6-01 Department of Financial Institutions

Statutes > North Dakota Statutes > Chapter 6 Banks and Banking > 6-01 Department of Financial Institutions

Loading PDF...

TITLE 6BANKS AND BANKINGCHAPTER 6-01DEPARTMENT OF FINANCIAL INSTITUTIONS6-01-01.Management and control - State department of financial institutions -Local ordinances preempted.The state department of financial institutions is under thesupervision of the state banking board, state credit union board, and a chief officer designated as the commissioner of financial institutions.The state department of financial institutions hascharge of the execution of all laws relating to state banks, trust companies, credit unions, building and loan associations, mutual investment corporations, mutual savings corporations, banking institutions, and other financial corporations, exclusive of the Bank of North Dakota. A local governing body may not adopt or enforce a resolution or an ordinance regulating a financial institution or credit union.6-01-01.1. Regulatory fund established - Uses - Appropriation.1.There is hereby created a special fund designated as the financial institutions regulatory fund. The amounts received under the following chapters, and any other moneys received by the department of financial institutions, must be deposited into this fund: chapters 6-01, 6-03, 6-05, 6-06, 6-10, 13-04.1, 13-05, 13-08, 13-09, and 13-10.2.All moneys deposited in the financial institutions regulatory fund are reserved for use by the department of financial institutions to defray the expenses of the department in the discharge of its administrative and regulatory powers and duties as prescribed by law, subject to the applicable laws relating to the appropriation of state funds and to the deposit and expenditure of state moneys.The department of financialinstitutions is responsible for the proper expenditures of these moneys as provided by law.3.Any cash balance in the financial institutions regulatory fund after all current biennium expenditures are met must be carried forward in the financial institutions regulatory fund for the next succeeding biennium. The balance in this fund at the end of the current biennium, excluding fees collected for use in the next succeeding biennium, may not exceed twenty percent of the department's next succeeding biennial budget.4.All moneys derived from the investment of any portion of the financial institutions regulatory fund must be credited to the fund.6-01-02. Definitions. As used in this title, unless the context or subject matter otherwiserequires:1."Association", "banking association", or "state banking association" means any corporation organized under the laws of this state covering state banking associations, and all corporations, limited liability companies, partnerships, firms, or associations whose business in whole or in part consists of the taking of money on deposit, except national banks, trust companies, and the Bank of North Dakota.2."Bank" means any national bank, national banking association, corporation, state bank, state banking association, or savings bank, whether organized under the laws of this state or of the United States, engaged in the business of banking.3."Bank holding company" means bank holding company as defined in 12 U.S.C. 1841(a)(1).Page No. 14."Banking" means the business of receiving deposits, making loans, discounting commercial paper, issuing drafts, traveler's checks, and similar instruments, handling and making collections, cashing checks and drafts, and buying and selling exchange.5."Banking department" means the state department of financial institutions.6."Banking institution" means any bank, trust company, or bank and trust company organized under the laws of this state.7."Branch" means a place of business where deposits are received, checks paid, or money lent as a result of a bank that was merged into another bank pursuant to an interstate merger.8."Commissioner" means the commissioner of financial institutions.9."Corporate central credit union" means a credit union operated for the primary purpose of serving corporate accounts. A credit union is deemed to be a corporate central credit union when its total dollar amount of outstanding corporate loans plus corporate share and deposit holdings is equal to or greater than seventy-five percent of its outstanding loans plus share and deposit holdings.10."Credit union" means a cooperative, nonprofit association organized for the purposes of encouraging thrift among its members, creating a source of credit at a fair and reasonable rate of interest, and providing an opportunity for its members to improve their economic and social condition.11."Electronic" means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities.12."Electronic communication" means any form of communication, not directly involving the physical transmission of paper that creates a record that may be retained, retrieved, and reviewed by a recipient of the communication and may be directly reproduced in paper form by the recipient through an automated process.13."Electronic record" means a record created, generated, sent, communicated, received, or stored by electronic means.14."Electronic signature" means an electronic sound, symbol, or process attached to or logically associated with a record and signed or adopted by a person with the intent to sign the record.15."Financial institution" means any bank, industrial loan company, or savings and loan association organized under the laws of this state or of the United States.16."Merger" or "merge" means the merging or consolidation of two or more banks including the purchase of all or substantially all of the assets and assumption of liabilities of a bank, facility, or branch.17."Mutual investment corporation" or "mutual savings corporation" means a corporation organized to engage in the investment or savings business, but having no capital stock or a nominal capital stock.18."National bank" or "national banking association" means an institution chartered by the comptroller of the currency under the National Bank Act [12 U.S.C. 24].19."Record" means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.Page No. 220."Tier 1, tier 2, and tier 3 capital" means those terms as set under title 12, Code of Federal Regulations, part 325, in effect on August 1, 2009.21."Trust company" means any corporation formed for the purpose of transacting business as an annuity, safe deposit, surety, or trust company.6-01-03. State banking board and state credit union board.1.The state banking board consists of the commissioner and six members to be appointed by the governor, four of whom must each have had at least five years' experience in an executive capacity in the management of a state bank in the state of North Dakota, one of whom must have at least five years' experience in an executive capacity in the management of any state or national bank in North Dakota, and one of whom must be a laymember from the public at large. The term of office of the members of the board, other than the commissioner, is for a period of five years. In case of a vacancy in the board, by death, resignation, or removal of an appointed member, the vacancy must be filled by appointment by the governor for the unexpired term.The commissioner is the chairperson of the board and theattorney general is, ex officio, the attorney for the board.The assistantcommissioner shall serve as its secretary. The board shall hold regular meetings in January, March, May, July, September, and November of each year and special meetings at the call of the commissioner in such place as the commissioner may designate within the state of North Dakota. The members of the board, other than the commissioner, shall receive one hundred dollars per day while attending meetings, or in the performance of such special duties as the board may direct. Expense reimbursements for meals, lodging, and transportation must be at the same rate as those allowed state employees.2.The state credit union board consists of the commissioner and four members to be appointed by the governor. Two of the members of the state credit union board must have at least three years' experience as an officer, director, or committee member of a North Dakota state-chartered credit union, one member of the board must have had at least three years' experience as an officer, director, or committee member of a federally chartered credit union, and one member of the board must be a laymember from the public at large.The term of office of appointed boardmembers is five years. In case of a vacancy in the board, by death, resignation, or removal of an appointed member, the governor shall appoint an individual to fill the vacancy for the unexpired term.The commissioner chairs the board and theattorney general is, ex officio, the attorney for the board.The assistantcommissioner shall serve as its secretary. The members of the state credit union board are entitled to receive the same remuneration as is provided for the members of the state banking board. The state credit union board shall hold meetings in March, June, September, and December of each year and special meetings at the call of the commissioner in such places as the commissioner may designate within the state.3.The word "board" when used in this title includes the state banking board and the state credit union board.6-01-04.Powers and duties of the state banking board and state credit unionboard. The board may adopt rules for the government of financial corporations mentioned in section 6-01-01 to the extent the rules do not conflict with any law of this state or of the United States. The board shall make and enforce such orders as are necessary or proper to protect the public and the depositors or creditors of those financial corporations and institutions.The same powers are given to the state credit union board with reference to credit unionsas are granted to the state banking board with reference to financial corporations named in this chapter.Page No. 36-01-04.1. Removal of officers, directors, and employees of financial corporationsor institutions.1.The department of financial institutions or the board may issue and serve, upon any current or former officer, director, or employee of a financial corporation or institution subject to its jurisdiction and upon a financial corporation or institution involved, a complaint stating the basis for the board's or the department's belief that the current or former officer, director, or employee is engaging, or has engaged, in any of the following conduct:a.Violating any law, regulation, board order, or written agreement with the board;b.Engaging or participating in any unsafe or unsound practice; orc.Performing any act of commission or omission or practice which is a breach of trust or a breach of fiduciary duty.2.The complaint must contain a notice of opportunity for hearing pursuant to chapter 28-32. The date for the hearing must be set not less than thirty days after the date the complaint is served upon the current or former officer, director, or employee of a financial corporation or institution.The current or former officer, director, oremployee may waive the thirty-day notice requirement.3.If no hearing is requested within twenty days of the date the complaint is served upon the current or former officer, director, or employee, or if a hearing is held and the board finds that the record so warrants, and if the board finds that a financial corporation or institution has suffered or will probably suffer significant loss or other significant damage or that the interest of its depositors, shareholders, members, or creditors could be seriously prejudiced, it may enter an order suspending or removing the current or former officer, director, or employee.4.A contested or default suspension or removal order is effective immediately upon service on the current or former officer, director, or employee and upon a financial corporation or institution. A consent order is effective as agreed.5.Any current or former officer, director, or employee suspended or removed from any position pursuant to this section is not eligible, while under suspension or removal, to occupy any position within a financial corporation or institution in North Dakota until the suspension or removal is terminated by the department of financial institutions or board.6.When any current or former officer, director, employee, or other person participating in the conduct of the affairs of a financial corporation or institution is charged with a felony in state or federal court, involving dishonesty or breach of trust, the commissioner may immediately suspend the person from office or prohibit the person from any further participation in a financial corporation's or institution's affairs. The order is effective immediately upon service of the order on a financial corporation or institution and the person charged, and remains in effect until the criminal charge is finally disposed of or until modified by the board. If a judgment of conviction, a federal pretrial diversion, or similar state order or judgment is entered, the board may order that the suspension or prohibition be made permanent.Afinding of not guilty or other disposition of the charge does not preclude the commissioner or the board from pursuing administrative or civil remedies.6-01-04.2. Cease and desist orders.1.The department of financial institutions or the board may issue and serve upon a financial corporation or institution subject to its jurisdiction a complaint stating thePage No. 4factual basis for the department's or board's belief that the financial corporation or institution is engaging in any of the following conduct:a.An unsafe or unsound practice.b.A violation in the past or on a continuing basis of any law, regulation, board order, or written agreement entered into with the board.2.The complaint must contain a notice of opportunity for hearing pursuant to chapter 28-32. The date for the hearing must be set not less than thirty days after the date the complaint is served upon the financial corporation or institution. The financial corporation or institution may waive the thirty-day notice requirement.3.If the financial corporation or institution fails to respond to the complaint within twenty days of its service, or if a hearing is held and the board concludes that the record so warrants, the board may enter an order directing the financial corporation or institution to cease and desist from engaging in the conduct which was the subject of the complaint and hearing and to take corrective action.4.The commissioner or the board may enter an emergency, temporary cease and desist order if the commissioner or the board finds the conduct described in the complaint is likely to cause insolvency, substantial dissipation of assets, earnings, or capital of the financial corporation or institution, or substantial prejudice to the depositors, shareholders, members, or creditors of the financial corporation or institution.An emergency, temporary cease and desist order is effectiveimmediately upon service on the financial corporation or institution and remains in effect for no longer than sixty days or until the conclusion of permanent cease and desist proceedings pursuant to this section, whichever is sooner. An emergency, temporary cease and desist order may be issued without an opportunity for hearing. The financial corporation upon which such an order is served may apply to the district court of the county in which the financial corporation or institution is located for an order enjoining the operation of the emergency, temporary order.Theapplication for injunction and procedure upon application must comply with the requirements of section 6-07-14.6-01-04.3. Assessment of civil money penalties.1.The commissioner or the board may assess a civil money penalty against a financial institution or financial corporation, including state-chartered banks, credit unions, trust companies, and savings and loan associations, or an officer, director, employee, agent, or person participating in the conduct of the affairs of the financial institution or corporation, upon finding one or more of the following:a.Failure to comply with a permanent or temporary cease and desist order that has been voluntarily consented to or issued pursuant to section 6-01-04.2;b.Failure to comply with a final order that has been voluntarily consented to or issued following formal proceedings under chapter 28-32;c.Payment of dividends in violation of section 6-03-36;d.Loans and leases to one borrower or concern which exceed the limitations set forth in sections 6-03-59 and 6-03-59.1;e.Loans to directors, officers, and employees in violation of section 6-03-60;f.The intentional filing of inaccurate or misleading call reports required by section 6-03-70;Page No. 5g.Violations of loan limitations under subsection 1 of section 6-06-12;h.Loans in violation of section 6-06-14; ori.Failure to file notice of change of control under section 6-08-08.1.2.The commissioner or the board commences administrative proceedings to assess civil money penalties by serving a complaint on the respondent stating the factual basis for the commissioner's or board's belief that a violation has occurred and the amount of civil penalties that the complaint seeks to impose. The complaint must contain a notice of an opportunity for an administrative hearing conducted under chapter 28-32. The date for the hearing must be set not less than thirty days after the date the complaint is served upon the respondent. If assessment of civil money penalties are proposed based on conditions described in subdivisions c through i of subsection 1, a complaint may not be filed unless the respondent has been provided with prior orders, examination reports, or other written communications, and has willfully refused to take corrective action that the respondent was capable of taking at the time.3.If the respondent fails to answer the complaint within twenty days of its service, the commissioner or board may enter an order imposing civil money penalties upon the respondent.If a hearing is held and the board concludes that the record sowarrants, the board may enter an order imposing civil money penalties upon the respondent. The assessment order is effective and enforceable immediately upon service or upon a date specified in the order, and remains effective and enforceable until it is stayed, modified, terminated, or set aside by action of the board or a reviewing court.4.In determining the amount of civil penalty imposed, the commissioner or board shall consider the good faith of the financial institution or the person being assessed, the gravity of the violation and any previous violations. The commissioner or board may not impose a civil money penalty in excess of five thousand dollars for each occurrence and one hundred dollars per day for each day that the violation continues after service of an order. Any civil money penalties collected under this section must be paid to the state treasurer and deposited in the financial institutions regulatory fund.6-01-04.4. Prompt corrective action. The board may enter an order if the board findsthat a state bank is undercapitalized, significantly undercapitalized, or critically undercapitalized. For the purpose of this section, undercapitalized, significantly undercapitalized, and critically undercapitalized have the same definition as found in title 12, Code of Federal Regulations, part 325, section 103. The order may require an undercapitalized state bank to take prompt corrective action as the board determines reasonable to bring the bank to an adequately capitalized condition, including the submission and implementation of an acceptable capital restoration plan. For a significantly or critically undercapitalized state bank, the board may issue a temporary cease and desist order appointing a receiver, or with the consent of the federal deposit insurance corporation appoint a conservator or take such other action as may be better to resolve the problems of the state bank consistent with section 38 of the Federal Deposit Insurance Act of 1991 [Pub. L. 102-242; 105 Stat. 2253; 12 U.S.C. 1831(o) et seq.]. A bank that has been served with a complaint requesting the state banking board to issue a prompt corrective action under this section may request a hearing before the board within five days after service of the complaint upon the bank. A request for a hearing must be granted and the hearing must be held not later than ten days after the request is filed with the board. A complete record of the hearing must be established and maintained. On the basis of the hearing, the board may issue an order. The bank may appeal the board's order under this section to the district court of Burleigh County, North Dakota, within ten days after the board's order is served on the bank. The appeal is governed by chapter 28-32.Page No. 66-01-05.Taking of testimony and enforcement of orders.The board, thecommissioner, and the deputy examiners each have the power to subpoena witnesses, administer oaths, and generally to do and perform any and all acts and things necessary to the complete performance of the powers and duties imposed upon them in this title, and to enforce the provisions of law relating to financial institutions.For the purpose of enabling them toperform all the duties imposed upon them, the provisions of section 27-10-23 are applicable to their proceedings. Any and all orders made by the board are operative immediately and remain in full force until modified, amended, or annulled by the board, or by a court of competent jurisdiction in an action commenced by the party against whom such order has been issued.6-01-06. Appointment of receivers. The board, except as otherwise provided in thistitle, has authority and power to appoint, by its own order, receivers for insolvent corporations or institutions defined in this title. Such receivers have the same power and authority, and their acts have the same validity, as if they had been appointed under and by the direction of a district court. Nothing herein contained may be construed so as to take away from the courts the power to appoint receivers of such corporations or institutions at any stage of the proceedings and thus to terminate the receivership ordered by the board.6-01-07.Records of state banking board, state credit union board, andcommissioner. The state banking board and state credit union board shall keep a full and complete record of all their proceedings and of all orders made by them. The records and the proceedings of the boards and commissioner are open in accordance with sections 44-04-18 and 44-04-19. All reports, except supervisory reports of examination, made by or filed with the board or the commissioner relating to any financial institution, must be open to inspection and examination by stockholders, shareholders, depositors, creditors, and sureties on any bonds of any such institution or on the bonds of any officer or employee thereof, subject, however, to the following restrictions:1.A stockholder, shareholder, depositor, creditor, or surety of any institution desiring to inspect the information specified above of any institution shall make a written request for the inspection.2.A written request must:a.Specify the information to which access is requested; andb.Give the reasons for the request.3.Upon written request, the commissioner, or any person designated in writing by the commissioner, may disclose information specified in subsection 1 of section 6-01-07.1 only upon determining and to the extent that good cause exists for the disclosure.4.Either prior to or at the time of any disclosure, the commissioner or designee shall impose such terms and conditions as the commissioner deems necessary to protect the confidential nature of the information, the financial integrity of the financial institution to which the information relates, and the legitimate privacy interests of any individual named in the information.6-01-07.1. Records - Confidential.1.All facts and information obtained by the commissioner or the department in the following ways are confidential, except as provided in subsections 2 through 7:a.In the course of examining financial institutions, credit unions, and other licensed entities under the supervision of the commissioner, or in the course of receiving audit reports, reports of examining committee and reports of annual meetings of stockholders and directors of such institutions and licensees. The reports of examination may be made available to the financial institution's orPage No. 7licensee's board of directors, or the board's specifically authorized agents or representatives, but the reports remain the property of the department.b.From the federal reserve system, federal deposit insurance corporation, federal home loan bank board, national credit union administration, or any state bank or credit union supervisors or supervisors of other licensed entities of other states.c.In the course of investigating an institution under the supervision of, or licensed by, the commissioner, until such investigation is complete.d.In the course of a special investigation being carried out at the request of the governor or any court.e.In the form or nature of an application for a charter, license, or permission which meets any of the following criteria:(1)Trade secrets and commercial or financial information.(2)Personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.(3)Information contained in the application form which is in the nature of examination report information.Determination of what required application information falls within each category must be made by the body before which the application is brought.2.When the commissioner is required or permitted by law to report upon or take special action regarding the affairs of any institution or licensed entity under the commissioner's supervision, the commissioner shall divulge only such information specified in subsection 1 as is necessary and sufficient for the action taken or to be taken.3.The commissioner may furnish information to the attorney general, other state agencies, any prosecuting officials requiring the information for use in pursuit of official duties, and legislative investigations under chapter 54-03.2.Informationfurnished by the commissioner to any third party which is confidential in the commissioner's possession remains confidential in the possession of the third party. Information received by the commissioner from any third party which is confidential in the third party's possession remains confidential in the commissioner's possession.4.The commissioner may furnish information and enter into sharing agreements as to matters of mutual interest to an official or examiner of the federal reserve system, federal deposit insurance corporation, federal home loan bank board, national credit union administration, office of thrift supervision, comptroller of the currency, any other federal government agency, insurance commissioner, office of the securities commissioner, regulatory trade associations, or any state bank or credit union supervisors or supervisors of other licensed entities of other states.5.The commissioner shall not be required to disclose the name of any debtor of any financial institution, credit union, or licensed entity reporting to or under the supervision of the commissioner or anything relative to the private accounts, ownership, or transactions of any such institution, or any fact obtained in the course of any examination thereof, except as herein provided.Page No. 86.This section does not limit the right of access of stockholders, shareholders, depositors, creditors, and sureties on bonds to specified department records as, and to the extent, provided by section 6-01-07.7.The standards for confidentiality and disclosure by the commissioner set forth in this section, except the standard of the exercise of discretion, which shall only be exercised by the commissioner, apply equally to the state banking board, the state credit union board, and all department employees.6-01-08. Appointment of commissioner - Qualifications. The commissioner must beappointed by the governor and confirmed by the senate, and shall hold office for a term of four years and until a successor has been appointed, confirmed by the senate, and has qualified, unless the commissioner is removed sooner as herein provided. If the senate is not in session, the governor may make an interim appointment, and the interim appointee shall hold office until the senate confirms or rejects the appointment. The commissioner's term of office commences on the first day of July in each year next following a national presidential election.Thecommissioner must be a skilled accountant, and may not be an incumbent of any other public office in the state, or in any county, municipality, or public institution thereof, and may not own, hold, or control any stocks, capital, or bonds, or hold the office of trustee, assignee, officer, agent, or employee of any financial institution under the commissioner's jurisdiction, or of any corporation engaged in the business of guarantying or ensuring the fidelity or faithful performance of the duties or the solvency of public officers or of public depositaries.Thegovernor may remove from office any commissioner who violates or fails to discharge faithfully the duties of office or who becomes disqualified under the provisions of this section.6-01-09. Supervision and examination by commissioner of financial institutions.The commissioner shall exercise a constant supervision over the business affairs of all financial corporations and institutions, out-of-state branches of financial corporations and institutions, and branches of out-of-state state-chartered banks, savings and loan associations, or savings banks within the jurisdiction of the board. Either the commissioner or one or more examiners shall visit each of the state banking associations and other corporations, associations, and branches under the commissioner's jurisdiction at least once each thirty-six months to examine their affairs and ascertain their financial condition. The commissioner shall inspect and verify the assets and liabilities of the institution and branches to ascertain with reasonable certainty that the value of the assets and the amounts of the liabilities are correctly carried on its books. The commissioner shall examine the validity of mortgages held by savings institutions and shall see that all of the mortgages are properly recorded. The commissioner shall investigate the method of operation and conduct of the corporations and institutions and their systems of accounting to ascertain whether the methods conform to the law and sound banking usage and principles.Thecommissioner shall inquire into and report any infringement of the laws governing those corporations and institutions, and for that purpose the commissioner may examine the officers, agents, and employees of the corporations and institutions and all persons doing business therewith. The commissioner may examine, or cause to be examined, or review the books and records of any subsidiary corporation of a bank under the commissioner's supervision and may require the bank to provide information on the holding company that owns the bank.Thecommissioner shall report the condition of the corporations and institutions, together with the commissioner's recommendations or suggestions in connection therewith, to the state banking board, and the board may take such action as the exigencies may demand.6-01-10. Commissioner to keep records and make reports - Biennial report.1.The assistant commissioner shall act as secretary and keep all proper records and files pertaining to the duties and work of the office of the assistant commissioner and the proceedings of the board. The commissioner shall report to the board annually, touching on all the commissioner's official acts and those of the deputy examiners, giving abstracts of statistics and of the conditions of the various institutions to which the commissioner's duties relate, and making such recommendations and suggestions as the commissioner may determine proper.Page No. 92.The state banking board shall submit a biennial report to the governor and the secretary of state in accordance with section 54-06-04.In addition to anyrequirements established pursuant to section 54-06-04, the banking board's report must include a summary or abstract of the reports of the commissioner.3.The commissioner shall report to the state credit union board annually in the same manner as this section provides for the commissioner's report to the state banking board. The state credit union board shall submit a biennial report to the governor and the secretary of state in accordance with section 54-06-04, and in addition, the credit union board's report must include a summary or abstract of the reports of the commissioner.4.The biennial reports of the state banking board and the state credit union board shall be published in the form of a combined biennial report of the department of financial institutions. The biennial report of the department shall be submitted to the governor and the secretary of state in accordance with section 54-06-04. The biennial report of the department must include all other biennial reports which the commissioner or the boards are required by law to submit to the governor and the office of management and budget.6-01-11. Salary of commissioner. The salary of the commissioner must be within theamount appropriated for salaries by the legislative assembly. The commissioner is allowed, in addition to the commissioner's salary, the commissioner's necessary and actual expenses incurred in the discharge of the commissioner's official duties. The commissioner's salary and expenses must be audited and paid in the manner in which the salary and expenses of other state officers are paid.6-01-12.Bonds of commissioner and deputies.Repealed by S.L. 1999, ch. 113, </DIV></DIV></DIV> </DIV>  <DIV></DIV> <DIV></DIV> <DIV></DIV> <DIV></DIV>  <DIV id=footer> <DIV class=container> Copyright © 2012-2022 Laws9.Com All rights reserved.  <A href="/contactus.html">Contact Us</A> | <A href="/aboutus.html">About Us</A> | <A href="/terms.html">Terms</A> | <A href="/privacy.html">Privacy</A> </DIV> </DIV> </BODY></HTML>

Find Legal Information

North Dakota Codes and Statutes

6-01 Department of Financial Institutions