FINANCE CODE
CHAPTER 66. ENFORCEMENT AND REGULATION
SUBCHAPTER A. GENERAL PROVISIONS
§ 66.001. GENERAL DUTIES. The Savings and Loan
Department and the commissioner shall regulate associations and
subsidiaries of associations operating under this subtitle.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
§ 66.002. ADOPTION OF RULES. The finance commission may
adopt rules relating to:
(1) the minimum amounts of capital stock and paid-in
surplus required for incorporation as a capital stock association;
(2) the minimum amounts of savings liability and
expense funds required for incorporation as a mutual association;
(3) the fees and procedures for processing, hearing,
and deciding applications filed with the commissioner or the
Savings and Loan Department under this subtitle;
(4) the books and records that an association is
required to keep and the location at which the books and records are
required to be maintained;
(5) the accounting principles and practices that an
association is required to observe;
(6) the conditions under which records may be copied
or reproduced for permanent storage before the original records are
destroyed;
(7) the form, contents, and time of publication of
statements of condition;
(8) the form and contents of annual reports and other
reports that an association is required to prepare and publish or
file;
(9) the manner in which assets, liabilities, and
transactions in general are to be described when entered in the
books of an association, so that the entry accurately describes the
subject matter of the entry; and
(10) the conditions under which the commissioner may
require an asset to be charged off or reserves established by
transfer from surplus or paid-in capital because of the
depreciation of or overstated value of the asset.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997. Amended
by Acts 2001, 77th Leg., ch. 867, § 31, eff. Sept. 1, 2001.
SUBCHAPTER B. EXAMINATIONS
§ 66.051. EXAMINATIONS. (a) The commissioner shall
periodically examine the affairs of each association, including the
subsidiaries and transactions of the association and the dealings
of any savings and loan holding company that are related to the
savings and loan subsidiaries of the association.
(b) An examination must include an audit if an independent
audit is not available or is unsatisfactory to the commissioner.
(c) On completion of an audit, the auditor shall sign and
certify the audit report. A copy shall be filed promptly with the
commissioner.
(d) An examination under this section may be made in
conjunction with an examination by the Federal Home Loan Bank
Board, a Federal Home Loan Bank, or the Federal Deposit Insurance
Corporation. The commissioner shall accept an audit made by or
accepted by one of those agencies in an examination of an
association.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
§ 66.052. ADDITIONAL EXAMINATIONS. (a) The
commissioner at the association's cost shall conduct an additional
examination or audit or devote extraordinary attention to an
association's affairs if the commissioner determines that the
condition of the association makes it necessary or expedient to do
so.
(b) A copy of the report of an examination or audit
conducted under this section shall be furnished promptly to the
association. The report shall be:
(1) presented to the board of the association at its
next regular meeting or at a special meeting called for purposes of
permitting the presentation of the report; and
(2) noted in the minutes of the meeting.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
§ 66.053. ACCESS TO BOOKS AND RECORDS. The
commissioner, a deputy commissioner, or an examiner or auditor of
the commissioner shall be given free access to:
(1) the books and records of an association;
(2) the books and records of a subsidiary or savings
and loan holding company of an association relating to the
association's business; and
(3) the books and records kept by an officer, agent, or
employee of the association, subsidiary, or savings and loan
holding company relating to the association's business.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
§ 66.054. SUBPOENA; ADMINISTRATION OF OATH OR
AFFIRMATION. (a) In an examination conducted under this
subchapter, the commissioner, the deputy commissioner, or an
examiner or auditor of the commissioner may:
(1) subpoena witnesses;
(2) administer an oath or affirmation to a person,
including a director, officer, agent, or employee of an
association; or
(3) require and compel by subpoena the production of
documents, including records, books, papers, and contracts.
(b) The commissioner may apply to a district court in Travis
County for an order requiring a person to obey a subpoena or to
appear or answer questions in connection with an examination.
(c) The court shall issue an order under Subsection (b) if
the court finds good cause to issue the subpoena or to take
testimony.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
SUBCHAPTER C. SUPERVISORY INTERVENTION
§ 66.101. INTERVENTION FOR VIOLATIONS AND UNSAFE AND
UNSOUND PRACTICES. The commissioner may intervene in the affairs
of an association if the association or a person who participates in
the affairs of the association or a subsidiary of the association:
(1) engages in or is about to engage in an unsafe and
unsound practice in conducting the affairs of the association; or
(2) violates or is about to violate:
(A) the articles of incorporation or bylaws of
the association;
(B) a law or supervisory order applicable to the
association; or
(C) a condition that the commissioner or the
finance commission has imposed on the association by written order
or agreement.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
§ 66.102. INTERVENTION FOR FILING INAPPROPRIATE
INFORMATION. The commissioner may intervene in the affairs of an
association if the association or a person who participates in the
affairs of the association or a subsidiary of the association files
materially false or misleading information in a filing required by
Subchapter L, Chapter 62.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
§ 66.103. INTERVENTION FOR ACTIVITY RESULTING IN ACTUAL
OR POTENTIAL LOSS. (a) The commissioner may intervene in the
affairs of an association if a person who participates in the
affairs of the association or a subsidiary or savings and loan
holding company of the association commits or is about to commit:
(1) a fraudulent or criminal act in conducting the
affairs that may cause the association or a subsidiary of the
association to become or be in danger of becoming insolvent;
(2) an act that threatens immediate or irreparable
harm to the public or the association, a subsidiary of the
association, or the account holders or creditors of the
association; or
(3) a breach of fiduciary duty that results in actual
or probable substantial financial losses or other damages to the
association or a subsidiary of the association or that would
seriously prejudice the interest of savings account holders or
holders of other security issued by the association.
(b) The commissioner may intervene in the affairs of an
association if the association:
(1) is insolvent;
(2) is in imminent danger of insolvency; or
(3) makes or is about to make:
(A) a loan the value of the security for which is
materially overstated; or
(B) an investment the market value of which is
materially overstated.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
§ 66.104. INTERVENTION RELATING TO EXAMINATION OF
AFFAIRS. (a) The commissioner may intervene in the affairs of an
association if a person who participates in the affairs of the
association or a subsidiary or savings and loan holding company of
the association:
(1) refuses or is about to refuse to submit to
interrogation under oath by the commissioner or the commissioner's
agent with respect to the association's affairs; or
(2) materially alters, conceals, removes, or
falsifies or is about to materially alter, conceal, remove, or
falsify a book or record of the association or a subsidiary of the
association.
(b) The commissioner may intervene in the affairs of an
association if the association:
(1) fails to maintain books and records from which the
true financial condition of the association or the state of the
association's affairs can be determined; or
(2) refuses to direct a person having possession of
the books, papers, records, or accounts of the association or the
association's subsidiary to permit the commissioner or the
commissioner's authorized representative to inspect or examine
those documents or accounts.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
§ 66.105. TEMPORARY SUPERVISORY ORDER. (a) If the
commissioner has reasonable cause to believe that one or more of the
grounds for intervention under Section 66.101 exists or is
imminent, the commissioner may issue without notice and hearing one
or more of the following types of temporary supervisory orders to
correct and eliminate the grounds for supervisory action:
(1) an order to cease and desist from continuing a
particular action, an order to take affirmative action, or both;
(2) an order suspending or prohibiting a person who
participates in the affairs of the association from further
participating in the affairs of the association or of another
association;
(3) an order requiring divestiture of control of an
association obtained under Subchapter L, Chapter 62; or
(4) an order placing the affairs of the association
under the control of a conservator designated in the order, who may
take possession and control of the books, records, property,
assets, liabilities, and business of the association and manage the
association under the direction of the commissioner.
(b) An order under this section:
(1) must contain a reasonably detailed statement of
the facts on which the order is based; and
(2) takes effect when issued.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
§ 66.106. SERVICE OF TEMPORARY SUPERVISORY
ORDER. (a) A temporary supervisory order may be served by
personal delivery by an agent of the commissioner or by certified or
registered mail.
(b) Service is complete when an officer or director of the
association receives the order.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
§ 66.107. HEARING ON TEMPORARY SUPERVISORY ORDER; FINAL
ORDER. (a) A temporary supervisory order issued under Section
66.105 becomes final and unappealable on the 16th day after the date
on which the order is issued unless before that day the association
or a person affected by the order requests a hearing before the
commissioner to determine whether the order should be vacated, made
permanent, or modified.
(b) The commissioner shall set the matter for hearing to be
held not earlier than the 11th day or later than the 30th day after
the date of the request. The hearing must be held at the offices of
the Savings and Loan Department in Austin.
(c) After the hearing, the commissioner may enter a final
order that vacates the temporary order or makes the temporary order
permanent in its original form or a modified form that is consistent
with the facts found by the commissioner.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
§ 66.108. PLAN OF OPERATION OF ASSOCIATION AFTER ORDER
OF TEMPORARY CONSERVATORSHIP. (a) Before or during a hearing
under Section 66.107 on a temporary supervisory order placing an
association under the control of a conservator, the board of the
association may present to the commissioner a plan to continue the
operation of the association in a manner that will correct or
eliminate the grounds on which the order is based.
(b) If the commissioner approves the plan or a modification
of the plan, the commissioner shall vacate the order placing the
association under conservatorship, conditioned on the
implementation and diligent prosecution of the plan.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
§ 66.109. ENFORCEMENT OF SUPERVISORY ORDER. (a) The
commissioner, after giving notice, may assess against an
association or another person designated in a final supervisory
order who violates the order, or both, an administrative penalty of
not more than $1,000 each for each day of the violation. The
association may not reimburse or indemnify a person for any part of
the penalty.
(b) In addition to any other remedy provided by law, the
commissioner may institute in a district court in Travis County:
(1) a suit for injunctive relief to stop or prevent a
violation of a supervisory order; or
(2) a suit for injunctive relief and to collect the
administrative penalty.
(c) A bond is not required of the commissioner with respect
to injunctive relief granted under this section.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
§ 66.110. STAY OF SUPERVISORY ORDER. (a) A temporary
supervisory order may not be stayed pending a hearing unless the
commissioner orders a stay.
(b) A final supervisory order may not be stayed pending
judicial review unless the reviewing court orders a stay for good
cause.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
§ 66.111. DISCLOSURE OF INFORMATION IN SUPERVISORY
ORDER; CONFIDENTIALITY. (a) Except as provided by Subsection
(b) or (c), information contained in a temporary or final
supervisory order or a notice, correspondence, or other record
relating to the order is confidential.
(b) The commissioner, for good reason as determined by the
commissioner, may disclose the information described by Subsection
(a) in a hearing or judicial proceeding under Section 66.107,
66.109, or 66.110 or in a proceeding to assert a defense under
Section 66.403.
(c) The commissioner may disclose the information described
by Subsection (a) to a department, agency, or instrumentality of
this or another state or the United States if the commissioner
determines that disclosure is necessary or proper to enforce the
laws of this or another state or the United States.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
SUBCHAPTER D. CONSERVATORSHIP
§ 66.151. PLACEMENT OF ASSOCIATION UNDER
CONSERVATORSHIP. If the commissioner does not approve a plan to
continue the operation of an association under Section 66.108, the
conservator shall continue to manage the affairs of the association
unless the temporary conservatorship order is modified or vacated:
(1) by order of the commissioner; or
(2) as a result of judicial review.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
§ 66.152. DUTIES OF CONSERVATOR. (a) The conservator
and any deputy or assistant conservator appointed by the
commissioner, under the direction and supervision of the
commissioner, shall:
(1) take possession and control of the books, records,
property, assets, liabilities, and business of the association;
and
(2) conduct the business and affairs of the
association.
(b) The conservator shall:
(1) undertake to remove the causes and conditions that
made the conservatorship necessary; and
(2) during the conservatorship, report to the
commissioner as required by the commissioner.
(c) The conservator shall take measures necessary to
preserve, protect, and recover the assets or property of the
association, including a claim or cause of action that belongs to or
may be asserted by the association. The conservator may deal with
that property in the capacity of conservator.
(d) The conservator may file, prosecute, or defend a suit
brought by or against the association if the conservator considers
it necessary to protect the interested party or property affected
by the suit.
(e) A suit filed by the conservator under Subsection (c)
must be brought in Travis County.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
§ 66.153. TERM OF CONSERVATOR. The conservator shall
serve until the purposes of the conservatorship are accomplished.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
§ 66.154. TRANSFER OF MANAGEMENT OF REHABILITATED
ASSOCIATION. If the association is rehabilitated, the conservator
shall return the management of the association to the association's
board under terms that are reasonable and necessary to prevent a
recurrence of the conditions that created the need for the
conservatorship.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
§ 66.155. SCOPE OF AUTHORITY OF OTHER PERSONS DURING
CONSERVATORSHIP. During the conservatorship, a person who
participates in the affairs of the association shall act according
to the conservator's instructions and may exercise only the
authority that the conservator expressly grants.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
§ 66.156. COST OF CONSERVATORSHIP. (a) The
commissioner shall determine the cost of the conservatorship.
(b) The cost of conservatorship shall be paid from the
association's assets.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
§ 66.157. VENUE. A suit filed against an association or
its conservator while a conservatorship order is in effect must be
brought in Travis County.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
SUBCHAPTER E. VOLUNTARY SUPERVISORY CONTROL
§ 66.201. PLACEMENT OF ASSOCIATION UNDER VOLUNTARY
SUPERVISORY CONTROL. (a) An association's board may consent to
the commissioner's placement of the association under supervisory
control.
(b) The commissioner may appoint the supervisor and one or
more deputy supervisors.
(c) Supervisory control continues until the conditions for
which the supervisory control was imposed are corrected.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
§ 66.202. POWERS OF SUPERVISORS. A supervisor or deputy
supervisor has the powers of a conservator under Subchapter D and
any other power established by agreement between the commissioner
and the association's board of directors.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
§ 66.203. COST OF SUPERVISORY CONTROL. The cost of the
supervisory control of an association shall be set by the
commissioner and paid by the association.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
SUBCHAPTER F. CLOSING
§ 66.251. CLOSING OF ASSOCIATION BY BOARD
RESOLUTION. An association's board, by resolution and with the
commissioner's consent, may close the association and tender to the
commissioner for disposition as provided by this subchapter the
assets and all the affairs of the association.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
§ 66.252. CLOSING OF ASSOCIATION BY COMMISSIONER'S
ORDER. The commissioner or the commissioner's representative may
close an association if the commissioner determines after an
examination that:
(1) the interests of the depositors and creditors of
the association are jeopardized because of:
(A) the association's insolvency or imminent
insolvency; or
(B) a substantial dissipation of the
association's assets or earnings because of a violation of a law or
an unsafe or unsound practice; and
(2) it is in the best interest of the depositors and
creditors to close the association and liquidate the association's
assets.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
§ 66.253. NOTICE OF CLOSING. (a) Immediately after an
association is closed by its board or by the commissioner under this
subchapter, the commissioner shall post at the main entrance of the
association an appropriate notice of the closure. After notice is
posted, a judgment lien, attachment lien, or other voluntary lien
may not attach to an asset of the association, and a director or an
officer or agent of the association may not:
(1) act for the association; or
(2) convey, transfer, assign, pledge, mortgage, or
encumber an asset of the association.
(b) An attempt to take an action prohibited under Subsection
(a)(2) after the notice is posted or in anticipation of posting the
notice, including preferring in any manner a depositor or creditor
of the association, is void.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
§ 66.254. EFFECT OF CLOSING. (a) On closing an
association under this subchapter, the commissioner may:
(1) liquidate the association as provided by
Subchapter E; or
(2) tender the association's assets and all the
association's affairs to the Federal Deposit Insurance Corporation
and appoint the Federal Deposit Insurance Corporation as receiver
or liquidating agent to act in accordance with this chapter or
federal law.
(b) The Federal Deposit Insurance Corporation on accepting
the tender and appointment prescribed by Subsection (a)(2) may:
(1) act without bond or other security as to the
appointment; and
(2) without court supervision, exercise any right,
power, or privilege provided by the laws of this state to a receiver
or liquidating agent, as applicable, and any applicable right,
power, or privilege available under federal law.
(c) On acceptance of the appointment prescribed by
Subsection (a)(2), possession of and title to all the assets,
business, and property of the association pass to the Federal
Deposit Insurance Corporation without the execution of any
instrument transferring title or right of use.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
§ 66.255. HEARING ON COMMISSIONER'S ORDER. (a) Not
later than the second day, excluding legal holidays, after the date
on which the commissioner closes an association under Section
66.252, the association, by resolution of its board, may sue in a
district court of Travis County to enjoin the commissioner from
taking further action under this subchapter.
(b) The court, without notice or hearing, may restrain the
commissioner from taking further action until after a hearing on
the suit is held. If the court restrains the commissioner, the
court shall instruct the commissioner to hold the assets and
affairs of the association in the commissioner's possession until
disposition of the suit. On receipt of this instruction, the
commissioner shall refrain from taking further action, other than a
necessary or proper action approved by the court to prevent loss or
depreciation in the value of the assets.
(c) The court as soon as possible shall hear the suit and
shall enter a judgment enjoining or refusing to enjoin the
commissioner from proceeding under this subchapter.
(d) The commissioner, regardless of the judgment entered by
the court or any supersedeas bond filed, shall retain possession of
the association's assets until final disposition of any appeal of
the judgment.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
SUBCHAPTER G. LIQUIDATION
§ 66.301. LIQUIDATION OF ASSOCIATION. (a) If the
commissioner doubts that an association subject to a
conservatorship order can be rehabilitated, the commissioner may
set a hearing to determine whether the association should be
liquidated. Not later than the 10th day before the hearing date,
notice of the hearing shall be given by certified mail to the
officers and directors of the association and by publication in a
newspaper of general circulation in the county in which the
principal office of the association is located.
(b) If the commissioner finds that the association cannot be
rehabilitated and it is in the public interest and the best interest
of the savings account holders and creditors of the association
that the bank be closed and its assets liquidated, the commissioner
by liquidation order may appoint a liquidating agent and dissolve
the association.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
§ 66.302. REMOVAL OR REPLACEMENT OF LIQUIDATING
AGENT. (a) The commissioner, with or without cause, may remove a
liquidating agent and appoint another agent.
(b) If a liquidating agent resigns, dies, or otherwise
becomes unable to serve, the commissioner shall promptly appoint
another agent.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
§ 66.303. DUTIES OF LIQUIDATING AGENT. (a) Under the
commissioner's supervision, the liquidating agent shall:
(1) receive and take possession of the books, records,
assets, and property of the association;
(2) sell, enforce collection of, and liquidate the
assets and property of the association;
(3) sue in the name of the liquidating agent or the
association;
(4) defend an action brought against the liquidating
agent or the association;
(5) receive, examine, and pass on a claim brought
against the association, including a claim of a depositor;
(6) make distributions to and pay creditors,
depositors, shareholders, and members of the association as their
interests appear;
(7) from time to time make a ratable liquidation
dividend on claims that have been proved to the satisfaction of the
association's board of directors or the liquidating agent or that
have been adjusted by a court;
(8) after the association's assets have been
liquidated, make further liquidation dividends on claims
previously proved or adjusted; and
(9) execute documents and perform any other action
that the liquidating agent considers necessary or desirable to the
liquidation.
(b) For purposes of making a further liquidation dividend
under Subsections (a)(7) and (8), the liquidating agent may accept
the statement of an amount due a claimant as shown on the
association's books and records instead of a formal proof of claim
filed on the claimant's behalf.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
§ 66.304. NOTICE. (a) Under the commissioner's
supervision, the liquidating agent shall give notice to creditors
and savings account holders directing them to present and prove
their claims and requiring them to file a written proof of claim at
the address designated in the notice.
(b) The notice shall be published once a week for three
successive weeks in a newspaper of general circulation in each
county in which the association maintained an office or branch to
transact business on the date the association ceased unrestricted
operations.
(c) Not later than the 30th day after the date on which the
notice is first published, the liquidating agent shall mail a
similar notice to each depositor and creditor named in the books of
the association at the address shown in those books.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
§ 66.305. PRESENTATION OF CLAIM. (a) To be entitled to
priority, each person asserting a claim against an association
being liquidated under this subchapter must present the claim in
writing to the commissioner or the liquidating agent at the address
designated in the notice under Section 66.304 before the last day of
the 18th month after the date the notice is first published.
(b) The claim must:
(1) contain a statement of the facts on which the claim
is based;
(2) set out any right of payment priority or other
specific right asserted by the claimant; and
(3) be signed and sworn to by the claimant.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
§ 66.306. PRIORITY OF CLAIMS. On liquidation of an
association, claims for payment have the following priority:
(1) obligations incurred by the commissioner or the
liquidating agent, fees and assessments due the Savings and Loan
Department, and expenses of liquidation, all of which may be
covered by the proper reserve of money;
(2) approved claims of creditors, to the extent that
the claims are secured by, or constitute a lien on, the assets or
property of the association;
(3) approved claims of depositors against the general
liquidating account of the association;
(4) approved claims of general creditors and the
unsecured portion of a creditor obligation described by Subdivision
(2);
(5) otherwise approved claims that were not filed
within the time prescribed by Section 66.305;
(6) approved claims of subordinated creditors; and
(7) claims of shareholders of the association.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
§ 66.307. ACTION ON CLAIM. (a) Within three months
after the date of receipt of a claim against an association being
liquidated, the liquidating agent shall approve or reject the claim
in whole or in part, unless that period is extended by written
agreement with the claimant.
(b) A liquidating agent who approves the claim or a part of
the claim shall classify the claim and enter the claim and the
action taken in a claim register.
(c) A liquidating agent who rejects the claim in whole or in
part, or who denies a right of payment priority or any other right
asserted by the claimant, shall notify the claimant of the action by
registered mail.
(d) An approved claim presented after the declaration and
payment of any dividend and on or before the last day of the 18th
month after the date on which notice is first published under
Section 66.304 qualifies to participate in dividends previously
paid before an additional dividend is declared. A claim that was
not presented during that period does not qualify to participate in
a dividend or distribution of assets until all approved claims
filed during that period are fully paid.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
§ 66.308. HEARING ON CLAIM; APPEAL OF ADVERSE
DETERMINATION OF CLAIM. (a) A claimant may appeal an adverse
determination of a claim by filing suit on the claim in a district
court of Travis County within three months after the date on which
notice is mailed under Section 66.307.
(b) The determination on a claim becomes final and is not
subject to review if suit is not filed in accordance with Subsection
(a).
(c) Review by a district court under Subsection (a) is by
trial de novo.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
§ 66.309. PAYMENT OF FINAL DIVIDEND. (a) The
liquidating agent may not pay a final dividend before the first day
of the 19th month after the date notice is first published under
Section 66.304.
(b) The liquidating agent shall declare and pay a final
dividend after:
(1) the period provided by Subsection (a) expires;
and
(2) the liquidating agent liquidates each asset of the
association capable of being liquidated or receives sufficient
money from the liquidation to:
(A) pay the costs of the liquidation;
(B) pay all claims that have been presented and
established; and
(C) leave money available to pay all nonclaiming
depositors and creditors of the association.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
§ 66.310. DEPOSIT OF MONEY BY LIQUIDATING AGENT. The
liquidating agent shall deposit all unclaimed dividends and all
money available for nonclaiming depositors and creditors in one or
more state-chartered financial institutions for the benefit of the
depositors and creditors entitled to the dividends or money.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
§ 66.311. PAYMENT OF NONCLAIMING DEPOSITORS AND
CREDITORS. (a) Except as provided by Subsection (b), the
liquidating agent, on demand, shall pay a depositor or creditor of
the association who does not make a claim under Section 66.305 any
amount held by the liquidating agent for the benefit of the
depositor or creditor.
(b) If the liquidating agent has a doubt about the identity
of a claimant or the claimant's right to the money, the liquidating
agent shall reject the claim and notify the claimant by registered
mail.
(c) The liquidating agent's rejection of a claim becomes
final if the claimant does not file suit against the liquidating
agent to recover the money in a district court of Travis County
within three months after the date on which the notice is mailed.
(d) A suit under Subsection (c) is an action in rem.
Judgment is binding on all persons interested in the money.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
§ 66.312. COST OF LIQUIDATION. (a) The commissioner
shall determine the cost of the liquidation.
(b) The cost of liquidation shall be paid from the
association's assets as the commissioner directs.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
§ 66.313. FINAL REPORT. After paying a final dividend
as provided by Section 66.309 and performing any necessary or
proper action in liquidating the association's assets for the
benefit of the depositors and creditors of the association, the
liquidating agent shall file with the commissioner a final report
of the liquidation.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
§ 66.314. CONTINUED EXISTENCE OF ASSOCIATION FOLLOWING
LIQUIDATION. For the purposes of adjusting and settling claims not
disposed of during the liquidation, the association continues to
exist until the third anniversary of the date the liquidation order
is issued.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
§ 66.315. SPECIAL LIQUIDATING AGENT. At the completion
of the liquidation, the commissioner may appoint a special
liquidating agent if necessary to adjust and settle undisposed
claims.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
§ 66.316. CLOSING OF LIQUIDATION; ORDER AND
LIABILITY. (a) The liquidating agent shall certify the
completion of the liquidation to the commissioner, who shall then
issue an order closing the liquidation.
(b) After the commissioner issues the order, the
commissioner and the liquidating agent are discharged from any
further duty or liability in connection with the administration of
the association's affairs.
(c) After the closing order, a person does not have a claim,
suit, or action against the commissioner or the liquidating agent,
individually or in an official capacity, except a suit to recover an
unclaimed deposit as provided by this subchapter.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
§ 66.317. ADMINISTRATIVE PROCEDURE. The procedures for
a contested case hearing under Chapter 2001, Government Code, apply
to a hearing set by the commissioner under this subchapter.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
SUBCHAPTER H. RECEIVERSHIP OF UNINSURED ASSOCIATIONS
§ 66.351. PLACEMENT OF CERTAIN ASSOCIATIONS IN
RECEIVERSHIP. (a) After a final liquidation order has been
issued under Subchapter F or G for an association the deposits of
which are not insured by the Federal Deposit Insurance Corporation
or another state or federal agency, the commissioner or liquidating
agent may apply to a district court of Travis County to appoint a
receiver for the association.
(b) The court shall appoint a receiver if the court finds
substantial evidence that:
(1) the commissioner has met all applicable
requirements of Subchapter F or G for issuing the liquidation
order;
(2) service of the liquidation order has been
completed as provided by Section 66.106; and
(3) the order is a final unappealable order under
Subchapter F or G.
(c) The court shall appoint the liquidating agent appointed
during the liquidation of the association to serve as transitional
receiver during the first 60 days of the receivership. The court
may appoint a different receiver for the remainder of the
receivership.
(d) After the court appoints a receiver, liquidation of the
association under the supervision of the commissioner ends and the
receiver shall liquidate the association under the supervision of
the court.
(e) A receiver is governed by:
(1) Subchapter F, to the extent that subchapter is not
inconsistent with this section;
(2) Subchapter G, other than Sections 66.302 and
66.316, and to the extent that subchapter is not inconsistent with
this section; and
(3) state law applicable to receiverships generally to
the extent the law is not inconsistent with this chapter.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
§ 66.352. DUTIES OF RECEIVER. On appointment, the
receiver shall:
(1) immediately take charge of the affairs of the
association, subject to the direction of the court; and
(2) conduct the business of the association or act as
necessary to conserve the assets and protect the rights of the
depositors or creditors and shareholders and members of the
association.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
§ 66.353. COMPENSATION OF RECEIVER. The receiver is
entitled to compensation as determined by the court.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
§ 66.354. EFFECT OF RECEIVERSHIP ON COMMISSIONER AND
LIQUIDATING AGENT. (a) On appointment of the receiver, the
commissioner and liquidating agent are discharged from further duty
in connection with the administration or regulation of the affairs
of the association and are not liable, individually or in an
official capacity, for an action or a failure to act while the
association was in liquidation under this chapter.
(b) The appointment or the action of a receiver under this
subchapter does not invalidate an authorized action taken by the
liquidating agent under Subchapter G. The prior action of the
liquidating agent is considered valid as if the action had been
approved by the court in the receivership proceedings.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
§ 66.355. RECEIPT OF ITEMS AS EVIDENCE IN RECEIVERSHIP
PROCEEDING; CERTIFICATION. (a) A book, record, document, or
paper of the association received and held by the receiver during
the receivership proceeding or a certified copy of one of those
items, under the hand and official seal of the receiver, is
admissible as evidence in a case brought by or against the receiver
without additional evidence of authenticity except for a
certificate of the receiver stating that the item was received from
the custody of the association or found among the association's
effects.
(b) In a case brought by or against the receiver, the
receiver may:
(1) certify the correctness of a paper, document, or
record of the receiver's office, including an item described by
Subsection (a); and
(2) certify under seal of the receiver to a fact
contained in the paper, document, or record in evidence in a case in
which the original would be evidence.
(c) When admitted into evidence, the original or a certified
copy or part of an item described by Subsection (b) becomes prima
facie evidence of the facts disclosed in the item.
(d) This section applies to a case brought by or against the
liquidating agent before the appointment of a receiver as if the
case had been brought by or against the receiver.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
§ 66.356. TITLE AND CUSTODY OF ASSOCIATION'S
ASSETS. (a) The property and assets of the association are in the
custody of the court from the date the receivership begins.
(b) The receiver and a receiver's successor in office have
title to all property, contracts, and rights of action of the
association, wherever located, beginning on the date the order
directing the receiver to take possession is entered. The title of
the receiver relates back to the date the liquidation of the
association begins unless the court provides otherwise.
(c) The filing or recording of the order in a record office
of the state has the same effect for notice purposes as a filed or
recorded deed, bill of sale, or other evidence of title.
(d) If the court considers it desirable to protect the
assets of the association, the court may require a bond from the
receiver, in an amount set by the court, to be paid from the
association's assets.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
SUBCHAPTER I. MISCELLANEOUS PROVISIONS
§ 66.401. DERIVATIVE SUIT. (a) The commissioner may
bring a derivative suit on behalf of an association on an unpursued
cause of action if:
(1) the commissioner determines that the suit should
be brought to protect the public interest or the interest of the
association or the shareholders, members, or creditors of the
association; and
(2) the association has not brought suit on the action
before the 31st day after the date on which the commissioner gives
notice to the association that suit should be brought.
(b) Except as provided by another statute that provides for
mandatory venue, venue is in a district court of Travis County.
(c) The commissioner may employ legal counsel to bring and
prosecute a derivative suit. The commissioner may:
(1) pay the counsel from funds appropriated for the
operation of the Savings and Loan Department; or
(2) require the association for which the suit is
brought to pay the counsel directly or to reimburse the Savings and
Loan Department for the payment.
(d) The association shall be paid an amount equal to the
amount of the proceeds of a judgment on a suit brought under this
section less unreimbursed costs and expenses, including attorney's
fees, incurred by the Savings and Loan Department in prosecuting
the suit.
(e) In this section, "unpursued cause of action" means an
existing claim belonging to an association on which a suit or other
effective action has not been filed or taken by or on behalf of the
association on or before the last day of the sixth month after the
date on which the cause of action arose, involving:
(1) a claim for monetary damages or recovery of
property;
(2) a claim for equitable relief;
(3) a cause of action for breach of contract or for
enforcement of a contract; or
(4) a claim on a fidelity bond.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
§ 66.402. PAYMENT OF INSURED DEPOSIT LIABILITIES BY
FDIC. If the Federal Deposit Insurance Corporation pays the
insured deposit liabilities of an association that has been closed
or is being liquidated under this chapter, regardless of whether
the Federal Deposit Insurance Corporation has become receiver or
liquidating agent, the Federal Deposit Insurance Corporation is
subrogated, to the extent of the payment, to all rights that the
owners of the savings accounts or deposits have against the
association.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
§ 66.403. ENFORCEABILITY OF LOAN PROMISE OR AGREEMENT
MADE BY ASSOCIATION BEFORE CONSERVATORSHIP OR SUPERVISORY
CONTROL. If a promise or agreement to lend money is not otherwise
unenforceable under Chapter 26, Business & Commerce Code, and if
the promise or agreement is made by the association before the
association is placed under conservatorship or supervisory
control, the promise or agreement or a memorandum of the promise or
agreement is enforceable against the association only if the
promise or agreement or memorandum:
(1) is in writing and states the material terms of the
loan and the loan's repayment;
(2) is signed by an authorized officer or employee of
the association and the person to whom the promise or agreement was
made; and
(3) is approved by the association's board.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
