§ 53 — Commissioner's possession; power

The Commissioner may take possession and control of a state bank and its assets, by posting upon the premises a notice reciting that he is assuming possession pursuant to this Act, and the time when his possession shall be deemed to commence, which time shall not pre-date the posting of the notice. Promptly after taking possession and control of a bank, if the Federal Deposit Insurance Corporation is not appointed as receiver, the Commissioner shall file a copy of the notice posted upon the premises in the circuit court in the county in which the bank is located, and thereupon the clerk of such court shall note the filing thereof upon the records of the court, and shall enter such cause as a court action upon the dockets of such court under the name and style of "In the matter of the possession and control of the Commissioner of Banks and Real Estate of ...." (inserting the name of such bank), and thereupon the court wherein such cause is docketed shall be vested with jurisdiction to hear and determine all issues and matters pertaining to or connected with the Commissioner's possession and control of such bank as provided in this Act, and such further issues and matters pertaining to or connected with the Commissioner's possession and control as may be submitted to such court for its adjudication by the Commissioner. When the Commissioner has taken possession and control of a bank and its assets, he shall be vested with the full powers of management and control, including without limiting the generality thereof, the following: (1) the power to continue or to discontinue the business; (2) the power to stop or to limit the payment of its obligations, provided, however with respect to a qualified financial contract between any party and a bank or banking office, the branch or agency of which the Commissioner has taken possession and control, which party has a perfected security interest in collateral or other valid lien or security interest in collateral enforceable against third parties pursuant to a security arrangement related to that qualified financial contract, the party may retain all of the collateral and upon repudiation or termination of that qualified financial contract in accordance with its terms apply the collateral in satisfaction of any claims secured by the collateral; in no event shall the total amount so applied exceed the global net payment obligation, if any; (3) the power to collect and to use its assets and to give valid receipts and acquittances therefor; (4) the power to employ and to pay any necessary assistants; (5) the power to execute any instrument in the name of the bank; (6) the power to commence, defend and conduct in its name any action or proceeding in which it may be a party; (7) the power, upon the order of the court, to sell and convey its assets in whole or in part, and to sell or compound bad or doubtful debts upon such terms and conditions as may be fixed in such order; (8) the power, upon the order of the court, to make and to carry out agreements with other banks or with the United States or any agency thereof which shall have insured the bank's deposits, in whole or in part, for the payment or assumption of the bank's liabilities, in whole or in part, and to transfer assets and to make guaranties, in whole or in part, and to transfer assets and to make guaranties in connection therewith; (9) the power, upon the order of the court, to borrow money in the name of the bank and to pledge its assets as security for the loan; (10) the power to terminate his possession and control by restoring the bank to its board of directors; (11) the power to reorganize the bank as provided in this Act; (12) the power to appoint a receiver and to order liquidation of the bank as provided in this Act; and (13) the power, upon the order of the court and without the appointment of a receiver, to determine that the bank has been closed for the purpose of liquidation without adequate provision being made for payment of its depositors, and thereupon the bank shall be deemed to have been closed on account of inability to meet the demands of its depositors. As soon as practical after taking possession, the Commissioner shall make his examination of the condition of the bank and an inventory of the assets. Unless the time shall be extended by order of the court and, unless the Commissioner shall have otherwise settled the affairs of a bank pursuant to the provisions of this Act, at the termination of thirty days from the time of taking possession and control of a bank for the purpose of examination, reorganization or liquidation through receivership, the Commissioner shall either terminate his possession and control by restoring the bank to its board of directors or appoint a receiver and order the liquidation of the bank as provided in this Act. All necessary and reasonable expenses of the Commissioner's possession and control and of its reorganization shall be borne by the bank and may be paid by the Commissioner from its assets. If the Federal Deposit Insurance Corporation is appointed by the Commissioner as receiver of a State bank, or the Federal Deposit Insurance Corporation takes possession of such State bank, the receivership proceedings and the powers and duties of the Federal Deposit Insurance Corporation shall be governed by the Federal Deposit Insurance Act and regulations promulgated thereunder rather than the provisions of this Act.

Legislative History

(Source: P.A. 92-483, eff. 8-23-01.)