TITLE XXXV
BANKS AND BANKING; LOAN ASSOCIATIONS; CREDIT UNIONS

Chapter 395
LIQUIDATION UNDER SUPERVISION OF THE BANK COMMISSIONER

Section 395:1

    395:1 Petition. – If any institution under the supervision of the bank commissioner shall refuse to permit an examination of its affairs by the commissioner, or to furnish the necessary facilities therefor, or shall violate its charter or any law of the state after having been notified in writing by the commissioner of such violation, or if at any time it appears to the commissioner that its business is being conducted in an unsafe or unauthorized manner, or that it is necessary for the public safety that it should not continue to transact business, the commissioner may represent the fact by petition to some justice of the superior court.

Source. 1911, 68:2. 1915, 97:1. PL 268:1. RL 316:1.

Section 395:2

    395:2 Orders. – The court may issue an injunction prohibiting, as far as may be thought necessary, the transaction of any business of said institution and the commissioner shall cause the same to be served. Any justice of the superior court, upon petition and notice to the commissioner, may dissolve, modify, continue or extend such injunction as equity may require. If in the opinion of said justice the public good requires he may direct the commissioner to take possession forthwith of the property and business of such institution, and he may retain possession thereof until it shall resume business, or until its affairs shall finally be liquidated as herein provided; and upon completing such liquidation the charter of such institution shall be vacated.

Source. 1911, 68:2. 1915, 97:1. PL 268:2. RL 316:2.

Section 395:3

    395:3 Resuming Business. – Such institutions may, with the consent of the commissioner, resume business upon such conditions as the commissioner may approve.

Source. 1911, 68:3. PL 268:3. RL 316:3.

Section 395:4

    395:4 Insolvency. – Whenever it appears to the commissioner that any institution to which this chapter applies reflects negative equity capital, as determined by the most recent report of examination conducted by the banking department or a federal deposit insuring agency, the commissioner may represent the facts by ex parte petition to some justice of the superior court, or, at such time as the commissioner receives notice from a federal deposit insuring agency that such agency has commenced any proceeding to terminate the subject institution's deposit insurance, the commissioner shall represent the facts by ex parte petition to a justice of the superior court. In either such circumstance, said justice shall direct the commissioner to take possession of the property and business of such institution and retain possession thereof until it shall resume business, or until its affairs shall finally be liquidated as herein provided; and upon completion of such liquidation the charter of such institution shall be vacated.

Source. 1911, 68:4. PL 268:4. RL 316:4. RSA 395:4. 1991, 251:3. 1992, 98:1, eff. Apr. 29, 1992.

Section 395:5

    395:5 Commissioner's Duties. – Upon taking possession of the property and business of any institution to which this chapter applies, the commissioner shall have authority to collect money due the institution and to do such other acts as are necessary to conserve its assets and business. He shall collect all debts due and claims belonging to it, and, upon the order of the superior court, may sell or compound all bad or doubtful debts; and on like order may sell all or any part of the real and personal property of the institution on such terms as the court shall direct.

Source. 1911, 68:5. PL 268:5. RL 316:5. RSA 395:5. 1967, 132:16, eff. July 18, 1967.

Section 395:6

    395:6 Inventory. – The commissioner shall make an inventory of the assets of the institution in duplicate, one to be filed in the office of the commissioner, and one in the office of the clerk of the superior court for the county in which the principal office of the institution is located.

Source. 1911, 68:5. PL 268:6. RL 316:6.

Section 395:7

    395:7 Notice. – The commissioner shall give notice of the fact that he has taken possession of the property and business of the institution to any and all banks, trust companies, associations and individuals holding or having possession of any assets of such institution.

Source. 1911, 68:5. PL 268:7. RL 316:7.

Section 395:8

    395:8 Effect. – No bank, trust company, association or individual, knowing that the commissioner has taken such possession, or having been notified thereof as aforesaid, shall have a lien or charge for any payment, advance or clearance thereafter made, or liability thereafter incurred, against any of the assets of the institution.

Source. 1911, 68:5. PL 268:8. RL 316:8.

Section 395:9

    395:9 Commissioner's Authority. – For the purpose of executing and performing the powers and duties hereby conferred upon him, the commissioner may, in the name of any such institution, prosecute and defend any legal proceedings, and may in the name of the institution execute, acknowledge and deliver any instruments necessary and proper to effectuate any sale of real or personal property or any compromise authorized by the court as herein provided; and any instrument executed pursuant to such authority shall be valid and effectual for all purposes to the same extent as though executed by the institution.

Source. 1911, 68:6. PL 268:9. RL 316:9.

Section 395:10

    395:10 Appointment of Agents. – The commissioner may appoint agents to assist him to perform such duties connected with the business of such institutions as he may deem proper, and may procure such expert assistance and advice, or retain such of the officers or employees of such institution, as he may deem necessary; and the commissioner shall require from such agents or assistants such security for the faithful performance of their duty as he may deem proper.

Source. 1911, 68:7. PL 268:10. RL 316:10.

Section 395:10-a

    395:10-a Authority to Appoint a Federal Regulatory Agency as Liquidating or Receiving Agent. – Upon petition by the bank commissioner for the state to the superior court, the court may authorize the commissioner to appoint as liquidating or receiving agent of the bank commissioner a federal agency having authority to act in such capacity, subject to consent of such federal agency, allowing the federal agency so appointed to take possession of the assets, both legal and equitable, of a closed New Hampshire depository institution or any institution with respect to which the commissioner has filed a petition pursuant to RSA 395:4. As liquidating or receiving agent appointed by the bank commissioner with the permission of the court, the federal agency may assist the bank commissioner in the performance of his duties pursuant to this chapter, completing the final liquidation of such depository institution and vacation of its charter. The federal agency so appointed shall not be subject to the requirements of RSA 395:5. Upon such appointment, the Federal Deposit Insurance Corporation, the Resolution Trust Corporation, the National Credit Union Administration or any successor federal agency shall carry out its duties as receiver or liquidator pursuant to the applicable provisions of federal law.

Source. 1973, 11:1. 1991, 251:1. 1992, 98:2, eff. Apr. 29, 1992.

Section 395:10-b

    395:10-b Emergency Waiver. – The bank commissioner, upon the appointment of a federal agency as receiving or liquidating agent pursuant to RSA 395:10-a, shall have authority to issue an order waiving or suspending all laws, rules, practices and policies with respect to the authorization to commence or continue banking operations in the state of New Hampshire as he deems necessary and prudent. Such order shall take effect upon the appointment of the federal agency and shall continue in force until all actions necessary to liquidate the insolvent or closed New Hampshire depository institution are completed. Any waiver or suspension of any law, rule, practice or policy shall be limited to matters pertaining to the legally insolvent or closed New Hampshire depository institution for whom a liquidating or receiving agent has been appointed.

Source. 1991, 251:2, eff. June 10, 1991.

Section 395:11

    395:11 No Extra Compensation to Commissioner. – The commissioner shall not receive any extra compensation for his services.

Source. 1911, 68:10. PL 268:11. RL 316:11.

Section 395:12

    395:12 Agent's Compensation, Etc. – The compensation of any agents, counsel, employees and assistants, and all expenses of supervision and liquidation, shall be fixed by the commissioner, subject to the approval of the court, and on notice to such institution, and upon the certificate of the commissioner, shall be paid out of the funds of the institution in their hands.

Source. 1911, 68:10. PL 268:12. RL 316:12.

Allowance and Payment of Claims

Section 395:13

    395:13 Notice. – The commissioner shall cause to be published weekly for 3 consecutive months, in such newspapers as he may direct, a notice calling on all persons who may have claims against such institution to present the same to the commissioner and to make legal proof thereof at a place and time not earlier than the last day of publication, to be therein specified. The commissioner shall mail a similar notice to all persons whose names appear as creditors upon the books of the institution so far as their addresses are known.

Source. 1911, 68:8. PL 268:13. RL 316:13.

Section 395:14

    395:14 Rejection. – If the commissioner doubts the justice and validity of any claim he may reject the same and serve notice of such rejection upon the claimant either by mail or in person. An affidavit of service of such notice, which shall be prima facie evidence thereof, shall be filed with the commissioner.

Source. 1911, 68:8. PL 268:14. RL 316:14.

Section 395:15

    395:15 Suit. – An action upon the claim so rejected shall not be entertained unless brought within 6 months after such service.

Source. 1911, 68:8. PL 268:15. RL 316:15.

Section 395:16

    395:16 Delayed Claims. – Claims presented after the expiration of the time specified in the notice to creditors shall be entitled to share in the distribution only to the extent of the assets in the hands of the commissioner equitably applicable thereto.

Source. 1911, 68:8. PL 268:16. RL 316:16.

Section 395:17

    395:17 Reports on Claims. – Upon the expiration of the time fixed for the presentation of claims, the commissioner shall make in duplicate a full and complete list of the claims presented, including and specifying such claims as have been rejected by him. One of the said lists shall be filed in the office of the commissioner, and the other in the office of the clerk of court.

Source. 1911, 68:9. PL 268:17. RL 316:17.

Section 395:18

    395:18 Additional List. – Thereafter the commissioner shall make and file in said offices, at least 15 days before every application to the court for leave to declare a dividend, a supplementary list of the claims presented since the last preceding list was filed, including and specifying such claims as have been rejected by him, and, in any event, he shall make and file the said list at least once in every year after the filing of the original list, so long as he shall remain in the possession of the property and business of the institution. Said inventory and lists shall be open to inspection at all reasonable times.

Source. 1911, 68:9. PL 268:18. RL 316:18.

Section 395:19

    395:19 Payment of Secured Claims and Dividends. –
At any time after the expiration of the date fixed for the presentation of claims, upon application of the commissioner, the court may authorize:
I. Any person who holds a perfected security interest or a mortgage lien in assets of the insolvent or closed New Hampshire depository institution, which security interest or mortgage lien was granted to the person by such institution pursuant to a written contract or agreement as security for the payment of a debt or obligation deemed to be valid by the commissioner to:
(a) Dispose of or foreclose its mortgage lien on the collateral pursuant to applicable law;
(b) Satisfy such debt or obligation from the proceeds thereof;
(c) Pay the balance of the proceeds, if any, to the commissioner; and
(d) Provide a full account to the commissioner for all actions taken in connection with the disposition of or foreclosure of its mortgage lien on the collateral; and
II. The commissioner to declare out of the funds remaining in his hands, one or more dividends, such dividends to be paid to such persons, in such amounts, and upon such notice, as may be directed by the court. All dividends payable under this paragraph shall be paid in accordance with the priority established under RSA 395:30.

Source. 1911, 68:11. PL 268:19. RL 316:19. RSA 395:19. 1991, 251:4, eff. June 10, 1991.

Section 395:20

    395:20 Payment of. – In the absence of an express written agreement to the contrary, any person paying to the depositor of a bank closed or in liquidation under this chapter or in any manner, a part or the whole of his deposit therein shall be subrogated to the rights of such depositor to receive dividends on account of the amount so paid.

Source. 1937, 103:7. RL 316:20.

Section 395:21

    395:21 Objections to Claims. – Objections to any claim not rejected by the commissioner may be made by any person interested by filing a copy of such objections with the commissioner, who shall present the same to the court at the time of the next application for permission to declare a dividend. The court to which such application is made shall thereupon notify the claimant and determine the validity of the claim. No dividend thereon shall be paid by the commissioner until the claimant shall have established his claim by judgment of the court.

Source. 1911, 68:11. PL 268:20. RL 316:21.

Section 395:22 to 395:25

    395:22 to 395:25 Repealed by 1965, 214:2, eff. Jan. 1, 1966. –

Supervisory Power of Court

Section 395:26

    395:26 Procedure. – Whenever any institution of whose property and business the commissioner takes possession as aforesaid deems itself aggrieved thereby, it may at any time within 10 days thereafter apply to the court to discontinue further proceedings; and the court, after notice to the commissioner and hearing, may dismiss such application or direct the commissioner to surrender the said business and property to the institution.

Source. 1911, 68:14. PL 268:25. RL 316:26.

Reduction of Deposits

Section 395:27

    395:27 By Commissioner. – Whenever it appears to the commissioner advisable, or upon the petition of the trustees or directors of the institution, he may, with the approval of a justice of the superior court, reduce pro rata the deposit account of each depositor therein, whenever the value of its assets is less than the total amount of its deposits.

Source. 1911, 68:16. PL 268:26. RL 316:27.

Section 395:28

    395:28 Sharing Assets. – If the bank shall realize from the assets a greater sum than was so fixed upon the court shall order such excess to be equitably divided among the depositors whose accounts have been reduced, but to the extent of such reduction only.

Source. 1911, 68:16. PL 268:27. RL 316:28.

Section 395:29

    395:29 New Deposits. – If any institution whose deposit accounts have been reduced under the provisions of this chapter shall afterward receive new deposits it shall keep its accounts, and in all respects conduct its business relating to such new deposits, as if it were a separate institution, distinct from the one in which the old deposits were made; and if proceedings shall be commenced against such institution to wind up its affairs the court may make the same applicable to either or both parts of such business. Notice of such proceedings shall be given by publication in one or more newspapers published in the county where the institution is located.

Source. 1911, 68:17. PL 268:28. RL 316:29.

Section 395:29-a

    395:29-a Federal Approval. – Notwithstanding any provision of RSA 395:27, 28 or 29 to the contrary, any deposit account in any institution, the deposits of which are insured by the Federal Deposit Insurance Corporation, or any other agency or instrumentality of the United States of America, may not be reduced without the consent of the Federal Deposit Insurance Corporation or such other agency or instrumentality.

Source. 1991, 251:5, eff. June 10, 1991.

Miscellaneous Provisions

Section 395:30

    395:30 Distribution of Assets. –
Payments of dividends under RSA 395:19 and any other proceeds of the property of a closed or insolvent New Hampshire depository institution shall be distributed according to the decree of the court in the following priority:
I. The payment of the costs and expenses of the liquidation.
II. The payment of wage, salary and other claims of employees to the same extent such claims would be accorded priority under federal bankruptcy law.
III. The payment of claims for deposit accounts including but not limited to "deposits" as defined in 12 U.S.C. section 1813(l), or as it may be later amended from time to time.
IV. The payment of liens accorded priority under New Hampshire law.
IV-a. Reimbursement of fees or costs paid in advance by a consumer in relation to a mortgage loan application when the mortgage loan was not processed due solely to the insolvency of the institution, but only to the extent such fees or costs were not paid over to a third party for services actually rendered prior to the insolvency.
V. The payment of all debts, claims, and obligations filed in accordance with RSA 395:13, not accorded priority in the preceding paragraphs.
VI. The payment of delayed claims in accordance with RSA 395:16.
VII. The payment of capital debentures issued under RSA 383-A:4-403 and any other obligations expressly subordinated to deposits and to claims entitled to the priority established in the preceding paragraphs.
VIII. Any funds remaining shall be divided in the case of a stock institution among the stockholders according to their respective interests or, in the case of a mutual institution, among the depositors in proportion to the respective amounts of their deposits.
IX. Interest shall be given the same priority as the claim on which it is based, but no interest shall be paid on any claim until the principal of all claims within the same class and all higher-priority classes have been paid or adequately provided for in full.

Source. 1911, 68:18. PL 268:29. RL 316:30. RSA 395:30. 1959, 109:6. 1991, 251:6. 1993, 245:1. 2015, 272:29, eff. Oct. 1, 2015.

Section 395:31

    395:31 Reports by Commissioner. – The commissioner shall incorporate in his annual report a statement showing the condition of any institution in his possession.

Source. 1911, 68:19. PL 268:30. RL 316:31.

Section 395:32

    395:32 Destruction of Records. – Records and papers preserved in the office of the bank commissioner and concerned with the liquidation of a bank, as provided for in this chapter, may be destroyed at the end of 10 years after such liquidation proceedings have been completed.

Source. 1957, 2:1, eff. July 1, 1957.