(1)Except as otherwise provided in this
article, only the banking board may take possession of a trust company if, after a
hearing before the banking board, it finds: The trust company's capital is
inadequate; the trust company's business is being conducted in an unlawful or
unsound manner; the trust company is unable to continue normal operations; or the
control of the trust company has been assumed by any person or persons convicted
of fraud or a felony involving moral turpitude or financial dealings in this state or
any other jurisdiction, or by any partnership, association, or corporation controlled,
directly or indirectly, by any person so convicted, unless the banking board
determines that such person has been duly rehabilitated or otherwise that the trust
company will be
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(1) Except as otherwise provided in this
article, only the banking board may take possession of a trust company if, after a
hearing before the banking board, it finds: The trust company's capital is
inadequate; the trust company's business is being conducted in an unlawful or
unsound manner; the trust company is unable to continue normal operations; or the
control of the trust company has been assumed by any person or persons convicted
of fraud or a felony involving moral turpitude or financial dealings in this state or
any other jurisdiction, or by any partnership, association, or corporation controlled,
directly or indirectly, by any person so convicted, unless the banking board
determines that such person has been duly rehabilitated or otherwise that the trust
company will be honestly and efficiently managed.
(2) (a) The banking board shall take possession of a trust company by
posting upon the premises a notice reciting that it is assuming possession pursuant
to this article and the time, not earlier than the posting of the notice, when its
possession shall be deemed to commence. A copy of the notice shall be filed in the
district court of the county in which the trust company is located. The commissioner
shall notify the federal deposit insurance corporation of taking possession of any
trust company that is a member of such corporation.
(b) When the banking board has taken possession of a trust company, the
commissioner is vested with the full and exclusive power of control, including the
power to stop or to limit the payment of the trust company's obligations; to employ
any necessary assistants, including legal counsel, after possession of the trust
company has been taken; to execute any instrument in the name of the trust
company; to commence, defend, and conduct in the trust company's name any
action or proceeding to which it may be a party; to terminate the commissioner's
possession by restoring the trust company to its board of directors and
stockholders upon conditions prescribed by the banking board; and to reopen a
closed trust company or liquidate the trust company in accordance with this article
109. As soon as practicable after the banking board takes possession, the
commissioner shall make an inventory of the assets and file a copy thereof with the
court in which the notice of possession was filed.
(c) For six months after the posting of the notice of possession and while the
banking board's possession continues, there shall be a postponement of the date
upon which any period of limitation fixed by statute or agreement would otherwise
expire on a claim or right of action of the trust company, or upon which a review
must be taken or a pleading or other document must be filed by the trust company
in any pending action or proceeding.
(d) If, in the opinion of the banking board, an emergency exists that may
result in serious losses to the customers, it may take possession of a trust company
without a prior hearing. Within ten days after the banking board has taken
possession, any interested person may file an application with the banking board
for an order vacating such possession. The banking board shall grant the
application if it finds its action was unauthorized.
(3) For the purposes of this article, a trust company shall be deemed to be
closed when the banking board has closed the trust company for business for the
purpose of liquidation. The banking board shall mail notice of its intent to liquidate
the trust company to the directors, stockholders, and depositors at their addresses
as shown on the records of the trust company, and the commissioner shall proceed
to liquidate the trust company. The banking board may appoint a liquidator to
conduct the liquidation of the affairs of any trust company. The liquidator shall
perform all of the duties required of the commissioner under this article and shall
make such periodic reports as the banking board shall require. If the trust company
is a member of the federal deposit insurance corporation, the banking board may
offer the position of liquidator to the federal deposit insurance corporation, which
may decline in their discretion. The liquidator may employ such other assistants and
legal counsel at such reasonable compensation as the liquidator shall determine to
be necessary. All expenses incident to the liquidation shall be paid out of the assets
of the trust company. The liquidator and any assistants shall provide a bond
executed by a surety company authorized to do business in this state, running to
the people of the state of Colorado, that meets with the approval of the banking
board, for the faithful discharge of their duties in connection with such liquidation
and the accounting for all moneys coming into their hands. The cost of such bond
shall be paid from the assets of the trust company. Suit may be maintained on such
bond by any person injured by a breach of the conditions thereof.
(4) No judgment, lien, or attachment shall be executed upon any asset of the
trust company while it is in the possession of the banking board. Upon the election
of the commissioner, in connection with a liquidation:
(a) Any nonconsensual lien or attachment, other than an attorney's or
mechanic's lien, obtained upon any asset of the trust company during the banking
board's possession, or within four months prior to commencement thereof, shall be
vacated and voided, except liens created by the banking board while in possession;
(b) Any transfer of an asset of the trust company made after or in
contemplation of its insolvency, with intent to effect or that results in a preference,
shall be voided.
(5) With the approval of the court in which notice of possession has been
filed, the commissioner may borrow money in the name of the trust company and
may pledge its assets as security for the loan.
(6) All necessary and reasonable expenses of the banking board's
possession of a trust company and of its liquidation shall be paid from the assets
thereof.