FINANCE CODE
CHAPTER 36. DISSOLUTION AND RECEIVERSHIP
SUBCHAPTER A. GENERAL PROVISIONS
§ 36.001. DEFINITION. In this chapter, "administrative
expense" means:
(1) an expense designated as an administrative expense
by Subchapter C or D;
(2) court costs and expenses of operation and
liquidation of a bank estate;
(3) wages owed to an employee of a bank for services
rendered within three months before the date the bank was closed for
liquidation and not exceeding:
(A) $2,000 to each employee; or
(B) another amount set by rules adopted under
this subtitle;
(4) current wages owed to a bank employee whose
services are retained by the receiver for services rendered after
the date the bank is closed for liquidation;
(5) an unpaid expense of supervision or
conservatorship of the bank before its closing for liquidation;
and
(6) any unpaid fees or assessments owed to the
department.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
§ 36.002. REMEDIES EXCLUSIVE. (a) Unless the banking
commissioner so requests, a court may not:
(1) order the closing or suspension of operation of a
state bank; or
(2) appoint for a state bank a receiver, supervisor,
conservator, liquidator, or other person with similar
responsibility.
(b) A person may not be designated a receiver, supervisor,
conservator, or liquidator without the voluntary approval of the
banking commissioner.
(c) This chapter prevails over any conflicting law of this
state.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
§ 36.003. FEDERAL DEPOSIT INSURANCE CORPORATION AS
LIQUIDATOR. (a) The banking commissioner without court action
may tender a state bank that has been closed for liquidation to the
Federal Deposit Insurance Corporation or its successor as receiver
and liquidating agent if the deposits of the bank were insured by
the Federal Deposit Insurance Corporation or its successor on the
date of closing.
(b) After acceptance of tender of the bank, the Federal
Deposit Insurance Corporation or its successor shall perform the
acts and duties as receiver of the bank that it considers necessary
or desirable and that are permitted or required by federal law or
this chapter.
(c) If the Federal Deposit Insurance Corporation or its
successor refuses to accept tender of the bank, the banking
commissioner shall act as receiver.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
§ 36.004. APPOINTMENT OF INDEPENDENT RECEIVER. (a) On
request of the banking commissioner, the court in which a
liquidation proceeding is pending may:
(1) appoint an independent receiver; and
(2) require a suitable bond of the independent
receiver.
(b) On appointment of an independent receiver, the banking
commissioner is discharged as receiver and remains a party to the
liquidation proceeding with standing to initiate or contest any
motion. The views of the banking commissioner are entitled to
deference unless they are inconsistent with the plain meaning of
this chapter.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
§ 36.005. SUCCESSION OF TRUST POWERS. (a) If a state
bank in the process of voluntary or involuntary dissolution and
liquidation is acting as trustee, guardian, executor,
administrator, or escrow agent, or in another fiduciary or
custodial capacity, the banking commissioner may authorize the sale
of the bank's administration of fiduciary accounts to a successor
entity with fiduciary powers.
(b) The successor entity, without the necessity of action by
a court or the creator or a beneficiary of the fiduciary
relationship, shall:
(1) continue the office, trust, or fiduciary
relationship; and
(2) perform all the duties and exercise all the powers
connected with or incidental to the fiduciary relationship as if
the successor entity had been originally designated as the
fiduciary.
(c) This section applies to all fiduciary relationships,
including a trust established for the benefit of a minor by court
order under Section 142.005, Property Code. This section does not
affect any right of a court or a party to the instrument governing
the fiduciary relationship to subsequently designate another
trustee as the successor fiduciary.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
SUBCHAPTER B. VOLUNTARY DISSOLUTION
§ 36.101. INITIATING VOLUNTARY DISSOLUTION. (a) A
state bank may initiate voluntary dissolution and surrender its
charter as provided by this subchapter:
(1) with the approval of the banking commissioner;
(2) after complying with the provisions of the Texas
Business Corporation Act regarding board and shareholder approval
for voluntary dissolution; and
(3) by filing the documents as provided by Section
36.102.
(b) The shareholders or participants of a state bank
initiating voluntary dissolution by resolution shall appoint one or
more persons to act as the liquidating agent or committee. The
liquidating agent or committee shall conduct the liquidation as
provided by law and under the supervision of the bank's board. The
board, in consultation with the banking commissioner, shall require
the liquidating agent or committee to give a suitable bond.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
§ 36.102. FILING RESOLUTIONS WITH BANKING
COMMISSIONER. After resolutions to dissolve and liquidate a state
bank have been adopted by the bank's board and shareholders or
participants, a majority of the directors, managers, or managing
participants shall verify and file with the banking commissioner
duplicate certified copies of:
(1) the resolutions of the shareholders or
participants that:
(A) are adopted at a meeting for which proper
notice was given or by unanimous written consent; and
(B) approve the dissolution and liquidation of
the bank;
(2) the resolutions of the board approving the
dissolution and liquidation of the bank if the bank is operated by a
board of directors or managers; and
(3) a copy of the notice to the shareholders or
participants informing them of the meeting.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
§ 36.103. BANKING COMMISSIONER INVESTIGATION AND
CONSENT. The banking commissioner shall review the documentation
submitted under Section 36.102 and conduct any necessary
investigation or examination. If the proceedings appear to have
been properly conducted and the bond to be given by the liquidating
agent or committee is adequate for its purposes, the banking
commissioner shall consent to dissolution and direct the bank to
publish notice of its pending dissolution.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
§ 36.104. NOTICE OF PENDING DISSOLUTION. (a) A state
bank initiating voluntary dissolution shall publish notice of its
pending dissolution in a newspaper of general circulation in each
community where its home office or a branch is located:
(1) at least once each week for eight consecutive
weeks; or
(2) at other times specified by the banking
commissioner or rules adopted under this subtitle.
(b) The notice must:
(1) be in the form and include the information
required by the banking commissioner; and
(2) state that:
(A) the bank is liquidating;
(B) depositors and creditors must present their
claims for payment on or before a specified date; and
(C) all safe deposit box holders and bailors of
property left with the bank should remove their property on or
before a specified date.
(c) The dates selected by the bank under Subsection (b)
must:
(1) be approved by the banking commissioner; and
(2) allow:
(A) the affairs of the bank to be wound up as
quickly as feasible; and
(B) creditors, depositors, and owners of
property adequate time for presentation of claims, withdrawal of
accounts, and redemption of property.
(d) The banking commissioner may adjust the dates under
Subsection (b) with or without republication of notice if
additional time appears needed for the activities to which the
dates pertain.
(e) At the time of or promptly after publication of the
notice, the bank shall mail to each of the bank's known depositors,
creditors, safe deposit box holders, and bailors of property left
with the bank, at the mailing address shown on the bank's records,
an individual notice containing:
(1) the information required in a notice under
Subsection (b); and
(2) specific information pertinent to the account or
property of the addressee.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
§ 36.105. SAFE DEPOSITS AND OTHER BAILMENTS. (a) A
contract between the bank and a person for bailment, of deposit for
hire, or for lease of a safe, vault, or box ceases on the date
specified in the notice as the date for removal of property or a
later date approved by the banking commissioner. A person who has
paid rental or storage charges for a period extending beyond the
date designated for removal of property has an unsecured claim
against the bank for a refund of the unearned amount paid.
(b) If the property is not removed by the date the contract
ceases, an officer of the bank shall inventory the property. In
making the inventory the officer may open a safe, vault, or box, or
any package, parcel, or receptacle, in the custody or possession of
the bank. The inventory must be made in the presence of a notary
public who is not an officer or employee of the bank and who is
bonded in an amount and by sureties approved by the banking
commissioner. The property shall be marked to identify, to the
extent possible, its owner or the person who left it with the bank.
After all property belonging to others that is in the bank's custody
and control has been inventoried, a master list certified by the
bank officer and the notary public shall be furnished to the banking
commissioner. The master list shall be kept in a place and dealt
with in a manner the banking commissioner specifies pending
delivery of the property to its owner or to the comptroller as
unclaimed property.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
§ 36.106. OFFICES TO REMAIN OPEN. Unless the banking
commissioner directs or consents otherwise, the home office and all
branch offices of a state bank initiating voluntary dissolution
shall remain open for business during normal business hours until
the last date specified in published notices for presentation of
claims, withdrawal of accounts, and redemption of property.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
§ 36.107. FIDUCIARY ACTIVITIES. (a) As soon after
publication of the notice of dissolution as is practicable, the
bank shall:
(1) terminate all fiduciary positions it holds;
(2) surrender all property held by it as a fiduciary;
and
(3) settle its fiduciary accounts.
(b) Unless all fiduciary accounts are settled and
transferred by the last date specified in published notices or by
the banking commissioner and unless the banking commissioner
directs otherwise, the bank shall mail a notice to each trustor and
beneficiary of any remaining trust, escrow arrangement, or other
fiduciary relationship. The notice must state:
(1) the location of an office open during normal
business hours where administration of the remaining fiduciary
accounts will continue until settled or transferred; and
(2) a telephone number at that office.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
§ 36.108. FINAL LIQUIDATION. (a) After the bank has
taken all of the actions specified by Sections 36.102, 36.105, and
36.107, paid all its debts and obligations, and transferred all
property for which a legal claimant has been found after the time
for presentation of claims has expired, the bank shall make a list
from its books of the names of each depositor, creditor, owner of
personal property in the bank's possession or custody, or lessee of
any safe, vault, or box, who has not claimed or has not received a
deposit, debt, dividend, interest, balance, or other amount or
property due to the person. The list must be sworn to or affirmed by
a majority of the bank's board or managing participants.
(b) The bank shall:
(1) file the list and any necessary identifying
information with the banking commissioner;
(2) pay any unclaimed money and deliver any unclaimed
property to the comptroller as provided by Chapter 74, Property
Code; and
(3) certify to the banking commissioner that the
unclaimed money has been paid and unclaimed property has been
delivered to the comptroller.
(c) After the banking commissioner has reviewed the list and
has reconciled the unclaimed cash and property with the amounts of
money and property reported and transferred to the comptroller, the
banking commissioner shall allow the bank to distribute the bank's
remaining assets, if any, among its shareholders, participants, or
participant-transferees as their ownership interests appear.
(d) After distribution of all remaining assets under
Subsection (c), the bank shall file with the department:
(1) an affidavit and schedules, sworn to or affirmed
by a majority of the bank's board or managing participants, showing
the distribution to each shareholder, participant, or
participant-transferee;
(2) all copies of reports of examination of the bank in
its possession; and
(3) its original charter or an affidavit stating that
the original charter is lost.
(e) After verifying the submitted information and
documents, the banking commissioner shall issue a certificate
canceling the charter of the bank.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
§ 36.109. APPLICATION OF LAW TO BANK IN DISSOLUTION. A
state bank in the process of voluntary dissolution and liquidation
remains subject to this subtitle and Chapters 11 and 12, including
provisions for examination by the banking commissioner, and the
bank shall furnish reports required by the banking commissioner.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
§ 36.110. AUTHORIZATION OF DEVIATION FROM
PROCEDURES. The banking commissioner may authorize a deviation
from the procedures for voluntary dissolution in this subchapter if
the banking commissioner determines that the interests of claimants
are not jeopardized by the deviation.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
§ 36.111. CLOSURE BY BANKING COMMISSIONER FOR
INVOLUNTARY DISSOLUTION AND LIQUIDATION. The banking commissioner
may close a state bank for involuntary dissolution and liquidation
under this chapter if the banking commissioner determines that:
(1) the voluntary liquidation is:
(A) being conducted in an improper or illegal
manner; or
(B) not in the best interests of the bank's
depositors and creditors; or
(2) the bank is insolvent or imminently insolvent.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
§ 36.112. APPLICATION FOR NEW CHARTER. After a state
bank's charter has been voluntarily surrendered and canceled, the
bank may not resume business or reopen except on application for and
approval of a new charter.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
SUBCHAPTER C. INVOLUNTARY DISSOLUTION AND LIQUIDATION
§ 36.201. ACTION TO CLOSE STATE BANK. (a) The banking
commissioner may close and liquidate a state bank on finding that:
(1) the interests of the bank's depositors and
creditors are jeopardized by the bank's insolvency or imminent
insolvency; and
(2) the best interests of depositors and creditors
would be served by requiring that the bank be closed and its assets
liquidated.
(b) A majority of the bank's directors, managers, or
managing participants may voluntarily close the bank and place it
with the banking commissioner for liquidation.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
§ 36.202. NOTICE AND EFFECT OF CLOSURE; APPOINTMENT OF
RECEIVER. (a) After closing a state bank under Section 36.201,
the banking commissioner shall place a sign at its main entrance
stating that the bank has been closed and the findings on which the
closing of the bank is based. A correspondent bank of the closed
bank may not pay an item drawn on the account of the closed bank that
is presented for payment after the correspondent has received
actual notice of closing unless it previously certified the item
for payment.
(b) As soon as practicable after posting the sign at the
bank's main entrance, the banking commissioner shall tender the
bank to the Federal Deposit Insurance Corporation as provided by
Section 36.003 or initiate a receivership proceeding by filing a
copy of the notice contained on the sign in a district court in the
county where the bank's home office is located. The court in which
the notice is filed shall docket it as a case styled, "In re
liquidation of ____" (inserting the name of the bank). When this
notice is filed, the court has constructive custody of all the
bank's assets and any action that seeks to directly or indirectly
affect bank assets is considered an intervention in the
receivership proceeding and is subject to this subchapter and
Subchapter D.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
§ 36.203. NATURE AND DURATION OF
RECEIVERSHIP. (a) The court may not require a bond from the
banking commissioner as receiver.
(b) A reference in this chapter to the receiver is a
reference to the banking commissioner as receiver and to any
successor in office, the Federal Deposit Insurance Corporation if
acting as receiver as provided by Section 36.003 and federal law, or
an independent receiver appointed at the request of the banking
commissioner as provided by Section 36.004.
(c) The receiver has all the powers of the directors,
managers, managing participants, officers, and shareholders or
participants of the bank as necessary to support an action taken on
behalf of the bank.
(d) The receiver and all employees and agents acting on
behalf of the receiver are acting in an official capacity and are
protected by Section 12.106. An act of the receiver is an act of the
bank in liquidation. This state or a political subdivision of this
state is not liable and may not be held accountable for any debt or
obligation of a state bank in receivership.
(e) Section 64.072, Civil Practice and Remedies Code,
applies to the receivership of a bank except as provided by this
subsection. A bank receivership shall be administered continuously
for the length of time necessary to complete its purposes, and a
period prescribed by other law limiting the time for the
administration of a receivership or of corporate affairs generally,
including Section 64.072(d), Civil Practice and Remedies Code, does
not apply.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
§ 36.204. CONTEST OF LIQUIDATION. (a) A state bank,
acting through a majority of its directors, managers, or managing
participants, may intervene in an action filed by the banking
commissioner closing a state bank to challenge the banking
commissioner's closing of the bank and to enjoin the banking
commissioner or other receiver from liquidating its assets. The
bank must file the intervention not later than the second business
day after the closing of the bank, excluding legal holidays. The
court may issue an ex parte order restraining the receiver from
liquidating bank assets pending a hearing on the injunction. The
receiver shall comply with the restraining order but may petition
the court for permission to liquidate an asset as necessary to
prevent its loss or diminution pending the outcome of the
injunction.
(b) The court shall hear an action as quickly as possible
and shall give it priority over other business.
(c) The bank or receiver may appeal the court's judgment as
in other civil cases, except that the receiver shall retain all bank
assets pending a final appellate court order even if the banking
commissioner does not prevail in the trial court. If the banking
commissioner prevails in the trial court, liquidation of the bank
may proceed unless the trial court or appellate court orders
otherwise. If liquidation is enjoined or stayed pending appeal,
the trial court retains jurisdiction to permit liquidation of an
asset as necessary to prevent its loss or diminution pending the
outcome of the appeal.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
§ 36.205. NOTICE OF BANK CLOSING. (a) As soon as
reasonably practicable after initiation of the receivership
proceeding, the receiver shall publish notice in a newspaper of
general circulation in each community where the bank's home office
or a branch is located. The notice must state that:
(1) the bank has been closed for liquidation;
(2) depositors and creditors must present their claims
for payment on or before a specified date; and
(3) all safe deposit box holders and bailors of
property left with the bank should remove their property not later
than a specified date.
(b) A date that the receiver selects under Subsection (a):
(1) may not be earlier than the 121st day after the
date of the notice; and
(2) must allow:
(A) the affairs of the bank to be wound up as
quickly as feasible; and
(B) creditors, depositors, and owners of
property adequate time for presentation of claims, withdrawal of
accounts, and redemption of property.
(c) The receiver may adjust the dates under Subsection (a)
with the approval of the court and with or without republication of
notice if additional time appears needed for those activities.
(d) As soon as reasonably practicable given the state of
bank records and the adequacy of staffing, the receiver shall mail
to each of the bank's known depositors, creditors, safe deposit box
holders, and bailors of property left with the bank, at the mailing
address shown on the bank's records, an individual notice
containing the information required in a notice under Subsection
(a) and specific information pertinent to the account or property
of the addressee.
(e) The receiver may determine the form and content of
notices under this section.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
§ 36.206. INVENTORY. As soon as reasonably practicable
given the state of bank records and the adequacy of staffing, the
receiver shall prepare a comprehensive inventory of the bank's
assets for filing with the court. The inventory is open to
inspection.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
§ 36.207. RECEIVER'S TITLE AND PRIORITY. (a) The
receiver has the title to all the bank's property, contracts, and
rights of action, wherever located, beginning on the date the bank
is closed for liquidation.
(b) The rights of the receiver have priority over a
contractual lien or statutory landlord's lien under Chapter 54,
Property Code, judgment lien, attachment lien, or voluntary lien
that arises after the date of the closing of the bank for
liquidation.
(c) The filing or recording of a receivership order in a
record office of this state gives the same notice that would be
given by a deed, bill of sale, or other evidence of title filed or
recorded by the bank in liquidation. The recording clerk shall
index a recorded receivership order in the records to which the
order relates.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
§ 36.208. RIGHTS FIXED. The rights and liabilities of
the bank in liquidation and of a depositor, creditor, officer,
director, manager, managing participant, employee, shareholder,
participant, participant-transferee, agent, or other person
interested in the bank's estate are fixed on the date of closing of
the bank for liquidation except as otherwise directed by the court
or as expressly provided otherwise by this subchapter or Subchapter
D.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
§ 36.209. DEPOSITORIES. (a) The receiver may deposit
money collected on behalf of the bank estate in:
(1) the Texas Treasury Safekeeping Trust Company in
accordance with procedures established by the comptroller; or
(2) one or more state banks in this state, the deposits
of which are insured by the Federal Deposit Insurance Corporation
or its successor, if the receiver, using sound financial judgment,
determines that it would be advantageous to do so.
(b) If receivership money deposited in an account at a state
bank exceeds the maximum insured amount, the receiver shall require
the excess deposit to be adequately secured through a pledge of
securities or otherwise, without approval of the court. The
depository bank may secure the deposits of the bank in liquidation
on behalf of the receiver, notwithstanding any other provision of
Chapter 11 or 12 or this subtitle.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
§ 36.210. PENDING LAWSUIT. (a) A judgment or order of
a court of this state or of another jurisdiction in an action
pending by or against the bank, rendered after the date the bank was
closed for liquidation, is not binding on the receiver unless the
receiver was made a party to the suit.
(b) Before the first anniversary of the date the bank was
closed for liquidation, the receiver may not be required to plead to
any suit pending against the bank in a court in this state on the
date the bank was closed for liquidation and in which the receiver
is a proper plaintiff or defendant.
(c) Sections 64.052, 64.053, and 64.056, Civil Practice and
Remedies Code, do not apply to a bank estate being administered
under this subchapter and Subchapter D.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
§ 36.211. NEW LAWSUIT. (a) Except as otherwise
provided by this section, the court in which the receivership
proceeding is pending under this subchapter has exclusive
jurisdiction to hear and determine all actions or proceedings
instituted by or against the bank or receiver after the
receivership proceeding begins.
(b) The receiver may file in any jurisdiction an ancillary
suit that may be helpful to obtain jurisdiction or venue over a
person or property.
(c) Exclusive venue lies in Travis County for an action or
proceeding instituted against the receiver or the receiver's
employee, including an employee of the department, that asserts
personal liability on the part of the receiver or employee.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
§ 36.212. REQUIRING RECORD OR OTHER PROPERTY IN
POSSESSION OF OTHER PERSON. (a) Each bank affiliate, officer,
director, manager, managing participant, shareholder, participant,
participant-transferee, trustee, agent, servant, employee,
attorney, attorney-in-fact, or correspondent shall immediately
deliver to the receiver, without cost to the receiver, any record or
other property of the bank or that relates to the business of the
bank.
(b) If by contract or otherwise a record or other property
that can be copied is the property of a person listed in Subsection
(a), it shall be copied and the copy shall be delivered to the
receiver. The owner shall retain the original until notification
by the receiver that it is no longer required in the administration
of the bank's estate or until another time the court, after notice
and hearing, directs. A copy is considered to be a record of the
bank in liquidation under Section 36.225.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
§ 36.213. INJUNCTION IN AID OF LIQUIDATION. (a) On
application by the receiver, the court with or without notice may
issue an injunction:
(1) restraining a bank officer, director, manager,
managing participant, shareholder, participant,
participant-transferee, trustee, agent, servant, employee,
attorney, attorney-in-fact, correspondent, or other person from
transacting the bank's business or wasting or disposing of its
property; or
(2) requiring the delivery of the bank's property or
assets to the receiver subject to the further order of the court.
(b) At any time during a proceeding under this subchapter,
the court may issue another injunction or order considered
necessary or desirable to prevent:
(1) interference with the receiver or the proceeding;
(2) waste of the assets of the bank;
(3) the beginning or prosecution of an action;
(4) the obtaining of a preference, judgment,
attachment, garnishment, or other lien; or
(5) the making of a levy against the bank or its
assets.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
§ 36.214. SUBPOENA. (a) The receiver may request the
court ex parte to issue a subpoena to compel the attendance and
testimony of a witness before the receiver and the production of a
record relating to the receivership estate. For this purpose the
receiver or the receiver's designated representative may
administer an oath or affirmation, examine a witness, or receive
evidence. The court has statewide subpoena power and may compel
attendance and production of a record before the receiver at the
bank, the office of the receiver, or another location.
(b) A person served with a subpoena under this section may
file a motion with the court for a protective order as provided by
Rule 166b, Texas Rules of Civil Procedure. In a case of
disobedience of a subpoena or the contumacy of a witness appearing
before the receiver or the receiver's designated representative,
the receiver may request and the court may issue an order requiring
the person subpoenaed to obey the subpoena, give evidence, or
produce a record relating to the matter in question.
(c) A witness who is required to appear before the receiver
is entitled to receive:
(1) reimbursement for mileage, in the amount for
travel by a state employee, for traveling to or returning from a
proceeding that is more than 25 miles from the witness's residence;
and
(2) a fee for each day or part of a day the witness is
necessarily present as a witness in an amount set by the receiver
with the approval of the court of not less than $10 a day and not
more than an amount equal to the per diem travel allowance of a
state employee.
(d) A payment of fees under Subsection (c) is an
administrative expense.
(e) The receiver may serve the subpoena or have it served by
the receiver's authorized agent, a sheriff, or a constable. The
sheriff's or constable's fee for serving a subpoena must be the same
as the fee paid the sheriff or constable for similar services.
(f) A subpoena issued under this section to a financial
institution is not subject to Section 59.006.
(g) On certification by the receiver under official seal, a
record produced or testimony taken as provided by this section and
held by the receiver is admissible in evidence in any case without
proof of its correctness or other proof, except the certificate of
the receiver that the record or testimony was received from the
person producing the record or testifying. The certified record or
a certified copy of the record is prima facie evidence of the facts
it contains. This section does not limit another provision of this
subchapter, Subchapter D, or another law that provides for the
admission of evidence or its evidentiary value.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997. Amended
by Acts 2001, 77th Leg., ch. 1420, § 6.103(c), eff. Sept. 1,
2001.
§ 36.215. EXECUTORY CONTRACT; ORAL
AGREEMENT. (a) Not later than six months after the date the
receivership proceeding begins, the receiver may terminate any
executory contract to which the bank is a party or any obligation of
the bank as a lessee. A lessor who receives notice of the
receiver's election to terminate the lease before the 60th day
before the termination date is not entitled to rent or damages for
termination, other than rent accrued to the date of termination.
(b) An agreement that tends to diminish or defeat the
interest of the estate in a bank asset is not valid against the
receiver unless the agreement:
(1) is in writing;
(2) was executed by the bank and any person claiming an
adverse interest under the agreement, including the obligor, when
the bank acquired the asset;
(3) was approved by the board of the bank or its loan
committee, and the approval is reflected in the minutes of the board
or committee; and
(4) has been continuously since its execution an
official record of the bank.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
§ 36.216. PREFERENCES. (a) A transfer of or lien on
the property or assets of a state bank is voidable by the receiver
if the transfer or lien:
(1) was made or created less than:
(A) four months before the date the bank is
closed for liquidation; or
(B) one year before the date the bank is closed
for liquidation if the receiving creditor was at the time an
affiliate, officer, director, manager, managing participant,
principal shareholder, or participant of the bank or an affiliate
of the bank;
(2) was made or created with the intent of giving to a
creditor or depositor, or enabling a creditor or depositor to
obtain, a greater percentage of the claimant's debt than is given or
obtained by another claimant of the same class; and
(3) is accepted by a creditor or depositor having
reasonable cause to believe that a preference will occur.
(b) Each bank officer, director, manager, managing
participant, shareholder, participant, participant-transferee,
trustee, agent, servant, employee, attorney-in-fact, or
correspondent, or other person acting on behalf of the bank, who has
participated in implementing a voidable transfer or lien, and each
person receiving property or the benefit of property of the bank as
a result of the voidable transfer or lien, are personally liable for
the property or benefit received and shall account to the receiver
for the benefit of the depositors and creditors of the bank.
(c) The receiver may avoid a transfer of or lien on the
property or assets of a bank that a depositor, creditor,
shareholder, participant, or participant-transferee of the bank
could have avoided and may recover the property transferred or its
value from the person to whom it was transferred or from a person
who has received it unless the transferee or recipient was a bona
fide holder for value before the date the bank was closed for
liquidation.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
§ 36.217. EMPLOYEES OF RECEIVER. The receiver may
employ agents, legal counsel, accountants, appraisers,
consultants, and other personnel the receiver considers necessary
to assist in the performance of the receiver's duties. The receiver
may use personnel of the department if the receiver considers the
use to be advantageous or desirable. The expense of employing those
persons is an administrative expense.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
§ 36.218. DISPOSAL OF PROPERTY; SETTLING OF
CLAIM. (a) In liquidating a bank, the receiver on order of the
court entered with or without hearing may:
(1) sell all or part of the property of the bank;
(2) borrow money and pledge all or part of the assets
of the bank to secure the debt created, except that the receiver may
not be held personally liable to repay borrowed money;
(3) compromise or compound a doubtful or uncollectible
debt or claim owed by or owing to the bank; and
(4) enter another agreement on behalf of the bank that
the receiver considers necessary or proper to the management,
conservation, or liquidation of its assets.
(b) If the amount of a debt or claim owed by or owing to the
bank or the value of an item of property of the bank does not exceed
$20,000, excluding interest, the receiver may compromise or
compound the debt or claim or sell the property on terms the
receiver considers to be in the best interests of the bank estate
without obtaining the approval of the court.
(c) The receiver may with the approval of the court sell or
offer or agree to sell an asset of the bank, other than a fiduciary
asset, to a depositor or creditor of the bank. Payment may be in
whole or part out of distributions payable to the purchasing
depositor or creditor on account of an approved claim against the
bank's estate. On application by the receiver, the court may
designate one or more representatives to act for certain depositors
or creditors as a class in the purchase, holding, and management of
assets purchased by the class under this section, and the receiver
may with the approval of the court advance the expenses of the
appointed representative against the security of the claims of the
class.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
§ 36.219. COURT ORDER; NOTICE AND HEARING. If the
court requires notice and hearing before entering an order, the
court shall set the time and place of the hearing and prescribe
whether the notice is to be given by service on specific parties, by
publication, or by a combination of those methods. The court may
not enter an order requested by a person other than the receiver
without notice to the receiver and an opportunity for the receiver
to be heard.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
§ 36.220. RECEIVER'S REPORT; EXPENSES. (a) The
receiver shall file with the court:
(1) a quarterly report showing the operation,
receipts, expenditures, and general condition of the bank in
liquidation; and
(2) a final report regarding the liquidated bank
showing all receipts and expenditures and giving a full explanation
and a statement of the disposition of all assets of the bank.
(b) The receiver shall pay all administrative expenses out
of money or other assets of the bank. Each quarter the receiver
shall swear to and submit an itemized report of those expenses. The
court shall approve the report unless an objection is filed before
the 11th day after the date it is submitted. An objection may be
made only by a party in interest and must specify each item objected
to and the ground for the objection. The court shall set the
objection for hearing and notify the parties of this action. The
objecting party has the burden of proof to show that the item
objected to is improper, unnecessary, or excessive.
(c) The court may prescribe whether the notice of the
receiver's report is to be given by service on specific parties, by
publication, or by a combination of those methods.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
§ 36.221. COURT-ORDERED AUDIT. The court may order an
audit of the books and records of the receiver that relate to the
receivership. A report of an audit ordered under this section shall
be filed with the court. The receiver shall make the books and
records relating to the receivership available to the auditor as
required by the court order. The receiver shall pay the expenses of
an audit ordered under this section as an administrative expense.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
§ 36.222. SAFE DEPOSITS AND OTHER BAILMENTS. (a) A
contract between the bank and another person for bailment, of
deposit for hire, or for lease of a safe, vault, or box ceases on the
date specified for removal of property in the notices that were
published and mailed or a later date approved by the receiver or the
court. A person who has paid rental or storage charges for a period
extending beyond the date designated for removal of property has a
claim against the bank estate for a refund of the unearned amount
paid.
(b) If the property is not removed by the date the contract
ceases, the receiver shall inventory the property. In making the
inventory the receiver may open a safe, vault, or box, or any
package, parcel, or receptacle, in the custody or possession of the
receiver. The property shall be marked to identify, to the extent
possible, its owner or the person who left it with the bank. After
all property belonging to others that is in the receiver's custody
and control has been inventoried, the receiver shall compile a
master list that is divided for each office of the bank that
received property that remains unclaimed. The receiver shall
publish, in a newspaper of general circulation in each community in
which the bank had an office that received property that remains
unclaimed, the list and the names of the owners of the property as
shown in the bank's records. The published notice must specify a
procedure for claiming the property unless the court, on
application of the receiver, approves an alternate procedure.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
§ 36.223. FIDUCIARY ACTIVITIES. (a) As soon after
beginning the receivership proceeding as is practicable, the
receiver shall:
(1) terminate all fiduciary positions the bank holds;
(2) surrender all property held by the bank as a
fiduciary; and
(3) settle the bank's fiduciary accounts.
(b) The receiver shall release all segregated and
identifiable fiduciary property held by the bank to successor
fiduciaries.
(c) With the approval of the court, the receiver may sell
the administration of all or substantially all remaining fiduciary
accounts to one or more successor fiduciaries on terms that appear
to be in the best interests of the bank's estate and the persons
interested in the fiduciary accounts.
(d) If commingled fiduciary money held by the bank as
trustee is insufficient to satisfy all fiduciary claims to the
commingled money, the receiver shall distribute commingled money
pro rata to all fiduciary claimants of commingled money based on
their proportionate interests after payment of administrative
expenses related solely to the fiduciary claims. The fictional
tracing rule does not apply. To the extent of any unsatisfied
fiduciary claim to commingled money, a claimant to commingled trust
money is entitled to the same priority as a depositor of the bank.
(e) Subject to Subsection (d), if the bank has lost
fiduciary money or property through misappropriation or otherwise,
a claimant to the missing fiduciary money or property is entitled to
the same priority as a depositor of the bank.
(f) The receiver may require a fiduciary claimant to file a
proof of claim if the records of the bank are insufficient to
identify the claimant's interest.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
§ 36.224. DISPOSITION AND MAINTENANCE OF
RECORDS. (a) On approval by the court, the receiver may dispose
of records of the bank in liquidation that are obsolete and
unnecessary to the continued administration of the receivership
proceeding.
(b) The receiver may devise a method for the effective,
efficient, and economical maintenance of the records of the bank
and of the receiver's office. The method may include maintaining
those records on any medium approved by the records management
division of the Texas State Library.
(c) To maintain the records of the liquidated bank after the
closing of the receivership proceeding, the receiver may reserve
assets of an estate, deposit them in an account, and use them for
maintenance, storage, and disposal of records in closed
receivership estates.
(d) Records of a liquidated bank are not government records
for any purpose, including Chapter 552, Government Code, but shall
be preserved and disposed of as if they were records of the
department under Chapter 441, Government Code. Those records are
confidential as provided by:
(1) Subchapter D, Chapter 31;
(2) Section 59.006; and
(3) rules adopted under this subtitle
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997. Amended
by Acts 2001, 77th Leg., ch. 1420, § 6.103(d), eff. Sept. 1,
2001.
§ 36.225. RECORDS ADMITTED. (a) A record of a bank in
liquidation obtained by the receiver and held in the course of the
receivership proceeding or a certified copy of the record under the
official seal of the receiver is admissible in evidence in all cases
without proof of correctness or other proof, except the certificate
of the receiver that the record was received from the custody of the
bank or found among its effects.
(b) The receiver may certify the correctness of a record of
the receiver's office, including a record described by Subsection
(a), and may certify any fact contained in the record. The record
shall be received in evidence in all cases in which the original
would be evidence.
(c) The original record or a certified copy of the record is
prima facie evidence of the facts it contains.
(d) A copy of an original record or another record that is
maintained on a medium approved by the records management division
of the Texas State Library, within the scope of this section, and
produced by the receiver or the receiver's authorized
representative under this section:
(1) has the same effect as the original record; and
(2) may be used the same as the original record in a
judicial or administrative proceeding in this state.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
§ 36.226. RESUMPTION OF BUSINESS. (a) A state bank
closed under Section 36.201 may not be reopened without the
approval of the banking commissioner unless a contest of
liquidation under Section 36.204 is finally resolved adversely to
the banking commissioner and the court authorizes the bank's
reopening.
(b) The banking commissioner may place temporary limits on
the right of withdrawals by or payments to individual depositors
and creditors of a bank reopened under this section. The limits:
(1) must apply equally to all unsecured depositors and
creditors;
(2) may not defer a withdrawal by or payment to a
secured depositor or creditor without the person's written consent;
and
(3) may not postpone the right of full withdrawal or
payment of unsecured depositors or creditors for more than 18
months after the date that the bank reopens.
(c) As a depositor or creditor of a reopened bank, this
state or a political subdivision of this state may agree to
temporary limits that the banking commissioner places on payments
or withdrawals.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
§ 36.227. ASSETS DISCOVERED AFTER CLOSE OF
RECEIVERSHIP. (a) The banking commissioner shall report to the
court discovery of an asset having value that:
(1) the banking commissioner discovers after the
receivership was closed by final order of the court; and
(2) was abandoned as worthless or unknown during the
receivership.
(b) The court may reopen the receivership proceeding for
continued liquidation if the value of the asset justifies the
reopening.
(c) If the banking commissioner suspects that the
information may have been intentionally or fraudulently concealed,
the banking commissioner shall notify appropriate civil and
criminal authorities to determine any applicable penalties.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
SUBCHAPTER D. CLAIMS AGAINST RECEIVERSHIP ESTATE
§ 36.301. FILING CLAIM. (a) This section applies only
to a claim by a person, other than a shareholder, participant, or
participant-transferee acting in that capacity, who has a claim
against a state bank in liquidation, including a claimant with a
secured claim and a claimant under a fiduciary relationship who has
been ordered by the receiver to file a proof of claim under Section
36.223.
(b) To receive payment of a claim, the person must present
proof of the claim to the receiver:
(1) at a place specified by the receiver; and
(2) within the period specified by the receiver under
Section 36.205.
(c) A claim that is not filed within the period specified by
the receiver may not participate in a distribution of the assets by
the receiver, except that, subject to court approval, the receiver
may accept a claim filed not later than the 180th day after the date
notice of the claimant's right to file a proof of claim is mailed to
the claimant.
(d) A claim accepted and approved under Subsection (c) is
subordinate to an approved claim of a general creditor.
(e) Interest does not accrue on a claim after the date the
bank is closed for liquidation.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
§ 36.302. PROOF OF CLAIM. (a) A proof of claim must be
in writing, be signed by the claimant, and include:
(1) a statement of the claim;
(2) a description of the consideration for the claim;
(3) a statement of whether collateral is held or a
security interest is asserted against the claim and, if so, a
description of the collateral or security interest;
(4) a statement of any right of priority of payment for
the claim or other specific right asserted by the claimant;
(5) a statement of whether a payment has been made on
the claim and, if so, the amount and source of the payment, to the
extent known by the claimant;
(6) a statement that the amount claimed is justly owed
by the bank in liquidation to the claimant; and
(7) any other matter that is required by the court.
(b) The receiver may designate the form of the proof of
claim. A proof of claim must be filed under oath unless the oath is
waived by the receiver. A proof of claim filed with the receiver is
considered filed in an official proceeding for purposes of Chapter
37, Penal Code.
(c) If a claim is founded on a written instrument, the
original instrument, unless lost or destroyed, must be filed with
the proof of claim. After the instrument is filed, the receiver may
permit the claimant to substitute a copy of the instrument until the
final disposition of the claim. If the instrument is lost or
destroyed, a statement of that fact and of the circumstances of the
loss or destruction must be filed under oath with the claim.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
§ 36.303. JUDGMENT AS PROOF OF CLAIM. (a) A judgment
entered against a state bank in liquidation before the date the bank
was closed for liquidation may not be given higher priority than a
claim of an unsecured creditor unless the judgment creditor in a
proof of claim proves the allegations supporting the judgment to
the receiver's satisfaction.
(b) A judgment against the bank taken by default or by
collusion before the date the bank was closed for liquidation may
not be considered as conclusive evidence of the liability of the
bank to the judgment creditor or of the amount of damages to which
the judgment creditor is entitled.
(c) A judgment against the bank entered after the date the
bank was closed for liquidation may not be considered as evidence of
liability or of the amount of damages.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
§ 36.304. SECURED CLAIM. (a) The owner of a secured
claim against a bank in liquidation may:
(1) surrender the security and file a claim as a
general creditor; or
(2) apply the security to the claim and discharge the
claim.
(b) If the owner applies the security and discharges the
claim, any deficiency shall be treated as a claim against the
general assets of the bank on the same basis as a claim of an
unsecured creditor. The amount of the deficiency shall be
determined as provided by Section 36.305, except that if the amount
of the deficiency has been adjudicated by a court in a proceeding in
which the receiver has had notice and an opportunity to be heard,
the court's decision is conclusive as to the amount.
(c) The value of security held by a secured creditor shall
be determined under supervision of the court by:
(1) converting the security into money according to
the terms of the agreement under which the security was delivered to
the creditor; or
(2) agreement, arbitration, compromise, or litigation
between the creditor and the receiver.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
§ 36.305. UNLIQUIDATED OR UNDETERMINED CLAIM. (a) A
claim based on an unliquidated or undetermined demand shall be
filed within the period provided by Subchapter C for the filing of
a claim. The claim may not share in any distribution to claimants
until the claim is definitely liquidated, determined, and allowed.
After the claim is liquidated, determined, and allowed, the claim
shares ratably with the claims of the same class in all subsequent
distributions.
(b) For purposes of this section, a demand is considered
unliquidated or undetermined if the right of action on the demand
accrued while the bank was closed for liquidation and the liability
on the demand has not been determined or the amount of the demand
has not been liquidated.
(c) If the receiver in all other respects is in a position to
close the receivership proceeding, the proposed closing is
sufficient grounds for the rejection of any remaining claim based
on an unliquidated or undetermined demand. The receiver shall
notify the claimant of the intention to close the proceeding. If
the demand is not liquidated or determined before the 61st day after
the date of the notice, the receiver may reject the claim.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
§ 36.306. SET-OFF. (a) Mutual credits and mutual
debts shall be set off and only the balance allowed or paid, except
that a set-off may not be allowed in favor of a person if:
(1) the obligation of the bank to the person on the
date the bank was closed for liquidation did not entitle the person
to share as a claimant in the assets of the bank;
(2) the obligation of the bank to the person was
purchased by or transferred to the person after the date the bank
was closed for liquidation or for the purpose of increasing set-off
rights; or
(3) the obligation of the person or the bank is as a
trustee or fiduciary.
(b) On request, the receiver shall provide a person with an
accounting statement identifying each debt that is due and payable.
A person who owes the bank an amount that is due and payable against
which the person asserts a set-off of mutual credits that may become
due and payable from the bank in the future shall promptly pay to
the receiver the amount due and payable. The receiver shall
promptly refund, to the extent of the person's prior payment,
mutual credits that become due and payable to the person by the bank
in liquidation.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
§ 36.307. ACTION ON CLAIM. (a) Not later than six
months after the last day permitted for the filing of claims or a
later date allowed by the court, the receiver shall accept or reject
in whole or in part each filed claim against the bank in
liquidation, except for an unliquidated or undetermined claim
governed by Section 36.305. The receiver shall reject a claim if
the receiver doubts its validity.
(b) The receiver shall mail written notice to each claimant
specifying the disposition of the person's claim. If a claim is
rejected in whole or in part, the receiver in the notice shall
specify the basis for rejection and advise the claimant of the
procedures and deadline for appeal.
(c) The receiver shall send each claimant a summary schedule
of approved and rejected claims by priority class and notify the
claimant:
(1) that a copy of a schedule of claims disposition
including only the name of the claimant, the amount of the claim
allowed, and the amount of the claim rejected is available on
request; and
(2) of the procedure and deadline for filing an
objection to an approved claim.
(d) The receiver or an agent or employee of the receiver,
including an employee of the department, is not liable, and a cause
of action may not be brought against the person, for an action taken
or not taken by the person relating to the adjustment, negotiation,
or settlement of a claim.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
§ 36.308. OBJECTION TO APPROVED CLAIM. The receiver
with court approval shall set a date for objection to an approved
claim. On or before that date a depositor, creditor, other
claimant, shareholder, participant, or participant-transferee of
the bank may file an objection to an approved claim. The objection
shall be heard and determined by the court. If the objection is
sustained, the court shall direct an appropriate modification of
the schedule of claims.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
§ 36.309. APPEAL OF REJECTED CLAIM. (a) The
receiver's rejection of a claim may be appealed in the court in
which the receivership proceeding is pending. The appeal must be
brought within three months after the date of service of notice of
the rejection.
(b) If the action is timely brought, review is de novo as if
originally filed in the court and subject to the rules of procedure
and appeal applicable to civil cases. This action is separate from
the receivership proceeding and is not initiated by a claimant's
attempt to appeal the action of the receiver by intervening in the
receivership proceeding.
(c) If the action is not timely brought, the action of the
receiver is final and not subject to review.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
§ 36.310. PAYMENT OF CLAIM. (a) Except as expressly
provided otherwise by this subchapter or Subchapter C, without the
approval of the court the receiver may not make a payment on a
claim, other than a claim for an obligation incurred by the receiver
for administrative expenses.
(b) The receiver may periodically make partial distribution
to the holders of approved claims if:
(1) all objections have been heard and decided as
provided by Section 36.308;
(2) the time for filing appeals has expired as
provided by Section 36.309; and
(3) a proper reserve is established for the pro rata
payment of:
(A) rejected claims that have been appealed; and
(B) any claims based on unliquidated or
undetermined demands governed by Section 36.305.
(c) As soon as practicable after the determination of all
objections, appeals, and claims based on previously unliquidated or
undetermined demands governed by Section 36.305, the receiver shall
distribute the assets of the bank in satisfaction of approved
claims other than claims asserted in a person's capacity as a
shareholder, participant, or participant-transferee.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
§ 36.311. PRIORITY OF CLAIMS AGAINST INSURED BANK. The
distribution of assets from the estate of a bank the deposits of
which are insured by the Federal Deposit Insurance Corporation or
its successor shall be made in the same order of priority as assets
would be distributed on liquidation or purchase of assets and
assumption of liabilities of a national bank under federal law.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
§ 36.312. PRIORITY OF CLAIMS AGAINST UNINSURED
BANK. (a) The priority of distribution of assets from the estate
of a bank the deposits of which are not insured by the Federal
Deposit Insurance Corporation or its successor shall be in
accordance with the order of each class as provided by this section.
Every claim in each class shall be paid in full, or adequate money
shall be retained for that payment, before a member of the next
class receives any payment. A subclass may not be established
within a class, except for a preference or subordination within a
class expressly created by contract or other instrument or in the
articles of association.
(b) Assets shall be distributed in the following order of
priority:
(1) administrative expenses;
(2) approved claims of secured creditors to the extent
of the value of the security as provided by Section 36.304;
(3) approved claims of beneficiaries of insufficient
commingled fiduciary money or missing fiduciary property and
approved claims of depositors of the bank;
(4) other approved claims of general creditors not
falling within a higher priority under this section, including
unsecured claims for taxes and debts due the federal government or a
state or local government;
(5) approved claims of a type described by
Subdivisions (1)-(4) that were not filed within the period
prescribed by this subchapter; and
(6) claims of capital note or debenture holders or
holders of similar obligations and proprietary claims of
shareholders, participants, participant-transferees, or other
owners according to the terms established by issue, class, or
series.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
§ 36.313. EXCESS ASSETS. (a) If bank assets remain
after the receiver has provided for unclaimed distributions and all
of the liabilities of the bank in liquidation, the receiver shall
distribute the remaining assets to the shareholders or participants
of the bank.
(b) If the remaining assets are not liquid or if they
otherwise require continuing administration, the receiver may call
a meeting of the shareholders or participants and
participant-transferees of the bank. The receiver shall give
notice of the meeting:
(1) in a newspaper of general circulation in the
county where the home office of the bank was located; and
(2) by written notice to the shareholders or
participants and participant-transferees of record at their last
known addresses.
(c) At the meeting, the shareholders or participants shall
appoint one or more agents to take over the affairs to continue the
liquidation for the benefit of the shareholders or participants and
participant-transferees. Voting privileges are governed by the
bank's bylaws and articles of association. If a quorum cannot be
obtained at the meeting, the banking commissioner shall appoint an
agent. An agent appointed under this subsection shall execute and
file with the court a bond approved by the court, conditioned on the
faithful performance of all the duties of the trust.
(d) Under order of the court the receiver shall transfer and
deliver to the agent or agents for continued liquidation under the
court's supervision all assets of the bank remaining in the
receiver's hands. The court shall discharge the receiver from
further liability to the bank and its depositors, creditors,
shareholders, participants, and participant-transferees.
(e) The bank may not resume business and the charter of the
bank is void on the date the court issues the order directing the
receiver to transfer and deliver the remaining assets of the bank to
the agent or agents.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
§ 36.314. UNCLAIMED PROPERTY. After completion of the
liquidation, any unclaimed property remaining in the hands of the
receiver shall be tendered to the comptroller as provided by
Chapter 74, Property Code.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
