of this state in superior court to enjoin any violation of, to enforce compliance with, or to collect any penalty or other liability imposed under, any law subject to the jurisdiction of the commissioner. The commissioner may bring an action in the name of the people of this state in superior court to enjoin any violation of, to enforce compliance with, or to collect any penalty or other liability imposed under, any regulation promulgated under the power of the commissioner. The commissioner may bring an action in the name of the people of this state in superior court to enjoin any violation of, to enforce compliance with, or to collect any penalty or other liability imposed under, any (1) agreement entered into with the commissioner or (2) order issued by the commissioner. Upon a proper showing, a permanent or preliminary injunction, restraining order, or writ of mandate shall be granted, and a monitor, receiver, conservator, or other designated fiduciary or officer of the court may be appointed for the defendant or the defendant's assets, or other relief may be granted as appropriate. (b) A receiver, monitor, conservator, or other designated fiduciary officer of the court appointed by the court pursuant to this section may, with the approval of the court, exercise all of the powers of the defendant's officers, directors, partners, trustees, or persons who exercise similar powers and perform similar duties. No action at law or in equity may be maintained by any party against the commissioner or a receiver, monitor, conservator, or other designated fiduciary or officer of the court by reason of his or her exercise of those powers or performing these duties pursuant to the order of, or with the approval of, the court. (c) If the commissioner finds that it is in the public interest, the commissioner may include in any action authorized by subdivision (a) a claim for ancillary relief, including a claim for restitution, disgorgement, or damages on behalf of the person injured by the act or practice constituting the subject matter of the action, and the court shall have jurisdiction to award ancillary relief. (d) Neither the provision of subdivision (a) that authorizes the appointment of a monitor, receiver, conservator, or other designated fiduciary or officer of the court nor any provision of subdivision (b) or (c) applies to any of the following: (1) A licensee that is authorized by the commissioner to transact appropriate licensee business. (2) A foreign (other state) or foreign (other nation) bank or credit union that maintains an office in this state in accordance with federal law, the law of this state, and the law of the bank or credit union's domicile. (e) The provisions of this section that authorize the commissioner to bring actions and seek relief are not intended to, and do not, affect any right that any other person may have to bring the same or similar actions or to seek the same or similar relief. 297. If the commissioner finds that a person has conducted, or that there is reasonable cause to believe that a person is about to conduct, business that requires a license issued by the commissioner and that person has not been issued the required license, the commissioner may, without any prior notice or hearing, order the person to cease and desist from conducting any unauthorized business unless and until the person is issued a license to engage in appropriate licensee business. 298. If, after notice and an opportunity to be heard, the commissioner finds any of the factors set forth in subdivision (a) or (b) with respect to any subject institution, subject person, or any holding company, the commissioner may order the subject institution, subject person, or holding company to cease and desist from the act or violation: (a) That the subject institution, subject person, or holding company has engaged or participated, is engaging or participating, or that there is reasonable cause to believe that the subject institution, subject person, or holding company is about to engage or participate, in any unsafe or unsound act with respect to the business of the subject institution. (b) That the subject institution, subject person, or holding company has violated, is violating, or that there is reasonable cause to believe that the subject institution, subject person, or holding company is about to violate any: (1) Provision of any division subject to the jurisdiction of the commissioner. (2) Provision of any regulation promulgated by, or subject to the jurisdiction of, the commissioner. (3) Provision of any other applicable law. (4) Provision of any written agreement between the subject institution, subject person, or holding company, and the commissioner. 298.1. If the commissioner finds that any of the factors set forth in Section 298 is true with respect to any subject institution, subject person, or holding company, and that the action, omission, or violation is likely to have any of the consequences set forth in subdivisions (a) to (d), inclusive, the commissioner may, without any prior notice or opportunity to be heard, order the subject institution or subject person to cease and desist from the following: (a) Any act, omission, or violation that may cause the insolvency of the subject institution. (b) Any act, omission, or violation that may cause significant dissipation of the assets or earnings of the subject institution. (c) Any act, omission, or violation that may weaken the condition of the subject institution. (d) Any act, omission, or violation that may otherwise prejudice the interests of the customers of the subject institution. 299. If the commissioner finds that a subject institution's books or records are so incomplete or inaccurate that the commissioner is unable through the normal supervisory process to determine the financial condition of the subject institution or the details or purpose of any transaction or transactions that may materially affect the financial condition of the subject institution, the commissioner may, without any prior notice or hearing, order the subject institution to do either of the following: (a) Cease any activity or practice that gave rise, in whole or in part, to the incomplete or inaccurate state of the books or records. (b) Take affirmative action to restore the books or records to a complete and accurate state. 300. If, after notice and an opportunity to be heard, the commissioner finds that any of the factors set forth in subdivision (a), any of the factors set forth in subdivision (b), and any of the factors set forth in subdivision (c) are true with respect to a subject person of a subject institution or holding company, the commissioner may issue an order suspending or removing the subject person from the subject person's office, if any, with the subject institution or holding company, and prohibiting the subject person from participating in any manner in the conduct of the affairs of the subject institution or holding company without the approval of the commissioner: (a) (1) That the subject person has, directly or indirectly, violated, or has caused a subject institution to violate, any provision of any: (A) Division subject to the jurisdiction of the commissioner. (B) Regulation promulgated by, or subject to the jurisdiction of, the commissioner. (C) Other applicable law. (D) Order issued by the commissioner or under the commissioner's authority. (E) Written agreement between the subject institution, subject person, or holding company and the commissioner. (2) That the subject person has, directly or indirectly, engaged or participated in any unsafe or unsound act in connection with the business of the subject institution, holding company, or any other business institution. (3) That the subject person has, directly or indirectly, engaged or participated in any act that constitutes a breach of the subject person's fiduciary duty. (b) That, by reason of the act, violation, or breach of fiduciary duty described in subdivision (a): (1) The subject institution, holding company, or business institution has suffered or will probably suffer financial loss or other harm. (2) The rights or interests of the customers or members of the subject institution have been or could be prejudiced. (3) The subject person has received financial gain or other benefit. (c) That the act, violation, or breach of fiduciary duty described in subdivision (a) either involves dishonesty on the part of the subject person or demonstrates the subject person's willful or continuing disregard for the safety or soundness of the subject institution, holding company, or business institution. 300.1. If the commissioner finds that any of the factors set forth in subdivision (a) of Section 300, any of the factors set forth in subdivision (b) of Section 300, and any of the factors set forth in subdivision (c) of Section 300 are true with respect to a subject person of a subject institution, and that it is necessary or advisable for the protection of the subject institution or holding company, or the rights or interests of the customers or members of the subject institution, the commissioner may, without any prior notice or opportunity to be heard, issue an order suspending the subject person from the subject person's office, if any, with the subject institution or holding company, and prohibiting the subject person from participating in any manner in the conduct of the affairs of the subject institution or holding company without the prior approval of the commissioner. 300.2. (a) If the commissioner finds that any of the factors set forth in paragraph (1) and the factor set forth in paragraph (2) are true with respect to a subject person or former subject person of a subject institution or holding company, the commissioner may, without any prior notice or opportunity to be heard, issue an order suspending the subject person or former subject person from his or her office, if any, with the subject institution or holding company and prohibiting him or her from further participating in any manner in the conduct of the affairs of the subject institution or holding company without the approval of the commissioner: (1) That the subject person or former subject person has been charged in an indictment issued by a grand jury or in an information, complaint, or similar pleading issued by a United States attorney, district attorney, or other governmental official or agency authorized to prosecute crimes, with commission of or participation in any of the following: (A) A crime that involves dishonesty or breach of trust and that is punishable by imprisonment for a term exceeding one year. (B) A criminal violation of any provision of this division. (C) A criminal violation of Section 1956, 1957, or 1960 of Title 18 of, or Section 5322 or 5324 of Title 31 of, the United States Code. (D) A criminal violation of a law of any jurisdiction other than the United States that is substantially similar to any of the statutes specified in subparagraph (C). (2) That continued or resumed service or participation by the subject person or former subject person may pose a threat to the rights or interests of the customers or members of the subject institution or may threaten to impair public confidence in the subject institution. (b) An order issued pursuant to subdivision (a) shall remain in effect until the indictment or the information, complaint, or similar pleading is finally disposed of or, if the order is earlier terminated by the commissioner, until the order is so terminated. (c) If the commissioner finds that the factors set forth in paragraphs (1) and (2) are true with respect to a subject person or former subject person of a subject institution or holding company, the commissioner may, without any prior notice or opportunity to be heard, issue an order suspending or removing the subject person or former subject person from his or her office, if any, with the subject institution or holding company and prohibiting him or her from further participating in any manner in the affairs of the subject institution or holding company without the approval of the commissioner: (1) That the subject person or former subject person has been finally convicted of any crime of the type described in paragraph (1) of subdivision (a). For purposes of this paragraph, an agreement to enter a pretrial diversion or similar program is deemed to be a conviction. (2) That continued or resumed service or participation by the subject person or former subject person may pose a threat to the interests of the customers of the subject institution or may threaten to impair public confidence in the subject institution. (d) The fact that any subject person of a subject institution charged with a crime of the type described in paragraph (1) of subdivision (a) is not finally convicted of the crime does not preclude the commissioner from issuing an order regarding the subject person pursuant to any other provision of this article. 300.3. (a) Any subject institution, subject person of a subject institution, or former subject person of a subject institution to whom an order is issued under Sections 300 to 300.2, inclusive, may apply to the commissioner to modify or rescind the order. In deciding whether to grant or deny the application, the commissioner shall consider whether it is in the public interest to modify or rescind the order and whether it is reasonable to believe that the subject person or former subject person will, if and when he or she becomes a subject person of a subject institution or holding company, comply with all applicable provisions of law, or any regulation or order issued by the commissioner. (b) The right of any subject person or former subject person of a subject institution or holding company to whom an order is issued under Sections 300 to 300.2, inclusive, to petition for judicial review of the order shall not be affected by the failure of the subject institution or holding company to apply to the commissioner pursuant to subdivision (a) to modify or rescind the order. 300.4. (a) In this section, "subject depository institution" means any: (1) Licensee or any bank or credit union that maintains an office in this state. (2) Affiliate of any of the institutions specified in paragraph (1). (3) Subsidiary of any of the institutions specified in paragraph (1). (4) Holding company of any of the institutions specified in paragraph (1). (b) It is unlawful for any subject person or former subject person of a subject institution to whom an order is issued under Sections 300 to 300.2, inclusive, willfully to do, directly or indirectly, any of the following without the approval of the commissioner, so long as the order is in effect: (1) Act as a subject person of any subject depository institution. (2) Vote any shares or other securities having voting rights for the election of any person as a director of a subject depository institution. (3) Solicit, procure, transfer or attempt to transfer, or vote any proxy, consent, or authorization with respect to any shares or other securities of a subject depository institution having voting rights. (4) Otherwise to participate in any manner in the affairs of any subject depository institution. 301. The commissioner may revoke or suspend any license issued by, or under the authority of, the commissioner, if, after notice and opportunity to be heard, the commissioner finds any of the following: (a) The licensee has violated, is violating, or that there is reasonable cause to believe that the licensee is about to violate, any provision of any of the following: (1) Any division subject to the jurisdiction of the commissioner. (2) Any regulation promulgated by, or subject to the jurisdiction of, the commissioner. (3) A provision of any other applicable law. (4) A provision of any order issued by the commissioner. (5) A provision of any written agreement between the licensee and the commissioner. (6) A condition imposed on any written approval granted by the commissioner. (b) Any fact or condition exists which, if it had existed at the time of the original application for the license, would be grounds for denying the application for the license. (c) The licensee is conducting its business in an unsafe manner. (d) The licensee is in such condition that it is unsafe or unsound for the licensee to transact appropriate licensee business. (e) The licensee has inadequate capital or net worth or is insolvent. (f) The licensee failed to pay any of its obligations as they came due or is reasonably expected to be unable to pay its obligations as they come due. (g) The licensee is the subject of an order for relief in bankruptcy, or has sought other relief under any bankruptcy, reorganization, insolvency, or moratorium law, or any person has applied for any such relief under any such law against the licensee and the licensee has by any affirmative act approved of, or consented to, the action or the relief has been granted. (h) The licensee has ceased to transact appropriate licensee business. (i) The licensee refuses to submit its books, papers, and affairs to the inspection of any examiner. (j) Any officer of the licensee refuses to be examined upon oath touching the concerns of the licensee. (k) The licensee has, with the approval of its board, requested the commissioner to take possession of its property and business. 301.1. If the commissioner finds that any of the factors set forth in Section 301 is true with respect to any licensee and that it is necessary for the protection of the public interest, the commissioner may issue an order immediately suspending or revoking the licensee's license. 302. If the commissioner finds that any of the factors set forth in subdivisions (a) to (k), inclusive, is true with respect to a licensee, the commissioner may by order, without any prior notice or opportunity to be heard, take possession of the property and business of the licensee: (a) The licensee has violated any provision of (1) any division subject to the jurisdiction of the commissioner, (2) any regulation promulgated by, or subject to the jurisdiction of, the commissioner, (3) any provision of any other applicable law, (4) any provision of any order issued by the commissioner, (5) any provision of any written agreement made between the commissioner and the licensee, or (6) a condition imposed on any written approval granted by the commissioner. (b) The licensee is conducting its business in an unsafe or unsound manner. (c) The licensee is in such condition that it is unsafe or unsound for the licensee to transact appropriate licensee business. (d) The licensee has inadequate capital or net worth or is insolvent. (e) If the licensee is a bank, the tangible shareholders' equity of the bank is less than the following: (1) If the bank is a commercial bank or industrial bank, the greater of three percent of the bank's total assets or one million dollars ($1,000,000). (2) If the bank is a trust company other than a commercial bank authorized to engage in trust business, one million dollars ($1,000,000). (f) The licensee failed to pay any of its obligations as they came due or is reasonably expected to be unable to pay its obligations as they come due. (g) The licensee has applied for an adjudication of bankruptcy, reorganization, arrangement, or other relief under any bankruptcy, reorganization, insolvency, or moratorium law, or that any person has applied for any such relief under any such law against the licensee and the licensee has by any affirmative act approved of or consented to the action or the relief has been granted. (h) The licensee has ceased to transact the business the licensee is authorized to conduct pursuant to its license. (i) The licensee refuses to submit its books, papers, and affairs to the inspection of any examiner. (j) Any officer of the licensee refuses to be examined upon oath touching the concerns of the licensee. (k) The licensee has, with the approval of its board, requested the commissioner to take possession of its property and business. 302.1. (a) If the commissioner takes possession of the property and business of a licensee pursuant to Section 302, the licensee may, within 10 days, apply to the superior court in the county where its head office is located to enjoin further proceedings. The court may, after citing the commissioner to show cause why further proceedings should not be enjoined and after a hearing, dismiss the application or enjoin the commissioner from further proceedings and order the commissioner to surrender the property and business of the licensee to the licensee or make any further order as may be just. The judgment of the court may be appealed by the commissioner or by the licensee as allowed by law. (b) At any time after the commissioner takes possession of the property and business of a licensee pursuant to Section 302, the licensee may, with the approval of the commissioner, resume business upon conditions as the commissioner may prescribe. 302.2. (a) Upon taking possession of the property and business of any licensee, the commissioner shall give notice of that fact to all persons holding or having in their possession any assets of the licensee. No person knowing of the taking, or who has been notified thereof, shall have a lien or charge upon any assets of the licensee for any payment, advance, or clearance thereafter made or for any liability thereafter incurred. (b) The giving of notice in accordance with this section shall not be deemed to be a prerequisite to the taking of possession of the property and business of the licensee. 302.3. The commissioner is deemed to take possession of the entire property and business of a licensee when the commissioner takes possession of the business and property of the head office of the licensee.