Farmers Deposit Bank of Brandenburg v. Department of Banking & Securities

669 S.W.2d 22, 1984 Ky. App. LEXIS 484
CourtCourt of Appeals of Kentucky
DecidedApril 6, 1984
StatusPublished
Cited by1 cases

This text of 669 S.W.2d 22 (Farmers Deposit Bank of Brandenburg v. Department of Banking & Securities) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Farmers Deposit Bank of Brandenburg v. Department of Banking & Securities, 669 S.W.2d 22, 1984 Ky. App. LEXIS 484 (Ky. Ct. App. 1984).

Opinion

CLAYTON, Judge.

The Farmers Deposit Bank of Brandenburg appeals from a judgment of the Franklin Circuit Court affirming the decision of the Department of Banking and Securities to approve the bank charter application of the proposed Meade County Bank (the “proposed bank”). An application for a Bank Charter and Federal Deposit Insurance (the “application”) was filed with the Department of Banking and Securities (the “Department”) on December 9, 1982. Named as incorporators in the application are the appellees: J.D. Tobin, Jr.; J.D. Tobin, Sr.; Kenneth Heavrin; Leroy Humphrey; James Michael Jones; and David Ridenour. A notice of opposition to the application was filed with the Department that same month by the appellant, Farmers Deposit Bank of Brandenburg (the “Farmers Deposit Bank” or “Farmers”).

Pursuant to the instructions of the Commissioner of the Department, an office review and field investigation of the applica[24]*24tion were conducted by a banking investigator for the Department. The investigator’s report, dated January 10, 1982, includes a review of the proposed bank’s financial history and condition, proposed management, public convenience and advantage, reasonable probability for successful operation, and capital requirements. The report concludes that “[a]ll factors addressed by the application and investigation thereof appeared favorable.”

On March 7, 1983, a public hearing was held before a hearing officer of the Department as required by KRS 287.061. Among those present and testifying for the proposed bank were members of the group of incorporators, the extension agent and property valuation administrator of Meade County, and a professor of economics from the University of Kentucky, L. Randolph McGee. The Farmers Deposit Bank submitted the testimony of its President, and two certified public accountants, Hamilton and Stewart. The hearing officer subsequently entered Findings of Fact and Conclusions of Law recommending issuance of a bank charter. To quote a portion of language of the hearing officer, “[t]he projections favorable, proposed management has experience, and there is community support.” The Commissioner of the Department subsequently adopted the hearing officer’s recommendations. Farmers Deposit Bank appealed the Commissioner’s decision to Franklin Circuit Court, which affirmed the Commissioner’s ruling.

Farmers Deposit Bank now seeks reversal of the lower court’s decision arguing that (1) the proposed bank’s application does not meet the criteria of KRS 287.-050(1); (2) the ownership of the Tobins in the proposed bank contravenes KRS 287.-030; and (3) the approval of the proposed bank’s application is arbitrary and capricious given the lack of significant or substantial changes in Meade County since 1976, the year in which the Department disapproved an application for a new bank in Meade County.

We disagree and are unable to find any deficiency in the application or applicants with respect to KRS 287.050(1), KRS 287.030, or the Department’s prior disapproval. On the contrary, we hold that there is substantial evidence that the proposed bank has a reasonable assurance of sufficient volume of business to be successful and that the public convenience and advantage will be promoted by the opening of the proposed bank. KRS 287.050(1). Furthermore, the aggregate ownership of eighty percent (80%) of the capital stock of the First State Bank of Irvington by J.D. Tobin, Sr., and J.D. Tobin, Jr., father and son incorporators of the proposed bank, does not prevent their individual acquisition of an aggregate of sixty percent (60%) of the capital stock in the proposed bank. The definition of “person” as found in KRS 287.030 does not include the familial father/son relationship for the purposes of attribution of stock ownership. Therefore, since neither of the Tobins as individuals owns fifty percent (50%) of the Bank of Irvington nor the proposed bank, we hold there to be no violation of KRS 287.030. Finally, after thoroughly reviewing the record, we hold that there is ample evidence of “significant” or “substantial” changes justifying approval of the application. Williams v. Cumberland Valley National Bank, Ky.App., 569 S.W.2d 711 (1978).

I.

We begin with an examination of the three statutory elements found in KRS 287.050. Both parties have stipulated the satisfaction of the first of these criteria, the “financial standing, moral character and capacity of the incorporators,” KRS 287.050. It is the second and third element, the reasonable assurance of success and the public convenience and advantage which the appellant draws into contention. The appellant’s arguments regarding the second element of KRS 287.050(1), the reasonable assurance of sufficient volume of business, fall neatly into two categories. The first of these categories contains expert financial testimony on deposit growth and projected profits. The second one in-[25]*25eludes general testimony on relevant economic and demographic factors.

Distilled to its essence, the testimony of the appellant’s first financial expert, Hamilton, is that the proposed bank cannot be successfully operated at the 8.4% historical deposit growth rate of Meade County nor even at the more favorable deposit growth rate of 10%, the total deposit growth rate in the tri-county area of Meade, Breckin-ridge, and Hardin Counties. Stewart, the second of the appellant’s financial experts, contends that the proposed bank incorpora-tors are overly optimistic in their projections on deposits, spread between return of assets and cost of funds, and loan losses. Farmers Deposit Bank additionally criticizes the testimony of the appellees’ financial expert, Professor McGee, questioning the soundness of his reliance on a 12.6% personal income growth rate and “penetration ratio” estimates to project deposit growth of the proposed bank.

We have reviewed the appellees’ financial projections and the bank investigator’s and hearing officer’s comments concerning them. None of the appellant’s expert financial testimony, nor arguments founded thereon, has convinced us that these projections are improperly based, overly optimistic, or unsound. Professor McGee’s reliance on the Meade County personal income growth rate to determine deposit growth is not unwarranted given the unique nature of the current banking climate in Meade County.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
669 S.W.2d 22, 1984 Ky. App. LEXIS 484, Counsel Stack Legal Research, https://law.counselstack.com/opinion/farmers-deposit-bank-of-brandenburg-v-department-of-banking-securities-kyctapp-1984.