850-864
FINANCIAL CODE
SECTION 850-864
850. A bank account by or in the name of a minor shall be held for
the exclusive right and benefit of such minor and shall be paid to
such minor or to his order and payment so made is a valid release and
discharge to the bank for such deposit or any part thereof.
851. A bank account by or in the name of a married person shall be
held for the exclusive right and benefit of the person, shall be free
from the control or lien of any other person except a creditor, and
shall be paid to the person or to the order of the person, and
payment so made is a valid and sufficient release and discharge to
the bank for the deposit or any part thereof.
852. A bank account that is a multiple-party account as defined in
Section 5132 of the Probate Code is governed by Part 2 (commencing
with Section 5100) of Division 5 of the Probate Code.
854. No bank, directly or indirectly, by any device whatever, shall
pay any interest on any demand deposit except to the extent that the
payment of interest on demand deposits is permitted to member banks
of the Federal Reserve System or to banks whose deposits are insured
by the Federal Deposit Insurance Corporation or any successor federal
agency insuring bank deposits. This section shall not apply to any
deposit which is payable only at an office of the bank located
outside of the states of the United States and the District of
Columbia.
854.1. Notwithstanding Section 10145 of the Business and
Professions Code or any other provision of law, but subject to the
limitations of Section 854, benefits accruing from the placement in a
noninterest bearing account of a financial institution of funds
received by a real estate broker who collects payments or provides
services in connection with a loan secured by a lien on real property
under subdivision (d) of Section 10131 or Section 10131.1 of the
Business and Professions Code shall inure to the broker, unless
otherwise agreed in writing by the broker and the lender or note
owner on the loan. A borrower shall receive at least 2 percent simple
interest per annum on impound account payments covered by Section
2954.8 of the Civil Code. For purposes of this section "financial
institution" means any institution the business of which is engaging
in financial activities as described in Section 1843 (k) of Title 12
of the United States Code.
854.2. (a) Notwithstanding Section 10145 of the Business and
Professions Code or any other provision of law, benefits accruing
from the placement in an interest bearing account of a financial
institution of funds received by a real estate broker, as defined in
Section 10131 of the Business and Professions Code, who collects
payments or provides services for an institutional investor in
connection with a loan secured by commercial real property may inure
to the real estate broker, if agreed to in writing by the real estate
broker and that institutional investor as to that loan.
(b) For purposes of this section, the following definitions shall
apply:
(1) "Commercial real property" means real estate improved with
other than a one-to-four family residence.
(2) "Financial institution" means any institution the business of
which is engaging in financial activities as described in Section
1843(k) of Title 12 of the United States Code.
(3) "Institutional investor" has the meaning set forth in
subdivision (i) of Section 50003.
857. (a) In this section:
(1) "Creditor" includes, but is not limited to, a depositor.
(2) "Insolvency," when used with respect to a bank, means that the
bank is unable to pay its debts as they come due.
(b) This section does not apply to any of the following:
(1) Any transaction authorized under Section 1203 or 1205.
(2) Any transaction made by a bank in the ordinary course of its
business.
(c) No bank may pay or secure a creditor if the bank does so (1)
after committing an act of insolvency or in contemplation of
insolvency and (2) with a view to preventing the application of its
assets in the manner prescribed in Article 1 (commencing with Section
3100) of Chapter 17 or with a view to the preference of one creditor
to another.
(d) Any transaction made by a bank in violation of this section is
void.
858. An overdraft of more than 90 days standing shall not be
allowed as an asset of any bank.
860. A bank may act as a depositary, paying agent, trustee, or
fiscal agent for the holding or handling of public funds or
securities notwithstanding the fact that a member of the legislative
body or an officer or employee of the depositor is an officer,
employee, or stockholder of such bank, or of a holding company that
owns any of the stock of such bank. Such member of a legislative
body, or such officer or employee thereof, shall not be deemed
"interested in any contract" as that phrase is used in Section 1090
of the Government Code, if his sole interest is the fact that he is
an officer, employee, or stockholder of the bank selected to act as
such depositary, paying agent or fiscal agent.
An officer or employee of a local public agency shall be deemed to
have only a "remote interest" in a contract, as that phrase is used
in Section 1091 of the Government Code, where such contract is
entered into without competitive bidding under a procedure
established by law, if his sole interest is that of an officer,
director, or employee, of a bank, bank holding company, or savings
and loan association with which a party to the contract has the
relationship of borrower or depositor, debtor or creditor, and if the
conditions of subdivision (a) of Section 1091 of the Government Code
are met.
861. When a statement of account has been rendered by a bank to a
depositor accompanied by vouchers, if any, which are the basis for
debit entries in such account, such account shall, after the period
of four years from the date of its rendition, in the event no
objection thereto has been theretofore made by the depositor, be
deemed finally adjusted and settled and its correctness conclusively
presumed and such depositor shall thereafter be barred from
questioning the correctness of such account for any cause.
A statement of account within the meaning of this section shall be
deemed to have been rendered on a savings or time account when the
bank, by making a notation in the depositor's bank book or in some
other manner reasonably calculated to give notice thereof to the
depositor indicates that a certain sum is the correct balance of the
account.
Nothing herein shall be construed to relieve the depositor from
the duty now imposed by law of exercising due diligence in the
examination of such account and vouchers, if any, when rendered by
the bank and of immediate notification to the bank upon discovery of
any error therein, nor from the legal consequences of neglect of such
duty; nor to prevent the application of subsection (3) of Section
340 of the Code of Civil Procedure to cases governed thereby.
863. (a) No bank shall impose any charge on a savings account or on
a depositor for the failure of a depositor to deposit, or for the
late deposit of, any agreed periodic installment deposit into that
account. A bank shall pay interest on savings accounts as to which a
depositor has agreed to make periodic installment deposits at a rate
of interest per annum that is not less than the lowest rate paid on
other types of savings deposits.
(b) As used in this section "savings account" means a Christmas
club account, a vacation club account, or other similar periodic
installment deposit account maintained by a natural person,
irrespective of its classification as a savings deposit or time
deposit open account for purposes of state or federal law or
regulations.
864. (a) For the purposes of this section:
(1) "Customer" means one or more natural persons.
(2) "Debt" means an interest-bearing obligation or an obligation
which by its terms is payable in installments, which has not been
reduced to judgment, arising from an extension of credit to a natural
person primarily for personal, family, or household purposes, and
does not mean a charge for bank services or a debit for uncollected
funds or for an overdraft of an account imposed by a bank on a
deposit account.
(b) A bank is limited in exercising any setoff for a debt claimed
to be owed to the bank by a customer in that a setoff shall not
result in an aggregate balance of less than one thousand dollars
($1,000) as shown on the records of the bank for all demand deposit
accounts maintained by a customer with the bank or any branch
thereof.
(c) Not later than the day following the exercise of any setoff
with respect to a deposit account for any debt claimed to be owed to
the bank by a customer, the bank shall deliver to each customer
personally or send by first-class mail postage prepaid to the address
of each customer as shown on the records of the bank a written
notice in at least 10-point type containing the following:
(1) A statement that the bank has set off a debt or a portion
thereof against the customer's deposit account, identifying the
account, and giving the respective balances before and after the
setoff.
(2) A statement identifying the debt set off against the account
and giving the respective balances due before and after the setoff.
(3) A statement that if the customer claims that the debt has been
paid or is not now owing, or that the funds in the deposit account
consist of moneys expressly exempt pursuant to Chapter 4 (commencing
with Section 703.010) of Division 2 of Title 9 of Part 2 of the Code
of Civil Procedure, and listed in the notice, the customer may
execute and return the notice to the bank by mail at the address
shown or personally to the bank branch where the customer's account
is maintained not later than 20 days after the date of mailing or
personal delivery.
(4) A statement that if the notice is executed and returned, the
bank may file an action in court to collect the debt; that if a
lawsuit is filed, the customer will be notified and have an
opportunity to appear and defend; and that if the bank is successful,
the customer will be liable for court costs, and attorney's fees, if
the debt so provides.
(5) A response form in at least 10-point type containing
substantially the following:
"The debt described in the Notice of Setoff
received from the
bank is ____ is not ____ my debt or the debt of
another
person in whose name the account is maintained.
"I claim that the debt:
____ has been paid.
____ is not now owing.
____ is not subject to setoff because the money
in the account is:
_____ Paid earnings (CCP 704.070)
Proceeds from execution sale of or
_____ insurance for loss
of a motor vehicle (CCP 704.010)
Proceeds from execution sale of
____ household furnishings
or other personal effects (CCP 704.020)
_____ Relocation benefits (CCP 704.180)
_____ Life insurance proceeds (CCP 704.100)
Disability and health insurance
_____ benefits (CCP
704.130)
_____ Workers' compensation benefits (CCP
704.160)
_____ Unemployment or strike benefits (CCP
704.120)
Retirement benefits including, but not
limited to,
_____ social security benefits (CCP 704.080,
704.110,
704.115)
Public assistance benefits including
welfare payments
_____ and supplemental security income (SSI)
or charitable
aid (CCP 704.170)
Proceeds from sale of or insurance for
damage or
_____
destruction of a dwelling (CCP
704.720, CCP 704.960)
Proceeds from execution sale of or
_____ insurance for loss
of tools of a trade (CCP 704.060)
Award of damages for personal
_____ injury (CCP 704.140)
or wrongful death (CCP 704.150)
Financial aid paid by an institution
of higher
_____ education to a student for expenses
while attending
school (CCP 704.190)
"I declare under penalty of perjury under the
laws of the State of
California that the foregoing is true and correct.
Date: __________ Signed: _______________________"
(Customer)
(d) If the response form described in subdivision (c) executed by
the customer is received by the bank not later than 20 days after the
date of mailing or personal delivery of the written notice, the
amount of the setoff for any debt claimed to be owed to the bank by a
customer, and any bank service charges resulting from the setoff,
shall be reversed and such amount shall be credited to the deposit
account not later than the end of the business day following receipt
of such executed response form.
(e) The limitations provided in this section do not apply to a
deposit account, other than a demand deposit account, in which the
bank has a security interest expressed by a written contract as
collateral for the debt owing to the bank by the customer.
(f) The limitations provided in this section do not apply when a
customer previously has authorized a bank in writing to periodically
debit a deposit account as the agreed method of payment of the debt.
(g) The limitations provided in this section shall apply only to
the exercise by a bank a setoff with respect to debts claimed to be
owing to it by customers on or after July 1, 1976.
(h) Nothing in this section shall prejudice a person's right to
assert exemptions under Chapter 4 (commencing with Section 703.010)
of Division 2 of Title 9 of Part 2 of the Code of Civil Procedure, or
to assert a claim or defense as to the validity of the debt, in a
judicial proceeding.