ENGROSSED
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 280
(By Senators Tomblin, Mr. President, and Boley,
By Request of the Executive)
____________
[Originating in the Committee on Banking and Insurance;
reported February 22, 1996.]
____________
A BILL to repeal section four-a, article eighteen, chapter forty-
seven of the code of West Virginia, one thousand nine
hundred thirty-one, as amended; to amend and reenact section
two, article one, chapter thirty-one-a of said code; to
amend and reenact sections five and eleven, article two of
said chapter; to further amend said article by adding
thereto a new section, designated section twelve-a; to amend
and reenact sections fourteen, fourteen-a and forty-two,
article four of said chapter; to amend and reenact section
twelve, article eight of said chapter; to amend and reenact
article eight-a of said chapter; to further amend said chapter by adding thereto three new articles, designated
articles eight-d, eight-e and eight-f; to amend and reenact
section three, article five, chapter forty-four of said
code; to amend and reenact section seven, article ten of
said chapter; and to amend and reenact section eleven,
article one, chapter forty-four-a of said code, all relating
generally to the definition of "bank" and "banking
institution"; licensing of financial institutions; trust
authority of interstate banks; the acquisition, by in-state
and out-of-state bank holding companies, of banks and bank
holding companies in West Virginia and the application
process, standards for approval, effect on competition,
acquisition deposit limitations in lieu of antitrust
depository caps, provision of reports, examinations,
issuance of rules, business of banking, enforcement and
penalties relating thereto; interstate bank branching by
merger, and the authority, effect on competition,
acquisition deposit limitations, notice and filing
requirements, powers and additional branches, examinations,
reports, cooperative regulatory agreements and fees,
enforcement and rules relating thereto; interstate branch
banking by de novo entry; authority for West Virginia state
banks to branch interstate de novo or by branch acquisition; authority for out-of-state state banks to branch into West
Virginia de novo or by branch acquisition; notice and
approval requirements, additional powers for out-of-state
branches of West Virginia banks, examinations, reports,
cooperative regulatory agreements, fees, enforcement, rules
and orders and notices relating to interstate branching; and
the establishment and authority of agency and representative
offices of foreign banks to conduct limited banking
activities, and the examinations, reports, cooperative
regulatory agreements, fees, enforcement, rules and orders
and notices relating thereto.
Be it enacted by the Legislature of West Virginia:
That section four-a, article eighteen, chapter forty-seven
of the code of West Virginia, one thousand nine hundred thirty-
one, as amended, be repealed; that section two, article one,
chapter thirty-one-a of said code be amended and reenacted; that
sections five and eleven, article two of said chapter be amended
and reenacted; that said article be further amended by adding
thereto a new section, designated section twelve-a; that sections
fourteen, fourteen-a and forty-two, article four of said chapter
be amended and reenacted; that section twelve, article eight of
said chapter be amended and reenacted; that article eight-a of
said chapter be amended and reenacted; that said chapter be further amended by adding thereto three new articles, designated
articles eight-d, eight-e and eight-f; that section three,
article five, chapter forty-four of said code be amended and
reenacted; that section seven, article ten of said chapter be
amended and reenacted; and that section eleven, article one,
chapter forty-four-a of said code be amended and reenacted, all
to read as follows:
CHAPTER 31A. BANKS AND BANKING.
ARTICLE 1. GENERAL PROVISIONS AND DEFINITIONS.
§31A-1-2. Definitions.
As used in this chapter, unless the context in which used
plainly requires a different meaning:
(a) The word "action", in the sense of a judicial
proceeding, means any proceeding in a court of competent
jurisdiction in which rights are adjudicated and determined and
shall embrace and include recoupment, counterclaim, setoff and
other related, similar and summary proceedings;
(b) The words "bank" and "banking institution" mean a
corporation or association heretofore or hereafter chartered to
conduct a banking business under the laws of the United States or
any state, territory, district or possession thereof, which is
authorized in West Virginia to accept deposits that the depositor
has a legal right to withdraw on demand and is authorized to engage in the business of commercial lending, and meets the
criteria set forth in Section 2(c) of the Bank Holding Company
Act, as amended, 12 U.S.C. §1841(c), heretofore or hereafter
chartered to conduct a banking business under the laws of West
Virginia or an association heretofore or hereafter authorized to
conduct a banking business in West Virginia under the laws of the
United States and having its principal office in this state and
shall embrace and include a savings bank, savings and loan
association, trust company or an institution combining banking
and trust company facilities, functions and services so chartered
or authorized to conduct such business in this state; and shall
include industrial banks authorized by article seven, chapter
thirty-one of this code, subject to the limitations therein
imposed on such industrial banks and further subject to the
limitations imposed thereon in this article
(c) The words "bankers' bank" mean a banking institution,
insured by the federal deposit insurance corporation, the stock
of which is owned exclusively by banks and other depository
institutions, and such banking institution and all subsidiaries
thereof are engaged exclusively in providing services for banks
and other depository institutions and their officers, directors
and employees;
(d) The term "banking business" means the functions, services and activities contained, detailed and embraced in
sections thirteen and fourteen, article four of this chapter, and
as elsewhere defined by law;
(e) The word "board" means the West Virginia board of
banking and financial institutions;
(f) The words "branch bank" mean an office or other place at
which a bank performs any or all banking business. For purposes
of this chapter, a branch bank does not include:
(1) A bank's principal place of business;
(2) Any customer bank communication terminals installed and
operated pursuant to section twelve-b, article eight of this
chapter; and
(3) Any loan origination office authorized by section
twelve-c, article eight of this chapter;
(g) The words "commissioner" or "commissioner of banking"
mean the commissioner of banking of West Virginia;
(h) The word "community" means a city, town or other
incorporated area, or, where not so incorporated, a trading area;
(i) The word "department" means the department of banking of
West Virginia;
(j) The words "deputy commissioner" or "deputy commissioner
of banking" mean the deputy commissioner of banking of West
Virginia;
(k) The word "fiduciary" means any trustee, agent, executor,
administrator, curator, committee, guardian or conservator,
special commissioner, receiver, trustee in bankruptcy, assignee
for creditors or any holder of a similar position of trust or
responsibility;
(l) The words "financial institutions" mean banks, building
and loan associations, industrial banks, industrial loan
companies, supervised lenders, credit unions and all other
similar institutions, whether persons, firms or corporations,
which are by law under the jurisdiction and supervision of the
commissioner of banking;
(m) The word "officer" when referring to any financial
institution, means any person designated as such in the bylaws
and includes, whether or not so designated, any executive
officer, the chairman of the board of directors, the chairman of
the executive committee, and any trust officer, assistant vice
president, assistant treasurer, assistant secretary, assistant
trust officer, assistant cashier, assistant comptroller or any
other person who performs the duties appropriate to those
offices, and the term "executive officer" as herein used, when
referring to banking institutions, means an officer of a bank
whose duties involve regular, active and substantial
participation in the daily operations of such institution and who, by virtue of his position, has both a voice in the
formulation of the policy of the bank and responsibility for
implementation of the policy, such responsibility of and
functions performed by the individual, and not his title or
office, being determinative of whether he is an "executive
officer";
(n) The words "out-of-state bank" or "out-of-state banking
institution" mean a bank chartered under the laws of a state or
United States territory, possession or district, other than West
Virginia, or organized under federal law and having its main
office located in a state, United States territory, possession or
district, other than West Virginia;
(n) (o) The words "person" or "persons" mean any individual,
partnership, society, association, firm, institution, company,
public or private corporation, state, governmental agency,
bureau, department, division or instrumentality, political
subdivision, county commission, municipality, trust, syndicate,
estate or any other legal entity whatsoever, formed, created or
existing under the laws of this state or any other jurisdiction;
(o) (p) The words "safe-deposit box" mean a safe-deposit
box, vault or other safe-deposit receptacle maintained by a
lessor bank, and the rules relating thereto apply to property or
documents kept therein in the bank's vault under the joint control of lessor and lessee;
(p) (q) The words "state bank" or "state banking
institution" mean, unless the context requires otherwise, a bank
chartered under the laws of West Virginia, as distinguished from
either an out-of-state bank or a national banking association and
is also referred to as a "West Virginia state bank" or "West
Virginia state banking institution"; and
(q) (r) The words "trust business" mean the functions,
services and activities contained, detailed and embraced in
section fourteen, article four of this chapter, and as elsewhere
defined by law and as may be included within the meaning of the
term "banking business".
ARTICLE 2. DIVISION OF BANKING.
§31A-2-5. Certificate or license to engage in business; filing
of amendments to charter, bylaws and foreign statutes.
(a) No person shall engage or continue in the business of a
financial institution in this state without a license or
certificate to do so issued in accordance with this section, or
other applicable law, which license or certificate remains
unsuspended, unexpired and unrevoked except that a corporation
which proposes to apply for such license or certificate may
secure its charter, adopt bylaws, elect its directors and
officers and perfect its organization.
(b) Application for such license or certificate shall be
upon such forms and contain such information as the commissioner
may prescribe. In connection with such applications every
corporate financial institution shall file a certified copy of
its charter and bylaws, a statement as to the amount of capital
that has been subscribed and paid in and a statement of its
financial condition duly verified under oath by its president or
vice president and its cashier or secretary as the case may be
and every financial institution other than a corporation shall
file a verified statement of its financial condition.
(c) If the application be that of a West Virginia state
banking institution, the commissioner of banking shall examine
the information, documents and statements submitted and, if he
finds that such banking institution has adopted bylaws which
provide practical, safe, just and equitable rules and methods for
the management of its business and it has complied in all
respects with the provisions of this chapter and other applicable
laws, he shall issue to it a certificate or license permitting it
to engage in business. If the application be that of a financial
institution other than a banking institution, the commissioner of
banking shall examine the information, documents and statements
submitted, and, if he finds that such financial institution has
adequate resources for the proposed business and has provided practical, safe, just and equitable rules and methods for the
management of its business, and it has complied in all respects
with the provisions of this chapter and other applicable laws and
that the public convenience and advantage will be promoted by the
issuance of a certificate or license thereto, he shall issue to
it a certificate or license permitting it to engage in business:
Provided, That any supervised lender which is operating in good
standing in accordance with the provisions of article four,
chapter forty-six-a of this code shall be presumed to have
established that the public convenience and advantage will be
promoted in regard to its application for a certificate of
authority to operate as an industrial loan company as defined in
article seven, chapter thirty-one of this code in the same
location for which it is licensed as a supervised lender. Such
certificate or license shall be preserved and displayed in the
place of business of such banking or other financial institution.
(d) In addition to the requirements of subsection (b) of
this section, every foreign corporation applying for a license or
certificate to engage in the business of a financial institution
in this state, other than an out-of-state banking institution,
shall file with the commissioner of banking a copy of the laws of
the jurisdiction under which it is organized which pertain to its
organization and powers and the conduct of its business. The commissioner shall examine the information, documents and
statements submitted by such foreign corporation and if he finds
that they provide practical, safe, just and equitable rules and
methods for the management of the business of the corporation,
that it has adequate resources for the proposed business and it
has complied in all respects with the provisions of this chapter
and other applicable laws and that the public convenience and
advantage will be promoted by the issuance of a license or
certificate thereto, he shall issue to such corporation a
certificate or license permitting it to engage in business in
this state, which certificate or license shall authorize such
corporation to engage in the business of the type of financial
institution specified therein, until the thirtieth day of the
following June. Thereafter a new certificate or license shall be
secured annually by any such foreign corporation. The fee for
the original and each additional license or certificate issued to
a foreign corporation shall be one hundred dollars, unless
otherwise provided by statute. A verified statement of the
financial condition of every such foreign corporation shall be
filed with the commissioner before the issuance of each annual
certificate or license. Such certificate or license shall be
preserved and displayed in the place of business of such
corporation.
(e) No amendment of the charter or bylaws of any domestic or
foreign corporation, other than an out-of-state banking
institution, engaging in business in this state as a financial
institution shall become effective until the proposed change
shall have been submitted to and approved by the commissioner of
banking; but, if the commissioner does not disapprove such
proposed change within twenty days after it is received by him,
it shall be deemed to have been approved. A certified copy of
the amendment of any statute of another state governing such a
foreign corporation shall be filed with the commissioner of
banking by such foreign corporation within thirty days after such
amendment becomes effective in such other state.
(f) Nothing contained in this code shall authorize any
person to engage in the banking business in this state except
corporations chartered to conduct a banking business under the
laws of West Virginia and which hold a license or certificate to
do so issued under this section, or associations authorized to
conduct a banking business in West Virginia under the laws of the
United States and having their principal place of business in
this state, out-of-state banks authorized to conduct the business
of banking in this state pursuant to articles eight-a, eight-d
and eight-e of this chapter, or foreign banks authorized to
conduct limited banking activities through licensed agency and representative offices in this state pursuant to article eight-f
of this chapter or through licensed federal branches or agencies
permitted under section seven, article eight-f of this chapter.
§31A-2-11.
Annual deposit and loan reports by banking
institutions.
Any state banking institution, all of whose business is
conducted entirely outside of the State of West Virginia, shall
not be subject to supervision by the department of banking or the
commissioner of banking, and shall not be required to make any
reports to it or him, or to publish such reports, and no consent
or authority of the commissioner shall be necessary or required
as to any of the acts and practices of such nonresident banks in
and about the conduct of their business outside of the State of
West Virginia, and the commissioner of banking shall not be
responsible for any acts or practices of such nonresident banks.
The officers and directors of such nonresident banking
institutions may all be nonresidents of the State of West
Virginia and such nonresident banking institutions may conduct
the banking business at such place or places outside of the State
of West Virginia as they may be permitted under the laws of the
jurisdiction in which such place or places are situated. The
restrictions in the banking laws of this state contained as to
establishment and maintenance of branch banks shall not be applicable to said nonresident banks, but no nonresident bank
shall operate or maintain any branch bank in this state. The
provisions, requirements, restrictions and limitations in the
banking laws contained relative to the capital stock, either
authorized or issued, and to the increase thereof, to the
acquisition and holding of real estate, to the oath and
qualifications of directors, to loans and the property, real or
personal, upon the security of which loans may be made, to the
borrowing of money by banking institutions and the hypothecation
of securities or other property for the same, to reserves, and to
dividends and all other restrictions and limitations of the
banking laws of this state, shall not apply to said nonresident
banks.
No provision of this section shall be construed as relieving
such nonresident banks from compliance with the laws of the
jurisdiction in which they may conduct business. The provisions
of this section shall not be applicable to any banking
institution any part of whose actual business is conducted within
the State of West Virginia, and nothing in this section contained
shall be interpreted as rendering any laws now in force or
hereafter enacted inapplicable to banking institutions doing
actual business in the State of West Virginia. Subsequently
enacted legislation shall be construed as applicable only to banking institutions having a place of business in this state,
unless a contrary intent specifically or by necessary implication
appears therein.
In addition to other reports that may be required under this
chapter, every banking institution with a main office or branch
located in this state shall file with the commissioner an annual
report specifying for its main office and each branch (excluding
automated teller machines) in this state:
(1) The location of each such office, including county and,
where applicable, municipality;
(2) The amount of deposits held by each such office as of
the end of the preceding calendar year; and
(3) The amount of loans outstanding by each such office at
the end of the preceding calendar year.
The foregoing report shall be based upon the bank's
allocation of its deposit base and loan portfolio among its
offices. The report shall be filed with the commissioner on or
before the fifteenth day of February of each year on forms
prescribed by the commissioner. This requirement may be met by
the filing of such report by the bank's bank holding company
pursuant to subsection (a), section seven, article eight-a of
this chapter.
§31A-2-12a
. Establishment of deposit acquisition limitation.
After a review of the structure of depository institutions
in the state of West Virginia, the Legislature hereby determines
that:
(a) It is in the best interest of this state and its
citizens to foster and encourage healthy competition among its
domestic depository institutions;
(b) Obtaining excessive concentration or control of the
deposit resources of this state by merger or acquisition is
antithetical to fostering a competitive environment; and
(c) Therefore, an acquisition or merger shall not be
permitted under this chapter or otherwise if upon consummation of
the transaction, the resulting depository institution or its
holding company, including any depository institution(s)
affiliated therewith, would assume sufficient additional deposits
to cause it to control deposits in this state in excess of the
following acquisition deposit limitation amount: Twenty percent
of the total amount of all deposits held by insured depository
institutions, which permissible amount shall increase to
twenty-five percent of such total deposits on the thirty-first
day of May, one thousand nine hundred ninety-seven.
(d) The term "depository institutions", as used in this
section, shall include, but is not limited to, state-chartered
banking institutions, national banking associations, federal savings and loan associations, bank holding companies, savings
and loan holding companies, federal savings banks, state-
chartered credit unions and federally-chartered credit unions.
(e) Any merger or acquisition contrary to this provision is
unlawful: Provided, That the commissioner may by rule adopt a
procedure whereby said acquisition deposit limitation as set
forth herein may be waived for good cause shown.
ARTICLE 4. BANKING INSTITUTIONS AND SERVICES GENERALLY.
§31A-4-14. Trust powers of banking institutions.
(a) Every state banking institution, except industrial banks
created and organized pursuant to the provisions of article
seven, chapter thirty-one of this code, which files the reports
required in the following section and which is not otherwise
prohibited by the commissioner or federal bank regulators from
doing so, shall have and exercise the following powers:
(a) (1) All the powers, rights and privileges of any state
banking institution;
(b) (2) To act as trustee, assignee, special commissioner,
general or special receiver, guardian, executor, administrator,
committee, agent, curator or in any other fiduciary capacity, and
to take, assume, accept and execute trusts of every description
not inconsistent with the constitution and laws of the United
States of America or of this state; and to receive, hold, manage and apply any sinking fund on the terms and for the purposes
specified in the instrument creating such fund;
(c) (3) To act as registrar, transfer agent or dividend or
coupon paying agent for any corporation;
(d) (4) To make, hold and dispose of investments and
establish common trust funds, and account therefor, pursuant to
the provisions of chapter forty-four of this code;
(e) (5) To purchase and sell and take charge of and receive
the rents, issues and profits of any real estate for other
persons or corporations;
(f) (6) To act as trustee or agent in any collateral trust
and in order to secure the payment of any obligations of any
person, firm, private corporation, public corporation, public
body or public agency to receive and hold in trust any items of
personal property (including without limitation notes, bonds,
debentures, obligations and certificates for shares of stock)
with the right in case of default to sell and dispose of such
personal property and to collect, settle and adjust any
obligations for the payment of money, and at any sale of such
personal property held by it, to purchase the same for the
benefit of all or any of the holders of the obligations, to
secure the payment of which such items of personal property were
pledged and delivered to the trustee or agent. Any such sale may be made without any proceedings in any court, and at such times
and upon such terms as may be specified in the instrument or
instruments creating the trust, or, in the absence of any
specification of terms, at such time and upon such terms as the
trustee shall deem reasonable; and
(g) (7) To do and perform any act or thing requisite or
necessary in, or incidental to, the exercise of the general
powers herein set forth.
(b) All national banks having their main office principal
offices in this state which have been, or hereafter may be,
authorized under the laws of the United States to act as trustee
and in other fiduciary capacities in the state of West Virginia
shall have all the rights, powers, privileges and immunities
conferred hereunder, provided they comply with the requirements
hereof.
(c) Banks having their main office in another state which
lawfully have a branch in this state pursuant to the provisions
of federal law or articles eight-d or eight-e of this chapter
which have been, or hereafter may be, authorized under the laws
of the United States or the laws of the state in which such bank
is chartered to act as trustee and in other fiduciary capacities
in the state in which their main office is located shall have all
the rights, powers, privileges and immunities conferred hereunder, provided they comply with the requirements hereof.
§31A-4-14a. Transfer of fiduciary accounts or relationships
between affiliated subsidiary banks of a bank holding
company.
(a) Notwithstanding any other provision of this code, and
unless the will, deed or other instrument creating a trust or
fiduciary account or relationship specifically provides
otherwise, any affiliate subsidiary which is empowered with and
authorized to exercise trust powers, or otherwise performs
fiduciary services for a fee, may, without any order or other
action on the part of any court or otherwise, transfer to any
other affiliate subsidiary exercising or authorized to exercise
trust powers any or all rights, franchises and interests in its
fiduciary accounts or relationships including, but not limited
to, any or all appointments, designations and nominations and any
other rights, franchises and interests, as trustee, executor,
administrator, guardian, committee, escrow agent, transfer and
paying agent of stocks and bonds and every other fiduciary
capacity; and the transferee or receiving affiliate subsidiary
shall hold and enjoy all rights of property, franchises and
interests in the same manner and to the same extent as such
rights, franchises and interests were held or enjoyed by the
transferor affiliate subsidiary. As to transfers to an affiliate subsidiary pursuant to this section, the receiving affiliate
subsidiary shall take, receive, accept, hold, administer and
discharge any grants, gifts, bequests, devises, conveyances,
trusts, powers and appointments made by deed, deed of trust,
will, agreement, order of court or otherwise to, in favor of, or
in the name of, the transferor affiliate subsidiary, whether
made, executed or entered before or after such transfer and
whether to vest or become effective before or after such
transfer, as fully and to the same effect as if the receiving
affiliate subsidiary had been named and in such deed, deed of
trust, will, agreement, order or other instrument instead of such
transferor affiliate subsidiary. All acts taken or performed in
its own name or in the name of or on behalf of the transferor
affiliate subsidiary by any receiving affiliate subsidiary as
trustee, agent, executor, administrator, guardian, depository,
registrar, transfer agent or other fiduciary with respect to
fiduciary accounts or relationships transferred pursuant to this
section are as good, valid and effective as if made by the
transferor affiliate subsidiary.
(b) For purposes of this section, the term "affiliate
subsidiary" means any two or more subsidiaries (as defined in
section two, article eight-a of this chapter) which are "banks"
or "banking institutions" (as those terms are defined in section two, article one of this chapter) and which have a common bank
holding company as their parent company. For purposes of this
section, the term "bank holding company" shall have the meaning
set forth in section three one, article eight-a of this chapter.
(c) At least thirty days before any transfer authorized by
this section, the transferor affiliate subsidiary shall send a
statement of intent to transfer together with the name and
address of the transferee or receiving affiliated subsidiary by
regular United States mail to the most recent known address of
all persons who appear in the records of the transferor affiliate
subsidiary as having a vested present interest in the trust,
fiduciary account or relationship to be transferred.
(d) This section shall be applicable to both domestic and
foreign bank holding company affiliate subsidiaries.
§31A-4-42. Unlawful for persons other than banking institutions
to engage in the banking business; penalties.
No person, except banking associations institutions
chartered and under the laws of this state, or authorized to
conduct a banking business in this state under the laws of the
United States of America and having their principal places of
business in this state, and state banking institutions which hold
a permit, license or certificate to engage in such business
issued by the commissioner under the provisions of section five, article two of this chapter, or those chartered under the laws of
another state or the United States of America with branch offices
in this state under the provisions of articles eight-d and eight-
e of this chapter, shall engage in the business of banking or the
trust business the state of West Virginia, or shall receive or
accept deposits of money, or borrow money by receiving and giving
credits for deposits, or by issuing certificates of deposits or
certificates of indebtedness, or by making and negotiating any
writing purporting to be a bond, contract or other obligation,
the performance of which requires the holder or other party to
make deposits of money with the issuer or receive or accept
deposits by means of any other plan, pretext, scheme, shift or
device.
Nothing contained in this section shall affect the rights,
privileges, objects or purposes delegated to other corporations
by the general corporation law or other laws of this state.
Any corporation or individual who violates any of the
provisions of this section shall be guilty of a misdemeanor, and,
upon conviction, shall be fined not more than five thousand
dollars, and, in addition to such penalty, every corporation so
offending shall forfeit its corporate franchise, and every
individual so offending shall be subject to a further penalty by
confinement in jail for not more than one year.
ARTICLE 8. HEARINGS; ADMINISTRATIVE PROCEDURES; JUDICIAL REVIEW;
UNLAWFUL ACTS; PENALTIES.
§31A-8-12. Procedure for authorization of branch banks;
temporary offices at colleges and universities; limitations
and restrictions; examinations and hearings; standards of
review; penalties for violation of section.
(a) Except as otherwise provided herein, no banking
institution shall engage in business at any place other than at
its principal office in this state, at a branch bank in this
state, permitted by this section as at a customer bank
communication terminal permitted by section twelve-b of this
article or at any loan organization origination office permitted
by section twelve-c of this article.
(1) Acceptance of a deposit or allowing a withdrawal at the
banking offices of any subsidiary, as defined in section two,
article eight-a of this chapter, for credit or debit to the
customer's account at any other subsidiary of the same bank
holding company is permissible and does not constitute branch
banking. In addition, the conduct of activity at branch offices
as an agent for any bank subsidiary of the same bank holding
company shall be permitted to the same extent allowed by federal
law for national banks pursuant to 12 U.S.C. 1828, and does not
constitute branch banking; nor shall such activity constitute a
violation of section forty-two, article four of this chapter: Provided, That no banking institution may utilize that agency
relationship to evade state consumer protection laws, including
usury laws, or any other applicable laws of this state, or to
conduct any activity that is not financially-related, as that
term is defined by section two, article eight-c of this chapter.
(2) A banking institution located in a county where there is
also a higher educational institution as defined in section two,
article one, chapter eighteen-b of this code, may establish a
temporary business office on the campus of any such educational
institution located in such county for the limited purposes of
opening accounts and accepting deposits for a period not in
excess of four business days per semester, trimester or quarter:
Provided, That prior to opening any temporary office, a banking
institution must first obtain written permission from the
institution of higher education. The term "business days", for
the purpose of this subsection, means days exclusive of
Saturdays, Sundays and legal holidays as defined in section one,
article two, chapter two of this code.
(3) Any banking institution which on the first day of
January, one thousand nine hundred eighty-four, was authorized to
operate an off-premises walk-in or drive-in facility, pursuant to
the law then in effect, may, as of the seventh day of June, one
thousand nine hundred eighty-four, operate such facility as a branch bank and it shall not be necessary, for the continued
operation of such branch bank, to obtain additional approvals,
notwithstanding the provisions of subsection (d) of this section
and subdivision (6), subsection (b), section two, article three
of this chapter.
(b) Except for a bank holding company, it shall be unlawful
for any individual, partnership, society, association, firm,
institution, trust, syndicate, public or private corporation, or
any other legal entity, or combination of entities acting in
concert, to directly or indirectly own, control or hold with
power to vote, twenty-five percent or more of the voting shares
of each of two or more banks, or to control in any manner the
election of a majority of the directors of two or more banks.
(c) A banking institution may establish branch banks either
by:
(1) The construction, lease or acquisition of branch bank
facilities as follows within any county of this state; or
(A) After the seventh of June, one thousand nine hundred
eighty-four, within the county in which that banking
institution's principal office is located or within the county in
which that banking institution had prior to January first, one
thousand nine hundred eighty-four, established a branch bank,
pursuant to subdivision (2) of this subsection; and
(B) After the thirty-first of December, one thousand nine
hundred eighty-six, within any county in this state; or
(2) The purchase of the business and assets and assumption
of the liabilities of, or merger or consolidation with, another
banking institution.
(d) Notwithstanding any other provision of this chapter to
the contrary, subject to and in furtherance of the board's
authority under the provisions of subdivision (6), subsection
(b), section two, article three of this chapter, and subsection
(g) of this section, the board may approve or disapprove the
application of any state banking institution to establish a
branch bank.
(e) The principal main office or a branch of a West Virginia
state banking institution may not be relocated without the
approval by order of the commissioner. as of the seventh day of
June, one thousand nine hundred eighty-four, shall continue to be
the principal office of such banking institution for purposes of
establishing branch banks under this section, notwithstanding any
subsequent change in the location of such banking institution's
principal office
(f) Any banking institution which is authorized to establish
branch banks pursuant to this section may provide the same
banking services and exercise the same powers at each such branch bank as may be provided and exercised at its principal banking
house.
(g) The board shall, upon receipt of any application to
establish a branch bank, provide notice of such application to
all banking institutions. A banking institution may, within ten
days after receipt of such notice, file a petition to intervene
and shall, if it so files such petition, thereupon become a party
to any hearing relating thereto before the board.
(h) The commissioner shall prescribe the form of the
application for a branch bank and shall collect an examination
and investigation fee of one thousand dollars for each filed
application for a branch bank that is to be established by the
construction, lease or acquisition of a branch bank facility, and
two thousand five hundred dollars for a branch bank that is to be
established by the purchase of the business and assets and
assumption of the liabilities of, or merger or consolidation with
another banking institution. Notwithstanding the above, if the
merger or consolidation is between an existing banking
institution and a bank newly incorporated solely for the purpose
of facilitating the acquisition of the existing banking
institution, the commissioner shall collect an examination and
investigation fee of five hundred dollars. The board shall
complete the examination and investigation within ninety days from the date on which such application and fee are received,
unless the board requests in writing additional information and
disclosures concerning the proposed branch bank from the
applicant banking institution, in which event such ninety-day
period shall be extended for an additional period of thirty days
plus the number of days between the date of such request and the
date such additional information and disclosures are received.
(i) Upon completion of the examination and investigation
with respect to such application, the board shall, if a hearing
be required pursuant to subsection (j) of this section, forthwith
give notice and hold a hearing pursuant to the following
provisions:
(1) Notice of such hearing shall be given to the banking
institution with respect to which the hearing is to be conducted
in accordance with the provisions of section two, article seven,
chapter twenty-nine-a of this code, and such hearing and the
administrative procedures in connection therewith shall be
governed by all of the provisions of article five, chapter
twenty-nine-a of this code, and shall be held at a time and place
set by the board but shall not be less than ten nor more than
thirty days after such notice is given.
(2) At any such hearing a party may represent himself or be
represented by an attorney at law admitted to practice before any circuit court of this state.
(3) After such hearing and consideration of all the
testimony and evidence, the board shall make and enter an order
approving or disapproving the application, which order shall be
accompanied by findings of fact and conclusions of law as
specified in section three, article five, chapter twenty-nine-a
of this code, and a copy of such order and accompanying findings
and conclusions shall be served upon all parties to such hearing,
and their attorneys of record, if any.
(j) No state banking institution may establish a branch bank
until the board, following an examination, investigation, notice
and hearing, enters an order approving an application for that
branch bank: Provided, That no such hearing shall be required
with respect to any application to establish a branch bank which
is approved by the board unless a banking institution has timely
filed a petition to intervene pursuant to subsection (g) of this
section. The order shall be accompanied by findings of fact
that:
(1) Public convenience and advantage will be promoted by the
establishment of the proposed branch bank;
(2) Local conditions assure reasonable promise of successful
operation of the proposed branch bank and of those banks and
branches thereof already established in the community;
(3) Suitable physical facilities will be provided for the
branch bank;
(4) The applicant state-chartered banking institution
satisfies such reasonable and appropriate requirements as to
sound financial condition as the commissioner or board may from
time to time establish by regulation;
(5) The establishment of the proposed branch bank would not
result in a monopoly, nor be in furtherance of any combination or
conspiracy to monopolize the business of banking in any section
of this state; and
(6) The establishment of the proposed branch bank would not
have the effect in any section of the state of substantially
lessening competition, nor tend to create a monopoly or in any
other manner be in restraint of trade, unless the anticompetitive
effects of the establishment of that proposed branch bank are
clearly outweighed in the public interest by the probable effect
of the establishment of the proposed branch bank in meeting the
convenience and needs of the community to be served by that
proposed branch bank.
If the branch results from the merger or acquisition of
banking institutions, the findings of fact required in
subdivisions (1) through (3) of this subsection may be based on
the performance and suitability of the previous banking offices.
(k) Any party who is adversely affected by the order of the
board shall be entitled to judicial review thereof in the manner
provided in section four, article five, chapter twenty-nine-a of
this code. Any such party adversely affected by a final judgment
of a circuit court following judicial review as provided in the
foregoing sentence may seek review thereof by appeal to the
supreme court of appeals in the manner provided in article six,
chapter twenty-nine-a of this code.
(l) Pursuant to the resolution of its board of directors and
with the prior written approval of the commissioner, a state
banking institution may discontinue the operation of a branch
bank upon at least thirty days' prior public notice given in such
form and manner as the commissioner prescribes.
(m) Any violation of any provision of this section shall
constitute a misdemeanor offense punishable by applicable
penalties as provided in section fifteen of this article.
ARTICLE 8A. ACQUISITIONS OF BANKS BY BANK HOLDING COMPANIES.
§31A-8A-1. Definitions.
For purposes of this article:
(a) "Acquire" means:
(1) For a company to merge or consolidate with a bank
holding company;
(2) For a company to assume direct or indirect ownership or control of:
(i) More than twenty-five percent of any class of voting
shares of a bank holding company or a bank, if the acquiring
company was not a bank holding company prior to such acquisition;
(ii) More than five percent of any class of voting shares of
a bank holding company or a bank, if the acquiring company was a
bank holding company prior to such acquisition; or
(iii) All or substantially all of the assets of a bank
holding company or a bank; or
(3) For a company to take any other action that results in
the direct or indirect acquisition of control by such company of
a bank holding company or a bank.
(b) "Affiliate" means any company that controls, is
controlled by, or is under common control with a bank or another
company or otherwise meets the criteria set forth in Section 2(k)
of the Bank Holding Company Act, 12 U.S.C. §1841(k).
(c) "Bank" means a corporation or association heretofore or
hereafter chartered to conduct a banking business under the laws
of the United States or any state, territory, district or
possession thereof, which is authorized to accept deposits that
the depositor has a legal right to withdraw on demand and is
authorized to engage in the business of commercial lending and
meets the criteria set forth in Section 2(c) of the Bank Holding Company Act, 12 U.S.C. §1841(c).
(d) "Bank holding company" means any company which has
control over any bank or over any company that is or becomes a
bank holding company as that term is set forth in Section 2(a) of
the Bank Holding Company Act, 12 U.S.C. §1841(a), and unless the
context requires otherwise, includes a West Virginia bank holding
company, an out-of-state bank holding company and a foreign bank
holding company.
(e) "Bank Holding Company Act" means the federal Bank
Holding Company Act of 1956, as amended, 12 U.S.C. §§1841 et.
seq.
(f) "Bank supervisory agency" means any of the following:
(1) Any agency of another state with primary responsibility
for chartering and supervising banks; and
(2) The office of the comptroller of the currency, the
federal deposit insurance corporation, the board of governors of
the federal reserve system and any successor to these agencies.
(g) "Board of Banking and Financial Institutions" means the
board created pursuant to article three of this chapter and is
referred to herein as "board".
(h) "Branch" or "branch bank" has the meaning set forth in
subsection (f), section two, article one of this chapter.
(i) "Commissioner" means the West Virginia commissioner of banking then in office and, where appropriate, all of his or her
successors and predecessors in office.
(j) "Company" has the meaning set forth in Section 2(b) of
the Bank Holding Company Act, 12 U.S.C. §1841(b), and includes a
bank holding company.
(k) "Control" shall be construed consistently with Section
2(a) of the Bank Holding Company Act, 12 U.S.C. §1841(a).
(l) "Deposit" has the meaning set forth in 12 U.S.C.
§1813(l) plus all deposits held by credit unions within this
state.
(m) "Depository institution" means any institution included
for any purpose within the definitions of "insured depository
institution" as set forth in 12 U.S.C. §§1813 (c)(2) and (3).
(n) "Foreign bank holding company" means a bank holding
company that is organized under the laws of a country other than
the United States (including any territory or possession
thereof).
(o) "Home state regulator" means, with respect to an out-of-
state bank holding company, the bank supervisory agency of the
state in which such company maintains its principal place of
business.
(p) "Out-of-state bank holding company" means:
(1) A bank holding company that is not a West Virginia bank holding company; and
(2) Unless the context requires otherwise, includes a
foreign bank holding company.
(q) "Principal place of business" of a bank holding company
means the state in which the total deposits of its bank
subsidiaries were the greatest on the later of the first day of
July, one thousand nine hundred sixty-six, or the date on which
such company became a bank holding company.
(r) "State" means any state, territory or other possession
of the United States, including the District of Columbia.
(s) "Subsidiary" has the meaning set forth in Section 2(d)
of the Bank Holding Company Act, 12 U.S.C. §1841(d).
(t) "West Virginia bank" means a bank that is:
(1) Organized under the laws of the state of West Virginia;
or
(2) Organized under federal law and has its main office in
this state.
(u) "West Virginia bank holding company" means a bank
holding company that:
(1) Had its principal place of business in this state on the
first day of July, one thousand nine hundred sixty-six or the
date on which it became a bank holding company, whichever is
later; and
(2) Is not controlled by a bank holding company other than
a West Virginia bank holding company.
(v) "West Virginia state bank" means a bank organized under
the laws of the state of West Virginia.
§31A-8A-2. Scope and statement of legislative intent.
This article sets forth the conditions under which a company
may acquire a West Virginia state bank or may form or acquire a
West Virginia bank holding company. This article is intended not
to discriminate against out-of-state bank holding companies or
against foreign bank holding companies in any manner that would
violate Section 3(d) of the Bank Holding Company Act, 12 U.S.C.
§1842(d), as amended effective September 29, 1995, by section 101
of the Riegle-Neal Interstate Banking and Branching Efficiency
Act of 1994, Public Law No. 103-328.
§31A-8A-3. Permitted acquisitions.
(a) Except as otherwise expressly permitted by federal law,
no company may form a West Virginia bank holding company or
acquire a West Virginia state bank or a bank holding company
controlling a West Virginia state bank without the prior
application and approval upon order of the board.
(b) The prohibition in subsection (a) of this section shall
not apply where the acquisition is made:
(1) Solely for the purpose of facilitating an acquisition otherwise permitted under this article;
(2) In a transaction arranged by the commissioner with the
consent of the West Virginia board of banking and financial
institutions with another state or federal bank supervisory
agency to prevent the insolvency or closing of the acquired bank;
or
(3) In a transaction in which a national bank or out-of-
state state bank forms its own bank holding company, if the
ownership rights of the former bank shareholders are
substantially similar to those of the shareholders of the new
bank holding company.
(c) In any transaction involving the acquisition or change
in control of a West Virginia bank, West Virginia bank holding
company, bank branch located in West Virginia by a bank holding
company, the formation of a West Virginia bank holding company or
the acquisition of a thrift institution in West Virginia by a
bank holding company for which an application to the board for
approval is not initially required under subsection (a) or (b) of
this section, the party seeking the action shall give written
notice to the commissioner at the time the application or notice
is filed with the responsible federal bank supervisory agency and
at least forty-five days before the effective date of the
acquisition, unless a shorter period of notice is required under applicable federal law. In addition, the parties shall give the
commissioner copies of all final federal and state applications
filed in connection with the transaction together with a two
hundred fifty dollar filing fee. Unless preempted by federal
law, the commissioner shall have thirty days from receipt of the
written notice to object to any proposed transaction, require an
application and request a hearing before the board on the basis
that the transaction is contrary to applicable West Virginia law.
The failure to object within thirty days shall be construed as
consent by the commissioner, or, in his or her discretion, the
commissioner may, at any time, consent in writing.
(d) To the extent that any acquisition under this section
involves the merger of a bank with and into a West Virginia state
bank, the merger transaction remains subject to the jurisdiction
and approval of the board pursuant to section seven, article
seven of this.
(e) An acquisition shall not be permitted under this article
or otherwise if upon consummation of the transaction, the
resulting bank or bank holding company, including any depository
institution(s) affiliated with the applicant, would assume
sufficient additional deposits to cause it to control deposits in
this state in excess of that allowed by section twelve-a, article
two of this chapter: Provided, That the commissioner may by rule adopt a procedure whereby said acquisition deposit limitation as
set forth in this code may be waived for good cause shown. The
commissioner shall calculate the acquisition deposit limitation
based upon the most recently available reports containing such
deposit information filed with state or federal authorities.
§31A-8A-4. Required application.
(a) A company that proposes to make an acquisition under
this article shall:
(1) File with the commissioner a copy of the application
that such company has filed with the responsible federal bank
supervisory agency, together with such additional information as
the commissioner may prescribe; and
(2) Pay to the commissioner a four thousand five hundred
dollar application fee.
(b) To the extent consistent with the effective discharge of
the commissioner's responsibilities, the forms established under
this article for application and reporting shall conform to those
established by the board of governors of the federal reserve
system under the Bank Holding Company Act.
(c) In connection with an application received under this
article, the commissioner shall:
(1) Require that prior notice of the application be
published once in a daily newspaper of general circulation and provide an opportunity for public comment; and
(2) Make the application available for public inspection to
the extent required or permitted under applicable state law.
(d) If the applicant is an out-of-state bank holding company
that is not incorporated under the laws of this state, it shall
submit with the application proof that the applicant has complied
with applicable requirements of West Virginia law requiring
foreign corporations to qualify to do business in the state of
West Virginia.
§31A-8A-5. Standards for approval.
(a) In deciding whether to approve an application for a
proposed acquisition under this article, the board shall consider
whether the acquisition may:
(1) Be detrimental to the safety and soundness of the West
Virginia state bank or the West Virginia bank holding company to
be acquired which controls a West Virginia state bank, or be
contrary to the best interests of the customers or shareholders
of the bank whose shares are affected by the action, taking into
consideration the financial and managerial resources and further
prospects of the company or companies and the banks concerned;
(2) Result in a substantial reduction of competition in any
section of this state, or result in a monopoly, or would be in
furtherance of any combination or conspiracy to monopolize or to attempt to monopolize the business of banking in any section of
this state;
(3) Have a significantly adverse effect on the convenience
and needs of the community or communities in this state that are
served by the West Virginia state bank or the West Virginia bank
holding company to be acquired; or
(4) Violate the acquisition deposit limitation set forth in
section three of this article.
(b) The board shall not approve an application for, nor
shall the commissioner consent to, an acquisition under this
article unless the West Virginia bank to be acquired, or all West
Virginia bank subsidiaries of the bank holding company to be
acquired, have as of the proposed date of acquisition been in
existence and in continuous operation for more than two years:
Provided, That this limitation shall not apply to acquisitions
made on or after the thirty-first day of May, one thousand nine
hundred ninety-seven.
(c) The board may approve an application which may lessen
competition if the anticompetitive effects of the proposed action
are clearly outweighed in the public interest by the probable
effect of the action in meeting the convenience and needs of the
community to be served.
(d) In deciding whether to approve an application for an acquisition under this article, the board shall consider the
applicant's record of compliance with all applicable state(s) and
federal community reinvestment laws.
§31A-8A-6. Procedures relating to applications.
(a) The board shall decide whether to approve an acquisition
under this article within one hundred twenty days after receipt
of a completed application: Provided, That if the board or
commissioner requests additional information from the applicant
following receipt of a completed application, the time limit for
decision by the board shall be the later of:
(i) The date set forth above in this subsection; or
(ii) Thirty days after the board's or commissioner's
receipt, whichever is applicable, of the requested additional
information.
(b) The board shall, in accordance with its rules, hold a
public hearing in connection with an application and determine
any significant issue of law or fact raised with respect to the
proposed acquisition relevant and necessary for proper
disposition of the application.
(c) If the board holds a full public hearing under the
provisions set forth in article five, chapter twenty-nine-a of
this code in connection with an application, the time limit
specified in subsection (a) of this section shall be extended to the later of thirty days after the conclusion of the public
hearing or thirty days after submission of all documents and
materials necessary for proper adjudication of the matter,
including transcripts.
(d) An application shall be deemed approved if the board
takes no action on the application within the time limits
specified in this section.
§31A-8A-7. Reports; examinations.
(a) To the extent specified by the commissioner by rule,
order or written request, each bank holding company that directly
or indirectly controls a West Virginia bank, bank branch in West
Virginia or a West Virginia bank holding company shall submit to
the commissioner an annual report specifying for each bank and
branch (excluding automated teller machines) in this state
controlled by the bank holding company:
(i) The location of each such office, including county and,
where applicable, municipality;
(ii) The amount of deposits held by each such office as of
the end of the preceding calendar year; and
(iii) The amount of loans outstanding by each such office at
the end of the preceding calendar year.
The foregoing report shall be based upon each bank's
allocation of its deposit base and loan portfolio among its main office and branches. The report shall be filed with the
commissioner on or before the fifteenth day of February of each
year on forms prescribed by the commissioner.
(b) A parent bank holding company controlling a bank or bank
holding company having, or through a subsidiary having, a place
of business in this state shall, on or before the thirty-first
day of March of each year, register with the commissioner on
forms provided or prescribed by said office, which shall include
such information with respect to the financial condition,
operation, management and intercompany relationships of the
parent bank holding company and its subsidiaries and related
matters as the commissioner may deem necessary or appropriate to
carry out the purposes of this article. The information required
herein may be supplied by submission of copies of other similar
federal or state regulatory filings or forms containing the
information, unless otherwise required by order or rule.
(c) The commissioner may enter into cooperative agreements
with any other bank supervisory agencies to facilitate the
examination of any bank holding company that: (i) Has acquired
or has an application pending to acquire a West Virginia bank or
West Virginia bank holding company pursuant to this article; or
(ii) operates a subsidiary doing business in this state which is
subject to the jurisdiction or supervision of the commissioner. The commissioner may accept reports of examinations and other
records from such other authorities in lieu of conducting his or
her own examination of such bank holding companies or their
subsidiaries. The commissioner may take any action jointly with
other regulatory agencies having concurrent jurisdiction over
such bank holding companies or subsidiaries, or may take action
independently in order to carry out his or her responsibilities
under this chapter.
(d) When the commissioner considers it necessary, he or she
may require any bank holding company that has acquired a West
Virginia bank, bank branch in West Virginia or West Virginia bank
holding company to submit such reports to the commissioner as he
or she determines to be necessary or appropriate for the purpose
of carrying out his or her responsibilities.
(e) When the commissioner of banking considers it necessary
or appropriate, he or she may examine any bank holding company
that has acquired or has an application pending to acquire a West
Virginia bank, bank branch in West Virginia or West Virginia bank
holding company. The cost of an examination in connection with
an application, if in excess of the initial fee, shall be
assessed against and paid by the bank holding company examined.
The commissioner may request the bank holding company to be
examined pursuant to this subsection to advance the estimated cost of such examination. The cost of an examination for a bank
holding company controlling a West Virginia bank or West Virginia
bank holding company regarding compliance with the law of this
state or safe and sound banking practices shall be assessed
against and paid by the bank holding company examined.
§31A-8A-8. Authority to issue rules; cooperative agreements;
fees.
In order to carry out the purposes of this article, the
commissioner may:
(a) Adopt rules and issue orders;
(b) Enter into cooperative, coordinating or information-
sharing agreements with any other bank supervisory agency or any
organization affiliated with or representing one or more bank
supervisory agencies;
(c) Accept any report of examination or investigation by
another bank supervisory agency having concurrent jurisdiction
over a West Virginia state bank or a bank holding company that
controls a West Virginia state bank in lieu of conducting the
commissioner's own examination or investigation of such bank
holding company or bank;
(d) Enter into contracts with any bank supervisory agency
having concurrent jurisdiction over a West Virginia state bank or
a bank holding company that controls a West Virginia state bank to engage the services of such agency's examiners at a reasonable
rate of compensation, or to provide the services of the
commissioner's examiners to such agency at a reasonable rate of
compensation: Provided, That any such contract shall be deemed
excluded from the requirements of article three, chapter five-a
of this code;
(e) Enter into joint examinations or joint enforcement
actions with any other bank supervisory agency having concurrent
jurisdiction over any West Virginia state bank or any bank
holding company that controls a West Virginia state bank:
Provided, That the commissioner may take any such action
independently if the commissioner determines that such action is
necessary to carry out his or her responsibilities under this
article or to enforce compliance with the laws of this state:
Provided, however, That in the case of an out-of-state bank
holding company, the commissioner shall recognize the authority
of the home state regulator over corporate governance matters and
the primary responsibility of the home state regulator with
respect to safety and soundness matters; and
(f) Assess supervisory and examination fees that shall be
payable by any bank holding company operating a bank or bank
branch in West Virginia in connection with the commissioner's
performance of his or her duties under this article. The commissioner shall charge and collect from each bank holding
company and pay into a special revenue account in the state
treasury for the department of banking an annual assessment
payable on the fifteenth day of February computed upon the total
deposits in this state of the bank holding company as of the last
business day in December of the previous year as is set out in
section eight, article of this chapter. The payment of such
registration fee shall be accompanied by the report prescribed by
the commissioner under subsection (a), section seven of this
article. Examination fees may be shared with other bank
supervisory agencies or any organizations affiliated with or
representing one or more bank supervisory agencies in accordance
with agreements between them and the commissioner.
§31A-8A-9. Authority to conduct banking business; credit card
processing.
(a) Except as authorized in this article or articles eight-
d, eight-e or eight-f of this chapter, no banking institution
incorporated under the laws of any other state or having its
principal place of business in any other state may receive
deposits or transact any banking business of any kind in this
state other than the lending of money.
(b) A bank holding company with its principal place of
business in another state or foreign country may establish electronic data processing facilities and credit card processing
facilities in West Virginia. Such facilities are those
established solely for the purpose of processing accounts and/or
processing transactions relating to the issuance of credit cards.
§31A-8A-10. Penalties.
(a) The commissioner or board may enforce the provisions of
this article by any appropriate action in the circuit court of
Kanawha county or other court having proper jurisdiction,
including an action for civil money penalties or injunctive
relief: Provided, That the commissioner shall promptly give
notice to the home state regulator of any enforcement action
initiated against an out-of-state bank holding company and, to
the extent practicable, shall consult and cooperate with the home
state regulator in pursuing and resolving said enforcement
action.
(b) Any violation of any provision of this article shall
constitute a misdemeanor offense, which, upon conviction thereof,
shall be punishable by applicable penalties as provided in
section fifteen, article eight of this chapter.
ARTICLE 8D. INTERSTATE BRANCHING BY BANK MERGERS.
§31A-8D-1. Legislative purpose.
It is the express intent of this article to permit
interstate branching by merger under Section 102 of the Riegle-Neal Interstate Banking and Branching Efficiency Act of
1994, Public Law No. 103-328, in accordance with the provisions
set forth in this article.
§31A-8D-2. Definitions.
As used in this article, unless a different meaning is
required by the context, the following words and phrases shall
have the following meanings:
(a) "Bank" has the meaning set forth in 12 U.S.C. §1813(h):
Provided, That the term "bank" shall not include any "foreign
bank" as defined in 12 U.S.C. §3101(7), except that such term
shall include any foreign bank organized under the laws of a
territory of the United States, Puerto Rico, Guam, American Samoa
or the Virgin Islands, the deposits of which are insured by the
federal deposit insurance corporation.
(b) "Bank holding company" has the meaning set forth in 12
U.S.C. §1841(a)(1).
(c) "Bank supervisory agency" means:
(1) Any agency of another state with primary responsibility
for chartering and supervising banks; and
(2) The office of the comptroller of the currency, the
federal deposit insurance corporation, the board of governors of
the federal reserve system and any successor to these agencies.
(d) "Board of Banking and Financial Institutions" means the board created pursuant to the provisions of article three,
chapter thirty-one-a of this code and referred to herein as
"board".
(e) "Branch" or "branch bank" has the meaning set forth in
subsection (f), section two, article one of this chapter.
(f) "Commissioner" means the West Virginia commissioner of
banking then in office and, where appropriate, all of his or her
successors and predecessors in office.
(g) "Control" shall be construed consistently with the
provisions of 12 U.S.C. §1841(a)(2).
(h) "Home state" means:
(1) With respect to a state bank, the state by which the
bank is chartered;
(2) With respect to a national bank, the state in which the
main office of the bank is located;
(3) With respect to a foreign bank, the state determined to
be the home state of such foreign bank under 12 U.S.C. §3103(c).
(i) "Home state regulator" means, with respect to an out-of-
state state bank, the bank supervisory agency of the state in
which such bank is chartered.
(j) "Host state" means a state, other than the home state of
a bank, in which the bank maintains, or seeks to establish and
maintain a branch.
(k) "Insured depository institution" has the meaning set
forth in 12 U.S.C. §1813(c)(2) and (3).
(l) "Interstate merger transaction" means:
(1) The merger or consolidation of banks with different home
states, and the conversion of branches of any bank involved in
the merger or consolidation into branches of the resulting bank;
or
(2) The purchase of all or substantially all of the assets
(including all or substantially all of the branches) of a bank
whose home state is different from the home state of the
acquiring bank.
(m) "Out-of-state bank" means a bank whose home state is a
state other than West Virginia.
(n) "Out-of-state state bank" means a bank chartered under
the laws of any state other than West Virginia.
(o) "Resulting bank" means a bank that has resulted from an
interstate merger transaction under this article.
(p) "State" means any state of the United States, the
District of Columbia, any territory of the United States,
Puerto Rico, Guam, the Virgin Islands and American Samoa.
(q) "West Virginia bank" means a bank whose home state is
West Virginia.
(r) "West Virginia state bank" means a bank chartered under the laws of West Virginia.
§31A-8D-3. Authority of West Virginia state banks to establish
interstate branches by merger.
Beginning on the thirty-first day of May, one thousand nine
hundred ninety-seven, and with prior approval upon order of the
board, a West Virginia state bank may establish, maintain and
operate one or more branches in a state other than West Virginia
pursuant to an interstate merger transaction in which the West
Virginia state bank is the resulting bank. Not later than the
date on which the required application for the interstate merger
transaction is filed with the responsible federal bank
supervisory agency, the applicant West Virginia state bank shall
file an application on a form prescribed by the commissioner
together with a three thousand dollar application fee. The
applicant shall also comply with the applicable provisions of
section twelve, article eight of this chapter. If the board
finds that: (i) The proposed transaction will not be detrimental
to the safety and soundness of the applicant or the resulting
bank, including that local conditions assure reasonable promise
of successful operation of the proposed bank branch; (ii) any new
officers and directors of the resulting bank are qualified by
character, experience and financial responsibility to direct and
manage the resulting bank; (iii) the acquired branch offices of which will provide suitable physical facilities for their
intended business; (iv) establishment of the proposed branch bank
would not result in a substantial reduction of competition in any
section of this state unless the anticompetitive effects of the
proposed action are clearly outweighed in the public interest by
the probable effect of the action in meeting the convenience and
needs of the community to be served, or result in a monopoly, or
be in furtherance of any combination or conspiracy to monopolize,
or any attempt to monopolize the business of banking in any
section of this state; (v) the proposed merger is consistent with
the convenience and needs of the communities to be served by the
resulting bank in this state and is otherwise in the public
interest; and (vi) the new branch is in conformity with, and
would be permitted under the laws of the state where the branch
is to be located, it shall approve the interstate merger
transaction and the operation of branches outside of West
Virginia by the West Virginia state bank. The findings required
herein shall supplant any other findings of fact otherwise
required by subdivisions (1) through (6), subsection (j), section
twelve, article eight of this chapter. Such an interstate merger
transaction may be consummated only after the applicant has
received the board's written approval by entry of an order
granting the application.
§31A-8D-4. Interstate merger transactions and branching
involving out-of-state banks permitted.
(a) Beginning on the thirty-first day of May, one thousand
nine hundred ninety-seven, one or more West Virginia banks may
enter into an interstate merger transaction with one or more
out-of-state banks under this article, and an out-of-state bank
resulting from such transaction may maintain and operate the
branches and offices in West Virginia of a West Virginia bank
that participated in such transaction: Provided, That the
conditions and filing requirements of this article are met.
(b) A merger transaction shall not be permitted under this
article if, upon consummation of such transaction, the resulting
bank (including all insured depository institution affiliates of
the resulting bank) would assume sufficient additional deposits
to cause it to control deposits in this state in excess of that
allowed by section twelve-a, article two of this chapter:
Provided, That the commissioner may by rule adopt a procedure
whereby said acquisition deposit limitation as set forth in this
code may be waived for good cause shown. The commissioner shall
calculate the acquisition deposit limitation based upon the most
recently available reports containing such deposit information
filed with state or federal authorities.
(c) A merger transaction resulting in the acquisition by an out-of-state bank of a West Virginia state bank, or all or
substantially all of the branches of a West Virginia state bank,
or resulting in the acquisition by an out-of-state state bank of
a West Virginia bank or the change of control over a branch
operating in West Virginia, shall not be permitted under this
article unless: (i) The out-of-state bank confirms in writing to
the commissioner that as long as it maintains a branch in West
Virginia, it will comply with all applicable laws of this state,
including consumer protection laws; (ii) deposits of the
resulting bank in this state are insured in conformity with the
provisions of section six, article one of this chapter; and (iii)
the resulting bank, if state chartered, meets the capital
requirements set forth in section three, article four of this
chapter.
§31A-8D-5. Notice and filing requirements.
(a) Any out-of-state state bank that will be the resulting
bank pursuant to a merger transaction involving a West Virginia
bank, or will be the resulting bank pursuant to a merger
transaction affecting the change of control over a branch
operating in West Virginia shall notify the commissioner of the
proposed merger not later than the date on which it files an
application for the merger transaction with the responsible
federal bank supervisory agency, and shall submit a copy of that application to the commissioner and pay a filing fee of two
hundred fifty dollars.
(b) Any West Virginia state bank which is a party to an
interstate merger transaction shall comply with state law
governing shareholder rights and director and officer duties with
respect to affecting the merger and with other applicable state
and federal laws. In addition, the West Virginia state bank
shall give written notice to the commissioner at least forty-five
days before the effective date of a merger where the resulting
bank will be an out-of-state bank, unless a shorter period of
notice is required under applicable federal law.
(c) Unless preempted by federal law, the commissioner shall
have thirty days from receipt of the written notice under
subsection (a) of this section to object to the proposed
transaction and request a hearing before the board on the basis
that the transaction is contrary to applicable West Virginia law.
The failure to object within thirty days shall be construed as
consent by the commissioner, or, in his or her discretion, the
commissioner may, at any time, consent in writing. The
commissioner may also request a hearing on the basis that the
bank supervisory agency of the home state of the resulting out-
of-state bank is without authority or procedures under its
state's law to review the transaction, or is not under its state's law viewed as the primary regulator of its chartered
banks' out-of-state branches, in which event the criteria, fees
and procedures set forth in section three of this article shall
apply.
(d) Any out-of-state state bank which shall be the resulting
bank in such an interstate or other merger transaction shall
provide satisfactory evidence to the commissioner of compliance
with applicable requirements of West Virginia law requiring
foreign corporations to qualify to do business in West Virginia.
§31A-8D-6. Powers; additional branches.
(a) An out-of-state state bank which establishes and
maintains one or more branches in West Virginia under this
article may conduct any activities at such branch or branches
that are authorized under the laws of this state for West
Virginia state banks.
(b) A West Virginia state bank may conduct any activities at
any branch outside West Virginia that are expressly permissible
for a bank chartered by the host state where the branch is
located. Prior to commencing any such activities, the West
Virginia state bank shall give the commissioner forty-five days
advance notice of the intention to exercise any such powers which
are not permitted to West Virginia state banks in their
operations in this state under state law. This notice shall be made together with a filing providing a written summary with
details of the proposed action or program, along with legal
analysis for the authority to conduct the activities and how the
exercise of the authority will not impair the safety and
soundness of the bank and will be kept separate from its
operations within West Virginia. Unless, within thirty days
after receipt of the notice and filing, the commissioner objects
or requests a hearing on the matter before the board, the
exercise of the powers shall be deemed authorized. In the
discretion of the commissioner or the board, authorization of
such powers may be given in writing at any time.
(c) An out-of-state bank that has established or acquired a
branch in West Virginia under this article may establish or
acquire additional branches in West Virginia to the same extent
that any West Virginia bank may establish or acquire a branch in
West Virginia under applicable federal and state law. To the
extent that an out-of-state bank has already established or
acquired a branch in West Virginia and proposes to create
additional branches by merger with a West Virginia bank, the
provisions of this article govern the transaction.
§31A-8D-7. Examinations; periodic reports; cooperative
agreements; assessment of fees.
(a) To the extent consistent with subsection (c) of this section, the commissioner may make such examinations of any
branch established and maintained in this state pursuant to this
article by an out-of-state state bank as the commissioner may
deem necessary to determine whether the branch is being operated
in compliance with the laws of this state and in accordance with
safe and sound banking practices. The provisions of article two
of this chapter shall apply to such examinations.
(b) The commissioner may prescribe requirements for periodic
reports regarding any out-of-state bank that operates a branch in
West Virginia pursuant to this article. The required reports
shall be provided by such bank, or upon request of the
commissioner by the bank supervisory agency having primary
responsibility for such bank. Any reporting requirements
prescribed by the commissioner under this subsection shall be:
(i) Consistent with the reporting requirements applicable to West
Virginia state banks; and (ii) appropriate for the purpose of
enabling the commissioner to carry out his or her
responsibilities under this article. Unless the information is
filed by its bank holding company pursuant to subsection (a),
section seven, article eight-a of this chapter, an out-of-state
bank with a branch in West Virginia shall also file the
information required by said section within the time stated in
said section.
(c) The commissioner may enter into cooperative,
coordinating and information-sharing agreements with any other
bank supervisory agencies or any organization affiliated with or
representing one or more bank supervisory agencies with respect
to the periodic examination or other supervision of any branch in
West Virginia of an out-of-state state bank, or any branch of a
West Virginia state bank in any host state, and the commissioner
may accept such parties' reports of examination and reports of
investigation in lieu of conducting his or her own examinations
or investigations.
(d) The commissioner may enter into contracts with any bank
supervisory agency that has concurrent jurisdiction over a West
Virginia state bank or an out-of-state state bank operating a
branch in this state pursuant to this article to engage the
services of such agency's examiners at a reasonable rate of
compensation, or to provide the services of the commissioner's
examiners to such agency at a reasonable rate of compensation:
Provided, That any such contract shall be deemed excluded from
the requirements of article three, chapter five-a of this code.
(e) The commissioner may enter into joint examinations or
joint enforcement actions with other bank supervisory agencies
having concurrent jurisdiction over any branch in West Virginia
of an out-of-state state bank or any branch of a West Virginia state bank in any host state: Provided, That the commissioner
may at any time take such actions independently if the
commissioner deems such actions to be necessary or appropriate to
carry out his or her responsibilities under this article or to
ensure compliance with the laws of this state: Provided,
however, That, in the case of an out-of-state state bank, the
commissioner shall recognize the authority of the home state
regulator over corporate governance matters and the primary
responsibility of the home state regulator with respect to safety
and soundness matters.
(f) Each out-of-state state bank that maintains one or more
branches in this state may be assessed and, if assessed, shall
pay supervisory and examination fees in accordance with the laws
of this state and rules of the commissioner. Such fees may be
shared with other bank supervisory agencies or any organization
affiliated with or representing one or more bank supervisory
agencies in accordance with agreements between such parties and
the commissioner.
§31A-8D-8. Enforcement.
If the commissioner determines that a branch maintained by
an out-of-state state bank in this state is being operated in
violation of any provision of the laws of this state, or that
such branch is being operated in an unsafe and unsound manner, the commissioner shall have the authority to take all such
enforcement actions as he or she would be empowered to take if
the branch were a West Virginia state bank: Provided, That the
commissioner shall promptly give notice to the home state
regulator of each enforcement action taken against an out-of-
state state bank and, to the extent practicable, shall consult
and cooperate with the home state regulator in pursuing and
resolving said enforcement action.
§31A-8D-9. Rules and orders
.
The commissioner and board may promulgate such rules and
issue such orders as they determine to be necessary or
appropriate to implement the provisions of this article.
§31A-8D-10. Notice of subsequent merger.
An out-of-state state bank that has established and
maintains a branch in this state pursuant to this article, shall
give at least forty-five days' prior written notice (or, in the
case of an emergency transaction, such shorter notice as is
consistent with applicable state or federal law) to the
commissioner of any merger, consolidation or other transaction
that would cause a change of control with respect to such bank or
any bank holding company that controls such bank, with the result
that an application would be required to be filed pursuant to the
federal Change in Bank Control Act of 1978, as amended, 12 U.S.C. §1817(j), or the federal Bank Holding Company Act of 1956, as
amended, 12 U.S.C. §§1841 et seq., or any successor statutes
thereto. Notice under this section shall not obviate the need
the acquiring entity may have to file with the commissioner or
board pursuant to section five of this article, or section three,
article eight-a of this chapter.
§31-8D-11. Applicability to thrift institutions.
This article shall apply to interstate mergers involving
banks with any savings bank, savings and loan association or
other thrift institution maintaining federal deposit insurance
where the nonthrift bank survives the merger transaction.
ARTICLE 8E. INTERSTATE BRANCHING BY DE NOVO ENTRY AND
ACQUISITION OF BRANCHES.
§31A-8E-1. Legislative purpose.
It is the express intent of this article to permit
interstate branching under Sections 102 and 103 of the
Riegle-Neal Interstate Banking and Branching Efficiency Act of
1994, Public Law No. 103-328, in accordance with the provisions
set forth in this article and thereby permit interstate branch
banking through de novo entry or by acquisition of branches in
transactions not involving a whole bank merger or acquisition.
§31A-8E-2. Definitions.
As used in this article, unless a different meaning is
required by the context, the following words and phrases shall have the following meanings:
(a) "Acquisition of a branch" means the acquisition of a
branch located in a host state, without either engaging in an
"interstate merger transaction" as defined in article eight-d of
this chapter or acquiring all or substantially all of the assets
of another bank by merger or purchase.
(b) "Bank" has the meaning set forth in 12 U.S.C. §1813(h):
Provided, That the term "bank" shall not include any "foreign
bank" as defined in 12 U.S.C. §3101(7), except that such term
shall include any foreign bank organized under the laws of a
territory of the United States, Puerto Rico, Guam, American Samoa
or the Virgin Islands, the deposits of which are insured by the
federal deposit insurance corporation.
(c) "Bank holding company" has the meaning set forth in 12
U.S.C. §1841(a)(1).
(d) "Bank supervisory agency" means:
(1) Any agency of another state with primary responsibility
for chartering and supervising banks; and
(2) The office of the comptroller of the currency, the
federal deposit insurance corporation, the board of governors of
the federal reserve system and any successor to these agencies.
(e) "Board of banking and financial institutions" means the
board created pursuant to the provisions of article three of this chapter and referred to herein as "board".
(f) "Branch" has the meaning set forth in subsection (f),
section two, article one of this chapter.
(g) "Commissioner" means the West Virginia commissioner of
banking then in office and, where appropriate, all of his or her
successors and predecessors in office.
(h) "Control" shall be construed consistently with the
provisions of 12 U.S.C. §1841(a)(2).
(i) "De novo branch" means a branch of a bank located in a
host state which: (i) Is originally established by the bank as
a branch; and (ii) does not become a branch of the bank as a
result of: (A) The acquisition of another bank or a branch of
another bank; or (B) the merger, consolidation or conversion
involving any such bank or branch.
(j) "Home state" means:
(1) With respect to a state bank, the state by which the
bank is chartered;
(2) With respect to a national bank, the state in which the
main office of the bank is located; or
(3) With respect to a foreign bank, the state determined to
be the home state of such foreign bank under 12 U.S.C. §3103(c).
(k) "Home state regulator" means, with respect to an out-of-
state state bank, the bank supervisory agency of the state in which such bank is chartered.
(l) "Host state" means a state, other than the home state of
a bank, in which the bank maintains, or seeks to establish and
maintain, a branch.
(m) "Out-of-state bank" means a bank whose home state is a
state other than West Virginia.
(n) "Out-of-state state bank" means a bank chartered under
the laws of any state other than West Virginia.
(o) "State" means any state of the United States, the
District of Columbia, any territory of the United States,
Puerto Rico, Guam, the Virgin Islands and American Samoa.
(p) "West Virginia state bank" means a bank chartered under
the laws of West Virginia.
§31A-8E-3. Interstate branching by West Virginia state banks
through de novo establishment or acquisition of branches in
other states.
(a) Beginning on the thirty-first day of May, one thousand
nine hundred ninety-seven, and with the prior approval upon order
of the board, any West Virginia state bank may establish and
maintain a de novo branch or acquire a branch in a state other
than West Virginia.
(b) A West Virginia state bank desiring to establish and
maintain a branch in another state under this section shall file an application on a form prescribed by the commissioner and pay
the branch application fee set forth in subsection (h),section
twelve, article eight of this chapter. If the board finds that:
(i) The applicant has the financial and managerial resources
sufficient to undertake the proposed expansion without adversely
affecting its safety or soundness, including that local
conditions assure reasonable promise of successful operation of
the proposed bank branch; (ii) any new officers and directors
resulting from the creation of the branch bank are qualified by
character, experience and financial responsibility to direct and
manage the expanded bank; (iii) the proposed branch offices will
provide suitable physical facilities for their intended business;
(iv) establishment of the proposed branch bank would not result
in a substantial reduction of competition in any section of this
state unless the anticompetitive effects of the proposed action
are clearly outweighed in the public interest by the probable
effect of the action in meeting the convenience and needs of the
community to be served, or result in a monopoly, or would be in
furtherance of any combination or conspiracy to monopolize or to
attempt to monopolize the business of banking in any section of
this state; (v) the establishment of the proposed branch is
consistent with the convenience and needs of the communities to
be served by the branch and is otherwise in the public interest; and (vi) the new branch is in conformity with, and would be
permitted under the laws of the state where the branch is to be
located, it may approve the application. In acting on the
application, the board shall consider the views of the
appropriate bank supervisory agencies. The applicant bank may
establish the branch when it has received the board's written
approval by entry of an order granting the application. The
findings required herein shall supplant any other findings of
fact otherwise required by subdivisions (1) through (6),
subsection (j), section twelve, chapter thirty-one-a of this
code.
§31A-8E-4. Interstate branching by out-of-state banks through
de novo entry or acquisition of branches in West Virginia.
Beginning on the thirty-first day of May, one thousand nine
hundred ninety-seven, an out-of-state bank that does not operate
a branch in this state and that meets the requirements of this
article may establish and maintain a de novo branch in this
state, and may also establish and maintain a branch in this state
through the acquisition of a branch: Provided, That branches may
be so established in West Virginia by out-of-state banks only if
the laws of the home state of the out-of-state bank permit West
Virginia state banks to establish and maintain de novo branches
or to acquire and maintain branches, as applicable, under substantially the same terms and conditions as set forth in this
article. If the law of the other state restricts such entry by
a West Virginia state bank to that other state, then the board
may similarly limit the authority granted by this article for
banks having their main office located in that state.
§31A-8E-5. Requirement of notice.
An out-of-state bank desiring to establish and maintain a
de novo branch or to acquire a branch in this state pursuant to
this article shall provide written notice of the proposed
transaction to the commissioner not later than the date on which
the bank applies to the responsible federal or state bank
supervisory agency for approval to establish the branch. The
filing of such notice shall be accompanied by the filing fee of
two hundred fifty dollars.
§31A-8E-6. Conditions for approval.
No branch of an out-of-state bank may be established in this
state under this article, unless:
(a) The out-of-state bank confirms in writing to the
commissioner that as long as it maintains a branch in West
Virginia, it will comply with all applicable laws of this state,
including consumer protection laws and any acquisition deposit
limitations, as well as maintenance of deposit insurance and
capital requirements in the same manner as required for West Virginia state banks.
(b) The applicant provides satisfactory evidence to the
commissioner of compliance with the applicable requirements of
West Virginia law requiring foreign corporations to qualify to do
business in West Virginia.
(c) The commissioner, acting within thirty days after
receiving notice of an application under section five of this
article, or within seven days after a decision if a hearing is
held, certifies to the responsible federal bank supervisory
agency that the requirements of this article have been met.
Unless preempted by federal law, the commissioner shall have
thirty days from receipt of the written notice by the out-of-
state bank to object to the proposed transaction and request a
hearing before the board on the basis that the transaction is
contrary to applicable West Virginia law. The failure to object
within thirty days shall be construed as consent by the
commissioner, or, in his or her discretion, the commissioner may,
at any time, consent in writing. The commissioner may also
request a hearing on the basis that the bank supervisory agency
of the home state of the out-of-state bank is without authority
or procedures under its state's law to review the transaction, or
is not under its state's law viewed as the primary regulator of
its chartered banks' out-of-state branches, in which event the criteria, fees and procedures set forth in section three of this
article shall apply.
§31A-8E-7. Powers; additional branches.
(a) An out-of-state state bank which establishes and
maintains one or more branches in West Virginia under this
article may conduct any activities at such branch or branches
that are authorized under the laws of this state for West
Virginia state banks.
(b) A West Virginia state bank may conduct any activity at
a branch outside West Virginia that is expressly permissible for
a bank chartered by the host state where the branch is located.
Prior to commencing any such activity, the West Virginia state
bank shall give the commissioner forty-five days advance notice
of the intention to exercise any such powers which are not
permitted to West Virginia state banks in their operations in
this state under state law. This notice shall be made together
with a filing providing a written summary with details of the
proposed action or program, along with legal analysis for the
authority to conduct the activities and how the exercise of the
authority will not impair the safety and soundness of the bank
and will be kept separate from its operations within West
Virginia. Unless, within thirty days after receipt of the notice
and filing, the commissioner objects or requests a hearing on the matter before the board, the exercise of the powers shall be
deemed authorized. In the discretion of the commissioner or the
board, authorization of such powers may be given in writing at
any time.
(c) An out-of-state bank that has established or acquired a
branch in West Virginia under this article may establish or
acquire additional branches in West Virginia to the same extent
that any West Virginia bank may establish or acquire a branch in
West Virginia under applicable federal and state law. To the
extent that an out-of-state bank has already established or
acquired a branch in West Virginia and proposes to create
additional branches by establishing another de novo branch, or by
acquisition of another bank's branch in West Virginia, the
provisions of this article govern the transaction.
§31A-8E-8. Examinations; periodic reports; cooperative
agreements; assessment of fees.
(a) To the extent consistent with subsection (c) of this
section, the commissioner may make such examinations of any
branch established and maintained in this state pursuant to this
article by an out-of-state state bank as the commissioner may
deem necessary to determine whether the branch is being operated
in compliance with the laws of this state and in accordance with
safe and sound banking practices. The provisions of article two of this chapter shall apply to such examinations.
(b) The commissioner may require periodic reports regarding
any out-of-state bank that has established and maintained a
branch in this state pursuant to this article. The required
reports shall be provided by the bank, or upon request of the
commissioner by the bank supervisory agency having primary
responsibility for such bank. Any reporting requirements
prescribed by the commissioner under this subsection shall be:
(i) Consistent with the reporting requirements applicable to West
Virginia state banks; and (ii) appropriate for the purpose of
enabling the commissioner to carry out his or her
responsibilities under this article. Unless the information is
filed by its bank holding company pursuant to subsection (a),
section seven, article eight-a of this chapter, an out-of-state
bank with a branch in West Virginia shall also file the
information required by said section within the time stated in
said section.
(c) The commissioner may enter into cooperative,
coordinating and information-sharing agreements with any other
bank supervisory agencies or any organization affiliated with or
representing one or more bank supervisory agencies with respect
to the periodic examination or other supervision of any branch in
West Virginia of an out-of-state state bank, or any branch of a West Virginia state bank in any host state, and the commissioner
may accept such parties' reports of examination and reports of
investigation in lieu of conducting his or her own examinations
or investigations.
(d) The commissioner may enter into contracts with any bank
supervisory agency that has concurrent jurisdiction over a West
Virginia state bank or an out-of-state state bank maintaining a
branch in this state to engage the services of such agency's
examiners at a reasonable rate of compensation, or to provide the
services of the commissioner's examiners to such agency at a
reasonable rate of compensation: Provided, That any such
contract shall be deemed excluded from the requirements of
article three, chapter five-a of this code.
(e) The commissioner may enter into joint examinations or
joint enforcement actions with other bank supervisory agencies
having concurrent jurisdiction over any branch established and
maintained in West Virginia by an out-of-state state bank or any
branch established and maintained by a West Virginia state bank
in any host state: Provided, That the commissioner may at any
time take such actions independently if the commissioner deems
such actions to be necessary or appropriate to carry out his or
her responsibilities under this article or to ensure compliance
with the laws of this state: Provided, however, That, in the case of an out-of-state state bank, the commissioner shall
recognize the authority of the home state regulator over
corporate governance matters and the primary responsibility of
the home state regulator with respect to safety and soundness
matters.
(f) Each out-of-state state bank that maintains one or more
branches in this state may be assessed and, if assessed, shall
pay supervisory and examination fees in accordance with the laws
of this state and rules of the commissioner. Such fees may be
shared with other bank supervisory agencies or any organization
affiliated with or representing one or more bank supervisory
agencies in accordance with agreements between such parties and
the commissioner.
§31A-8E-9. Enforcement.
If the commissioner determines that a branch maintained by
an out-of-state state bank in this state is being operated in
violation of any provision of the laws of this state, or that
such branch is being operated in an unsafe and unsound manner,
the commissioner shall have the authority to take all such
enforcement actions as he or she would be empowered to take if
the branch were a West Virginia state bank: Provided, That the
commissioner shall promptly give notice to the home state
regulator of each enforcement action taken against an out-of-state state bank and, to the extent practicable, shall consult
and cooperate with the home state regulator in pursuing and
resolving said enforcement action.
§31A-8E-10. Rules and orders.
The commissioner and board may promulgate such rules and
issue such orders as they determine to be necessary or
appropriate in order to implement the provisions of this article.
§31A-8E-11. Notice of subsequent merger.
An out-of-state state bank that has established and
maintains a branch in this state pursuant to this article, shall
give at least forty-five days' prior written notice (or, in the
case of an emergency transaction, such shorter notice as is
consistent with applicable state or federal law) to the
commissioner of any merger, consolidation or other transaction
that would cause a change of control with respect to such out-of-
state bank or any bank holding company that controls such bank,
with the result that an application would be required to be filed
pursuant to the federal Change in Bank Control Act of 1978, as
amended, 12 U.S.C. §1817(j), or the federal Bank Holding Company
Act of 1956, as amended, 12 U.S.C. §§1841 et seq., or any
successor statutes thereto.
§31A-8E-12. Applicability to thrift institutions.
This article shall apply to interstate acquisition of branches of any savings bank, savings and loan association or
other thrift institution maintaining federal deposit insurance by
a bank where the nonthrift bank survives the transaction and
maintains the branches.
ARTICLE 8F. THE WEST VIRGINIA INTERNATIONAL BANKING ACT.
§31A-8F-1. Legislative purpose.
(a) This article shall be known and may be cited as the
"West Virginia International Banking Act".
(b) This article is intended generally to provide for state
regulation of the participation by foreign banks in certain
financial markets of this state.
(c) This article is intended:
(1) To authorize banking activities and operations in West
Virginia by foreign banks having separately capitalized and
domestically chartered banks in the United States through
branches of such domestic banks in this state;
(2) To authorize agency and representative offices in this
state of foreign banks; and
(3) To ensure that the banking laws and rules of this state
otherwise apply to foreign banks, and to West Virginia and out-
of-state banks and bank holding companies that are owned or
controlled by foreign banks, in a manner consistent with the laws
and policies of the United States governing the operations in this country of foreign banks.
§31A-8F-2. Definitions.
For purposes of this article:
(a) The term "agency office" or "direct agency office" means
an office of a foreign bank that is exercising the powers set
forth and authorized by sections seven and eleven of this
article.
(b) The term "bank supervisory agency" means:
(1) The office of the comptroller of the currency, the
federal deposit insurance corporation, the board of governors of
the federal reserve system and any successor to these agencies;
(2) Any agency of another state with primary responsibility
for chartering and supervising banks; and
(3) Any agency of a country (including any colonies,
dependencies, possessions or political subdivisions thereof)
other than the United States with primary responsibility for
supervising banks.
(c) The term "federal agency" means an agency of a foreign
bank that is licensed by the comptroller of the currency pursuant
to the provisions of Section 4 of the federal International
Banking Act, 12 U.S.C. §3102.
(d) The term "foreign bank" means any company organized
under the laws of a foreign country that engages directly in the business of banking. The term includes foreign commercial banks,
foreign merchant banks and other foreign institutions that engage
in banking activities usually in connection with the business of
banking in the countries where such foreign institutions are
organized or operating.
(e) The term "federal branch" means a branch of a foreign
bank that is licensed by the comptroller of the currency pursuant
to the provisions of Section 4 of the federal International
Banking Act, 12 U.S.C. §3102.
(f) The term "federal International Banking Act" means the
federal International Banking Act of 1978, as amended, 12 U.S.C.
§§3101 et seq.
(g) The term "foreign person" means a natural or juridical
person who is a citizen or national of one or more countries
(including any colonies, dependencies or possessions of such
countries) other than the United States.
(h) The term "Interstate Banking and Branching Efficiency
Act" means the federal Riegle-Neal Interstate Banking and
Branching Efficiency Act of 1994, Public Law No. 103-328, 108
Stat. 2338-2381 (September 29, 1994)(codified at various sections
of Title 12, U. S. C.).
(i) The term "interstate branch" means a branch of a bank or
a branch of a foreign bank, as the context may require, which is established after the twenty-ninth day of September, one thousand
nine hundred ninety-four, pursuant to the authority contained in
the Interstate Banking and Branching Efficiency Act, outside the
home state of the bank or foreign bank. In the case of a foreign
bank, the term shall not include a limited branch.
(j) The term "limited branch" means a branch of a foreign
bank that accepts only such deposits as would be permissible for
a corporation organized under Section 25a of the federal Reserve
Act in accordance with the provisions of Section 5 (a)(7) of the
federal International Banking Act, 12 U.S.C. §3103(a)(7).
(k) The term "out-of-state bank" means a bank organized
under the laws of the United States having its main office in a
state other than West Virginia or organized under the laws of a
state other than West Virginia, which is authorized to engage in
the business of banking including the taking of insured retail
deposits. For purposes of this definition "state" shall include
the District of Columbia and any territory of the United States,
Puerto Rico, Guam, the Virgin Islands and America Samoa.
(l) The term "representative office" shall have the same
meaning as is set forth in Section 1(b)(15) of the federal
International Banking Act, 12 U.S.C. §3101(15), and the term
"West Virginia representative office" shall mean any such office
that is located in this state.
§31A-8F-3. General regulation authority; language; U.S. general
accounting principles.
(a) The commissioner is authorized and empowered to issue
such rules and orders to perform his or her duties and functions
under this article and to administer and carry out the provisions
and purposes of this article and to prevent evasions thereof.
(b) It shall be required that all banks, including foreign
banks, operating offices in this state use or make available on
request the English language version of any customer contract or
agreement when the customer is a United States corporation,
citizen or resident. Upon demand of the commissioner of banking
any bank or financial affiliate in West Virginia under the
jurisdiction of the commissioner of banking shall provide at
their own expense the translation of any document or record it
holds into the English language. Unless otherwise provided for
West Virginia licensed domestic banking institutions, all foreign
banking offices licensed under the provisions of this article
shall abide by U.S. general accounting principles in the
maintenance of their financial records.
§31A-8F-4. Operations in this state of banks owned or controlled
by foreign banks and other foreign persons.
(a) The laws and rules of this state governing the
acquisition or ownership of controlling or other interests in
West Virginia banks or in out-of-state banks seeking to establish and maintain one or more interstate branches in this state shall
not generally prohibit ownership of such institutions by, or
otherwise discriminate against, foreign banks or other foreign
persons.
(b) Notwithstanding the provisions of subsection (a) of this
section, the commissioner is authorized to apply any standards or
requirements of the laws and rules of this state governing the
ownership, control or operations of West Virginia banks,
including residency requirements for directors of West Virginia
state-chartered banks, even if applicable specifically or
exclusively to foreign banks or other foreign persons, to the
extent such standards or requirements are determined by the
commissioner to be either:
(1) Substantially equivalent to, or consistent with, the
standards or requirements governing the ownership, control or
operations of state or national banks in West Virginia by foreign
banks or other foreign persons under applicable United States
federal laws or regulations; or
(2) Otherwise consistent with the laws and policies of the
United States, including its international agreements governing
financial services.
§31A-8F-5. Branches by domestic subsidiary banks owned by a
foreign bank.
An out-of-state bank which is a domestic subsidiary of, or
controlled by a foreign bank, may establish branches in this
state through merger, de novo entry or the acquisition of
branches on the same terms as any other bank sharing that same
home state pursuant to articles eight-d and eight-e of this
chapter.
§31A-8F-6. Authority of affiliated bank or branch to act as
agent for a foreign bank.
(a) A West Virginia bank or branch of any out-of-state bank
owned or controlled by a foreign bank may at its main or branch
offices in West Virginia receive deposits, renew time deposits,
close loans, service loans and receive payments on loans and
other obligations as an agent for any depository institution
affiliate of such foreign bank, including branch, agency and
other offices of that same foreign bank located in other states,
generally in accordance with the same terms, conditions,
procedures and requirements that are applicable under the laws
and rules of this state to such agency activities that may be
conducted by West Virginia state banks.
(b) Notwithstanding any other provision of the laws or rules
of this state no foreign controlled bank, branch or agency office
shall be authorized by this article to accept retail deposits on
behalf of a foreign bank or branch which is not authorized to take federally insured deposits, nor to act as agent on behalf of
any affiliated foreign bank other than its controlling foreign
bank or one which has been licensed to transact business in this
state pursuant to this article.
(c) A bank or branch of any bank owned or controlled by a
foreign bank may not at its main or branch offices in West
Virginia:
(1) Conduct any activity as an agent under this section
which such office is prohibited from conducting as a principal
under any applicable federal or state law, including, but not
limited to, the acceptance of impermissible deposits; or
(2) As a principal, have an agent conduct any activity under
this section which such office is prohibited from conducting
under any applicable federal or state law, including but not
limited to the acceptance of impermissible deposits.
(d) Any agency relationship permitted under this section
involving a depository institution affiliate or other affiliate
of such foreign bank shall in any event be on terms that are
consistent with safe and sound banking practices and all
applicable rules and orders of the commissioner.
§31A-8F-7. Direct agency offices of foreign banks; necessity of
licensure.
(a) A foreign bank may directly transact certain banking business in this state as permitted under this article upon
obtaining a license to establish and maintain a West Virginia
state agency office.
(b) Subsection (a) of this section does not prohibit:
(1) Any foreign bank which establishes and maintains a
federal agency or federal branch in this state from transacting
at such federal agency or federal branch such banking business as
it may be authorized to transact under applicable federal laws
and rules; or
(2) Any foreign bank which does not maintain a branch or
agency office in West Virginia from making or enforcing loans in
this state including loans secured by liens on real or personal
property located in this state, as long as such lending is not
conducted from an office in this state, and the loan, if a
consumer loan, is governed by West Virginia law.
§31A-8F-8. Application to establish and maintain an agency
office; contents.
A foreign bank seeking to establish and maintain a West
Virginia state agency office shall submit an application to the
West Virginia board of banking and financial institutions. Such
application shall contain:
(a) The same information as required by the board of
governors of the federal reserve system for an application to establish an agency in the United States;
(b) An instrument irrevocably appointing the West Virginia
secretary of state or his or her successors in office to be such
foreign bank's agent, representative and attorney to receive
service of any lawful judicial and administrative process; and
(c) Such additional information as the board or commissioner
may require.
§31A-8F-9. Application to establish and maintain an agency
office; manner of filing and determination.
(a) A foreign bank making an application under this article
for a license to establish and maintain a West Virginia state
agency shall deliver to the West Virginia board of banking and
financial institutions:
(1) At least two duplicate originals of the foreign bank's
application on the form prescribed by the board;
(2) At least two copies of its charter or articles of
incorporation and all amendments thereto, duly authenticated by
the proper officer of the country of such foreign bank's
organization together with translation of such documents if they
are in a language other than English, which translation is
attested to for accuracy before a notary public or other
verifying official;
(3) A letter or resolution from its governing body or chief executive officer guaranteeing that the foreign bank's entire
capital and surplus is and shall be available for all liabilities
and obligations of its agency office doing business in this
state;
(4) An application fee of one thousand dollars payable by
check or money order to the West Virginia board of banking and
financial institutions;
(5) A document granting power of attorney in favor of the
person designated to be in charge of the business and affairs of
the proposed office; and
(6) Proof of fidelity bond coverage for active officers and
employees, and the oath of the managing officer of the West
Virginia office(s) to obey state banking laws as would be
required were the institution a bank incorporated in this state.
(b) The board may approve issuance of a license to a foreign
bank to establish and maintain a West Virginia state agency
office if it finds:
(1) That the foreign bank is of sound financial standing;
(2) That the management of the foreign bank and the proposed
management of the West Virginia state agency office are adequate
and are of good reputation and character;
(3) That the convenience and needs of persons to be served
by the proposed West Virginia state agency office will be promoted;
(4) That the foreign bank has committed to allocate and
assign to its agency office within this state a capital
equivalency deposit of not less than the greater of five hundred
thousand dollars or five percent of the total liabilities of the
agency, excluding accrued expenses, intercompany liabilities and
any amounts due the foreign bank: Provided, That the board may
in its discretion require a higher deposit amount or rate to
ensure the agency office's financial safety or soundness;
(5) That the proposed office is not being formed for other
than legitimate motives and purposes;
(6) That the bank supervisory agency of the foreign bank's
country of organization does not object to the application;
(7) That the applicant has submitted a legal opinion
indicating that the proposed agency office will be permissible
under both the laws of the foreign bank's country of organization
and the United States; and
(8) That the foreign bank has complied with this section and
satisfies such other standards as the board may establish by
rule.
(c) If the board after investigation, notice and hearing
determines to issue a license to a foreign bank to establish and
maintain a West Virginia state agency office, it shall issue a written order granting the application and authorize the
commissioner of banking on its behalf upon payment of all fees
required under this article to:
(1) Endorse on each document filed as part of the
application the word "Filed", and the date of the filing thereof
and return to the foreign bank a copy of each document so
endorsed;
(2) File in the office of the commissioner of banking one of
the duplicate originals of the application and copies of the
charter or articles of incorporation and amendments thereto; and
(3) Issue a license to establish and maintain a West
Virginia state agency office to such foreign bank.
(d) Each license issued to a foreign bank to establish and
maintain a West Virginia state agency shall state fully the name
of the foreign bank to which such license is issued, the place of
business for the licensee's office and all such other information
as the commissioner may require.
(e) The board may, by rule or order, prescribe abbreviated
application procedures and standards applicable to applications
by foreign banks that have already established an initial West
Virginia state agency office, subsequently to establish
additional intrastate West Virginia state agency offices, as the
case may be.
(f) Each licensee must register with the West Virginia
secretary of state as a foreign corporation qualified to do
business in this state and provide proof of such registration to
the commissioner of banking prior to conducting business under
its license.
§31A-8F-10. No concurrent maintenance of federal branches or
agencies.
(a) No foreign bank which is licensed under this article to
establish and maintain a West Virginia state agency shall
concurrently maintain a federal branch or federal agency office
in this state.
(b) No foreign bank which maintains a federal branch or
federal agency office in this state shall concurrently be
licensed under this article to maintain a West Virginia state
agency office.
§31A-8F-11. Powers of a foreign bank agency office.
(a) A West Virginia state agency office of a foreign bank
established under this article may engage in the business of
making loans and guaranteeing obligations for the financing of
the international movement of goods and services and for all
operational needs including working capital and short-term
operating needs and for the acquisition of fixed assets. In
addition, such agency may also:
(1) Borrow funds from banks and other financial
institutions;
(2) Buy and sell foreign exchange;
(3) Receive checks, bills, drafts, acceptances, notes,
bonds, coupons and other securities for collection abroad and
collect such instruments in the United States for customers
abroad;
(4) Hold securities for safekeeping for, or buy and sell
securities upon the order and for the risk of, customers abroad;
(5) Act as paying agent for securities issued by foreign
governments or other organizations organized under foreign law
and not qualified under the laws of the United States, or any
state or the District of Columbia to do business in the United
States;
(6) In order to prevent the loss on debts previously
contracted, an agency may acquire shares in a corporation:
Provided, That the shares are disposed of as soon as practicable,
but in no event later than two years from the date of
acquisition;
(7) Issue letters of credit and create acceptances; and
(8) Conduct activities which are necessary and incidental to
the above-enumerated power: Provided, That the commissioner
maintains the authority to determine whether the power or activity sought or undertaken is necessary and incidental.
(b) No West Virginia state agency office may take deposits
on behalf of any affiliated bank or other depository institution.
(c) Any loan limitation or restriction based on the capital
stock and surplus of a bank shall be deemed to refer, as applied
to a West Virginia state agency, to the United States dollar
equivalent of the capital and stock surplus of the parent foreign
bank, and not to the capital equivalency deposit in section
twenty-eight of this article.
§31A-8F-12. Representative office of foreign banks; necessity
of licensure.
(a) No foreign bank shall establish or maintain a West
Virginia state representative office unless the foreign bank is
licensed by the commissioner to maintain a West Virginia
representative office.
(b) Nothing in subsection (a) of this section shall be
deemed to prohibit a foreign bank which maintains a federal
agency or federal branch in this state from establishing or
maintaining one or more West Virginia representative offices.
§31A-8F-13. Representative office; application.
(a) The application for a license to establish and maintain
a West Virginia representative office shall be in writing under
oath and shall be in such form and contain such information as the commissioner may require by regulation or order. The
application shall be accompanied by a fee of two hundred fifty
dollars.
(b) Each application to establish and maintain a West
Virginia representative office shall include an instrument
irrevocably appointing the West Virginia secretary of state or
his or her successors in office to be such foreign bank's agent,
representative and attorney to receive service of any lawful
judicial and administrative process.
§31A-8F-14. Representative office; factors for approval of
application.
(a) A foreign bank making an application for a license to
establish and maintain a West Virginia representative office
shall deliver to the commissioner two (or more as the
commissioner may require in writing) duplicate originals of the
foreign bank's application.
(b) The commissioner may issue a license to a foreign bank
to establish and maintain a West Virginia representative office
if he or she finds:
(1) That the foreign bank is of sound financial standing;
(2) That the management of the foreign bank and the proposed
management of the West Virginia representative office are
adequate and are of good reputation and character;
(3) That the proposed office is not being formed for other
than legitimate motives and purposes; and
(4) That the convenience and needs of persons to be served
by the proposed West Virginia representative office will be
promoted.
(c) If the commissioner determines to issue a license to a
foreign bank to establish and maintain a West Virginia
representative office, he or she shall, when all fees have been
paid as required under this article:
(1) Endorse on each duplicate original of the application
the word "Filed", and the date of the filing thereof and return
to the foreign bank one such duplicate original so endorsed;
(2) File in his or her office one of such duplicate
originals of the application; and
(3) Issue a license to establish and maintain a West
Virginia representative office to such foreign bank.
(d) Each license issued to a foreign bank to establish and
maintain a West Virginia representative office shall state fully
the name of the foreign bank to which such license is issued, the
address or addresses at which the West Virginia representative
office is to be located and all other information as the
commissioner may require.
§31A-8F-15. Representative office; permissible activities.
(a) A foreign bank which is licensed to establish and
maintain a West Virginia representative office may, subject to
such rules as the commissioner may prescribe, engage in the
following activities:
(1) Solicitation for loans and in connection therewith the
assembling of credit information, making of property inspections
and appraisals, securing of title information, preparing of
applications for loans including making recommendations with
respect to action thereon, solicitating of investors to purchase
loans from the foreign bank and searching for such investors to
contract with the foreign bank for servicing of such loans;
(2) The solicitation of new business;
(3) The conduct of research; and
(4) Back office administrative functions as may be more
specifically defined in rules issued by the commissioner.
(b) Any other activity which the foreign bank seeks to
conduct at such office shall be subject to the prior written
approval of the commissioner upon finding that the character of
such other business is such that the granting of the authority
would not facilitate evasions of this article or chapter or the
rules or orders lawfully made hereunder.
§31A-8F-16. Posting of license.
Each foreign bank which is licensed to establish and maintain a West Virginia state agency or West Virginia
representative office shall post its license in a conspicuous
place at the office.
§31A-8F-17. Licenses not transferable.
No license issued by the commissioner in accordance with
this article shall be transferable or assignable.
§31A-8F-18. Amended license to establish and maintain a direct
agency office or representative office.
(a) A foreign bank which is licensed to establish and
maintain a West Virginia state agency or West Virginia
representative office must secure an amended license if it
changes its corporate name, changes corporate control, changes
the duration of its corporate existence or desires to pursue in
this state other or additional purposes than those set forth in
its prior application under this article for a license, by making
application therefor to the commissioner.
(b) The requirements with respect to the form and contents
of an application under subsection (a) of this section, the
manner of its execution, the filing of duplicate originals
thereof with the commissioner, the issuance of an amended license
and the effect thereof shall be the same as in the case of an
initial application for a license to establish and maintain a
West Virginia state agency or West Virginia representative office, except as may be provided by the commissioner in the case
of a change of control which results merely from a corporate
reorganization.
§31A-8F-19. Change of control of foreign bank.
A foreign bank which is licensed to establish and maintain
a West Virginia state agency or West Virginia representative
office shall file with the commissioner a written notice and
request an amended license under section eighteen of this article
no later than fourteen calendar days after the foreign bank
becomes aware of any acquisition of control of the foreign bank
or the bank merges with another foreign or domestic bank.
§31A-8F-20. Relocation of office; written notice necessary.
No foreign bank which is licensed to establish and maintain
a West Virginia state agency or West Virginia representative
office shall relocate any office unless the foreign bank provides
prior written notice to the commissioner and the commissioner has
approved such relocation in writing.
§31A-8F-21. Examination; payment of fees.
(a) A West Virginia state agency or West Virginia
representative office shall be subject to examination by the
commissioner at intervals and in a manner as he or she shall
establish by rule or order. Unless otherwise provided by rule or
order the examinations may be conducted annually.
(b) In conducting an examination pursuant to this section,
the commissioner shall:
(1) Have full access to the offices, books, accounts and
records of each office located in this state as well as all of
the books, accounts and records maintained in this state of any
office not located in this state of such foreign bank; and
(2) Have authority to require the attendance of and to
examine under oath all persons whose testimony may be required
relative to the activities of such office.
(c) A foreign bank which is licensed to establish and
maintain a West Virginia state agency or West Virginia
representative office shall be assessed a reasonable fee for the
expenses incurred by the commissioner in making an examination of
the office.
(d) A foreign bank which is licensed to establish and
maintain a West Virginia state agency or West Virginia
representative office shall be subject to all reasonable fees and
expenses in such amounts as the commissioner may require by rule
or order.
(e) The commissioner may require a West Virginia state
agency or West Virginia representative office to be audited by an
independent accountant licensed to practice by the state of West
Virginia. The accountant must have knowledge and experience with respect to auditing books of international corporations. The
audit must be based on generally accepted accounting standards
without limitation on its scope. The cost of the audits must be
paid by the foreign bank.
§31A-8F-22. Supervision and enforcement.
(a) The commissioner shall have all of the powers granted to
him or her by the laws of this state to the extent appropriate to
enable him or her to supervise each West Virginia state agency or
West Virginia representative office.
(b) If, after notice and a hearing, the commissioner finds
that any person has violated any provision of this article or any
regulation or order issued under this article, he or she may, in
addition to any other remedy or action available to the
commissioner under the laws of this state, seek a civil penalty
in an amount in accordance with this chapter and rules
thereunder.
(c) In order to carry out the purposes under this article,
the commissioner may:
(1) Enter into cooperative, coordinating or information-
sharing agreements with any other bank supervisory agency or any
organization affiliated or representing one or more bank
supervisory agencies;
(2) With respect to periodic examination or other supervision of a foreign bank that maintains a West Virginia
state agency or West Virginia representative office, accept
reports of examinations performed by, and reports submitted to,
other bank supervisory agencies in lieu of conducting
examinations, or of receiving reports, as might otherwise be
required under this article;
(3) Enter into joint examinations or joint enforcement
actions with any other bank supervisory agency having concurrent
jurisdiction over any foreign bank: Provided, That the
commissioner may at any time take any actions independently if
the commissioner determines that the actions are necessary or
appropriate to carry out his or her responsibilities under this
article and to ensure compliance with the laws of this state;
(4) Enter into contracts with any bank supervisory agency
having concurrent regulatory or supervisory jurisdiction over a
foreign bank maintaining a West Virginia state agency or West
Virginia representative office, to engage the services of such
agency's examiners at a reasonable rate of compensation or
provide the services of the commissioner's examiners at a
reasonable rate of compensation: Provided, That any such
contract shall be deemed excluded from the requirements of
article three, chapter five-a of this code; and
(5) Assess supervisory and examination fees that shall be payable by foreign banks maintaining a West Virginia state agency
or West Virginia representative office in connection with the
commissioner's performance of his or her duties under this
article and in accordance with rules adopted by the commissioner.
(d) Supervisory or examination fees assessed by the
commissioner in accordance with the provisions of this article
may be shared with other bank supervisory agencies or any
organizations affiliated with or representing one or more bank
supervisory agencies in accordance with agreements between the
commissioner and such agencies or organizations.
§31A-8F-23. Reports.
(a) Each foreign bank which is licensed to establish and
maintain a West Virginia state agency or West Virginia
representative office shall file with the commissioner such
reports as and when the commissioner may require.
(b) Each report filed with the commissioner under this
article or any rule or order issued under this article shall be
in such form and contain such information, shall be signed in
such manner, and shall be verified in such manner, as the
commissioner may reasonably require.
§31A-8F-24. Confidentiality of examination reports.
All reports of examinations and other records relating to
the financial condition of any foreign bank, branch, agency office or representative office shall be confidential and subject
to subpoena in the same manner as those examinations and records
of other financial institutions pursuant to section four, article
two of this chapter.
§31A-8F-25. Books, accounts and records.
Each foreign bank which is licensed to establish and
maintain a West Virginia state agency or West Virginia
representative office shall maintain or make available at any
such office appropriate books, accounts and records in the
English language reflecting: (i) All transactions effected by or
on behalf of such office; and (ii) all actions taken in this
state by employees of the foreign banking corporation located in
this state to effect transactions on behalf of any office of the
foreign bank located outside this state.
§31A-8F-26. Separate assets.
(a) Each foreign bank which is licensed to establish and
maintain a West Virginia state agency in this state shall keep
the assets of its business in this state separate and apart from
the assets of its business outside this state as though the West
Virginia office was conducted as a separate and distinct entity.
(b) The creditors of a foreign bank arising out of
transactions with, and recorded on the books of, its West
Virginia state agency shall be entitled to absolute preference and priority over the creditors of the foreign bank's offices
located outside this state with respect to the assets of the
foreign bank in this state.
§31A-8F-27. Disclosure of lack of federal deposit insurance.
Each foreign bank which is licensed to establish and
maintain a West Virginia state agency shall clearly and
conspicuously disclose that moneys held by or credit balances in
such office are not insured by the federal deposit insurance
corporation.
§31A-8F-28. Capital equivalency deposit.
(a) Each foreign bank which is licensed to establish and
maintain a West Virginia state agency office shall keep on
deposit with an unaffiliated West Virginia bank(s) as the foreign
bank may designate and the commissioner may approve, the capital
equivalency deposit required by section nine of this article in
the form of interest-bearing stocks and bonds, notes, debentures
or other obligations of the United States or any agency or
instrumentality thereof, or guaranteed by the United States, or
of this state, or of a city, county, town, village, school
district, or instrumentality of this state or guaranteed by this
state, or dollar deposits or obligations of the international
bank for reconstruction and development, or obligations issued by
the interAmerican development bank, or obligations of the Asian development bank, or obligations issued by the African
development bank, or other assets as the commissioner may by rule
or order permit, based upon principal amount or market value,
whichever is lower, in the case of the above-described
securities, and subject to the limitations as he or she shall
prescribe.
(b) The West Virginia bank designated to hold the assets in
deposit shall issue a written receipt addressed and delivered to
the commissioner reciting that the deposit is being held for the
sole benefit of the United States domiciled creditors of the
foreign bank's West Virginia state agency office and that the
deposit is subject to the commissioner's order without offset for
the payment of the creditors. For the purpose of this
subsection, the term "creditor" shall not include any other
offices, branches, subsidiaries or affiliates of the foreign
bank.
(c) So long as it shall continue business in the ordinary
course, such foreign bank shall be permitted to collect interest
on the securities deposited under this section and from time to
time exchange, examine and compare such securities.
(d) The commissioner in his or her discretion may require
additional capital equivalency deposits if: (i) The financial
condition of either the office(s) or the foreign bank warrants such additional protection; or (ii) other circumstances exist
which may impair the office(s) or foreign bank's safety or
soundness.
(e) West Virginia state agency offices must maintain a
capital equivalency ledger showing the amount of net liabilities
requiring capital equivalency coverage for each business day. On
the last day of business of each month the average daily balance
shall be computed, and based upon this computation, an increase
in the deposit, if necessary to maintain the deposit at the level
required by this section, shall be made. Any such required
increase must be made within the first two business days of the
following month. For foreign banks having more than one agency
office in this state, the deposit required shall be determined on
an aggregate basis for all such agency offices in this state. If
securities comprise all or part of the deposit, and interest rate
changes or a decline in credit quality of the security results in
the depreciation of its market value, the security shall be
replaced with an instrument that qualifies under subsection (a)
of this section or other appropriate action shall be taken to
ensure the capital equivalency deposit is adequately maintained.
§31A-8F-29. Voluntary closure of agency or representative
office; application.
(a) No foreign bank which is licensed to establish and maintain a West Virginia state agency or West Virginia
representative office shall close the office without filing an
application with, and obtaining the prior approval of, the
commissioner. The failure of an agency or representative office
to remain open to the public for business at least six hours per
day four days per week (excluding legal holidays) shall, unless
previous approval for lesser hours has been granted by the
commissioner, constitute a closing, and may result in a
suspension or revocation of license.
(b) If the commissioner finds, with respect to an
application by a foreign bank under this section, that the
closing of the office will not be substantially detrimental to
the public convenience and advantage, the commissioner shall
approve the application. If the commissioner finds otherwise, he
or she shall deny the application.
(c) Whenever an application by a foreign bank under this
section has been approved and all conditions precedent to the
closing have been fulfilled, such foreign bank may close the
office and shall promptly thereafter surrender to the
commissioner the license which authorized the foreign bank to
maintain the office.
CHAPTER 44. ADMINISTRATION OF ESTATES AND TRUSTS.
ARTICLE 5. GENERAL PROVISIONS AS TO FIDUCIARIES.
§44-5-3. Appointment of nonresident; bond; service of notice and
process; fees; penalty.
(a) Notwithstanding any other provision of law, no
individual who is a nonresident of this state, nor any
nonresident banking institution which does not maintain a main
office or branch office within this state nor any corporation
having its principal office or place of business outside this
state, may be appointed or act as executor, administrator,
curator, testamentary guardian, guardian or committee conservator
in this state, except that:
(1) An individual who is a nonresident of this state may be
appointed ancillary administrator of a nonresident decedent's
assets situate in this state if such nonresident individual is
lawfully acting as executor in said decedent's state of domicile
and submits letters of probate authenticated by the probate
authorities of the decedent's state of domicile to the clerk of
the county commission of any county of this state wherein
ancillary administration is sought;
(2) An individual who is a nonresident of this state may be
appointed ancillary administrator of a nonresident decedent's
assets situate in this state if such nonresident individual is
acting as administrator in said decedent's state of domicile and
submits letters of administration authenticated by the probate authorities of the decedent's state of domicile to the clerk of
the county commission of any county of this state wherein
ancillary administration is sought;
(3) An individual who is a nonresident of this state may be
appointed and act as testamentary guardian of a nonresident
infant and thereby exercise dominion and control over such
nonresident infant's assets situate in this state upon submission
of authenticated documentation that such nonresident testamentary
guardian was so appointed at the place of domicile of the
nonresident infant. Such authenticated documentation shall be
submitted to the clerk of the county commission of any county of
this state wherein assets belonging to such nonresident infant
are situate;
(4) An individual who is a nonresident of this state and who
is named executor by a resident decedent may qualify and act as
executor in this state;
(5) An individual who is a nonresident of this state may be
appointed and act as administrator of a resident decedent's
assets in this state if appointed in accordance with the
provisions of section four, article one of this chapter;
(6) An individual who is a nonresident of this state may be
appointed as the testamentary guardian of a resident infant if
appointed in accordance with the provisions of section one, article ten of this chapter; and
(7) An individual who is a nonresident of this state may be
appointed as committee guardian or conservator of a resident
incompetent: Provided, That such appointment is made in
accordance with the provisions of section one, article eleven
two, chapter twenty-seven forty-four-a of this code and if such
nonresident individual may otherwise qualify as committee
guardian or conservator.
(b) Nonresident individuals enumerated in subsection (a) of
this section shall give bond with corporate surety thereon,
qualified to do business in this state, and the amount of such
bond shall not be less than double the value of the personal
assets and double the value of any real property authorized to be
sold or double the value of any rents and profits from any real
property which the nonresident individual is authorized to
receive, except that:
(1) Any nonresident individual enumerated in subsection (a)
of this section who is the spouse, parent, sibling, lineal
descendent or sole beneficiary of a resident or nonresident
decedent shall give bond with corporate surety thereon qualified
to do business in this state, with such penalty as may be fixed
pursuant to the provisions of section seven, article one of this
chapter, as approved by the clerk of the county commission;
(2) Where the terms of a decedent's will directs that a
nonresident individual enumerated in subdivisions (1), (3), (4)
and (6) of subsection (a) of this section named in a decedent's
will shall not give bond or give bond at a specified amount, it
shall not be required or shall be required only to the extent
required under the terms of the will, unless at the time the will
is admitted to record or at any time subsequently, on the
application of any person interested, or from the knowledge of
the commission or clerk admitting the will to record, it is
deemed proper that greater bond be given.
(c) When a nonresident individual is appointed as executor,
administrator, testamentary guardian, guardian or committee
conservator pursuant to the provisions of subsection (a) of this
section, said individual thereby constitutes the clerk of the
county commission wherein such appointment was made as his true
and lawful attorney-in-fact upon whom may be served all notices
and process in any action or proceeding against him as executor,
administrator, testamentary guardian, guardian or committee
conservator or with respect to such estate, and such
qualification shall be a manifestation of said nonresident
individual's agreement that any notice or process, which is
served in the manner hereinafter provided in this subsection,
shall be of the same legal force and validity as though such nonresident was personally served with notice and process within
this state. Service shall be made by leaving the original and
two copies of any notice or process together with a fee of five
dollars with the clerk of such county commission. The fee of
five dollars shall be deposited with the county treasurer. Such
clerk shall thereupon endorse upon one copy thereof the day and
hour of service and shall file such copy in his office and such
service shall constitute personal service upon such nonresident:
Provided, That the other copy of such notice or process shall be
forthwith sent by registered or certified mail, return receipt
requested, deliver to addressee only, by said clerk or to such
nonresident at the address last furnished by him to said clerk
and either: (1) Such nonresident's return receipt signed by him;
or (2) the registered or certified mail bearing thereon the stamp
of the post office department showing that delivery therefore was
refused by such nonresident is appended to the original notice or
process filed therewith in the office of the clerk of the county
commission from which such notice or process was issued. No
notice or process may be served on such clerk of the county
commission or accepted by him less than thirty days before the
return date thereof. The clerk of such county commission shall
keep a record in his office of all such notices and processes and
the day and hour of service thereof. The provision for service of notice or process herein provided is cumulative and nothing
herein contained shall be construed as bar to service by
publication where proper or the service of notice or process in
any other lawful mode or manner.
(d) The personal estate of a resident decedent, infant or
incompetent may not be removed from this state until the
inventory or appraisement of that resident decedent's, infant's,
or incompetent's assets have been filed and any new or additional
bond required to satisfy the penalty specified in subsection (b)
of this section has been furnished. The liability of a
nonresident executor, administrator, testamentary guardian,
guardian or committee conservator and of any such surety shall be
joint and several and a civil action on any such bond may be
instituted and maintained against the surety, notwithstanding any
other provision of this code to the contrary, even though no
civil action has been instituted against such nonresident.
(e) Any such nonresident who removes from this state assets
administered in and situate in this state without complying with
the provisions of this section, the provisions of article eleven,
chapter forty-four of this code or any other requirement
pertaining to fiduciaries generally, shall be guilty of a
misdemeanor, and, upon conviction thereof, shall be fined not
more than one thousand dollars or confined in the county jail for not more than one year, or, in the discretion of the court, by
both such fine and imprisonment.
(f) If a nonresident appointed pursuant to subsection (a) of
this section fails or refuses to file an accounting required by
this chapter, and the failure continues for two months after the
due date, he may, upon notice and hearing, be removed or
subjected to any other appropriate order by the county
commission, and if his failure or refusal to account continues
for six months, he shall be removed by the county commission.
ARTICLE 10. GUARDIANS AND WARDS GENERALLY.
§44-10-7. Management of ward's estate; maintenance, education
and custody; duration of guardianship; settlement.
Every guardian who is appointed as aforesaid, and gives bond
when it is required, shall have the possession, care and
management of his ward's estate, real and personal, and out of
the proceeds of such estate shall provide for his maintenance and
education; and shall have also, except as otherwise provided in
this article, the custody of his ward. Unless the guardian shall
die, be removed or resign his trust (and the court before which
he qualified may allow him to resign), he shall continue in
office until his ward shall attain the age of eighteen years
notwithstanding the ward may marry before that time, or, in the
case of a testamentary guardianship, until the termination of the period limited therefor. At the expiration of his trust, he
shall deliver and pay all the estate and money in his hands, or
with which he is chargeable, to the person or persons entitled
thereto. But the father or mother of any minor child or children
shall be entitled to the custody of the person of such child or
children, and to the care of his or their education. If living
together, the father and mother shall be the joint guardians of
the person of their minor child or children, with equal powers,
rights and duties in respect to the custody, control, services,
earnings, and care of the education of such minor child or
children; and neither the father nor the mother shall have any
right paramount to that of the other in respect to such custody,
control, services or earnings, and care of the education of such
minor child or children. If the father and mother be living
apart, the court to which application is made from the
appointment of a guardian, or before which any such matter comes
in question, shall appoint, as guardian of the person of the
minor child or children of such father and mother, that parent
who is, in the court's opinion, best suited for the trust,
considering the welfare and best interests of such minor child or
children. No corporation or trust company shall be guardian of
any minor child or children be entitled to the custody, control,
services, earnings and care of the education of such minor child or children, and when any corporation or trust company is
guardian of the estate of any minor child or children and neither
of the parents of such child or children is living, or is a
suitable person to act as guardian of the person of such child or
children, then the court shall appoint a guardian of the person
of such child or children who shall be entitled to the custody,
control, services, earnings and care of the education of such
minor child or children. Any corporation or trust company
appointed as guardian of the estate of any minor child or
children shall, unless for such minor child or children a
nonresident of this state may be appointed guardian, be a
corporation organized under the laws of this state and doing
business in this state, or an authorized banking institution,
defined as one authorized to exercise trust and fiduciary powers
within this state under section fourteen, article four, chapter
thirty-one-a of this code.
CHAPTER 44A. WEST VIRGINIA GUARDIANSHIP AND CONSERVATORSHIP
ACT.
ARTICLE 1. DEFINITIONS AND GENERAL PROVISIONS.
§44A-1-11. Guardian or conservator who resides out of state to
designate resident agent.
A guardian or conservator who is or who later becomes a
nonresident of this state shall file with the clerk of the
circuit court in the county in which the proceeding is pending or where he or she was appointed guardian/conservator a designation
of an agent residing in this state to accept service of process.
Such filing shall be made promptly following the change of
residence. No bank authorized to execute trust powers or engage
in trust business in this state shall be considered to be a
nonresident of this state for purposes of this section regardless
of the location of the main office of the bank.