8-187. Banks; department may take possession; when; examination of affairs; liens dissolved; retention of possession.

Whenever it appears to the director from any examination or report provided for by the laws of this state that (1) the capital of any bank is impaired, (2) a bank is conducting its business in an unsafe or unauthorized manner, (3) a bank is endangering the interests of its depositors, (4) a bank, upon its failure, refuses to make any of the reports or statements required by the laws of this state, (5) the officers or employees of any bank refuse to submit its books, papers, and affairs to the inspection of any examiner, (6) any officer of a bank refuses to be examined upon oath touching the affairs of the bank, (7) from any examination or report provided for by law, the director has reason to conclude that a bank is in an unsafe or unsound condition to transact the business for which it is organized or that it is unsafe and inexpedient for the bank to continue its business, or (8) a bank neglects or refuses to observe any order of the director, the department may immediately take possession of the property and business of the bank, conduct the affairs of the bank, and retain possession of all money, rights, credits, assets, and property of every description belonging to the bank, as against any mesne or final process issued by any court against the bank whose property has been taken and retain possession for a sufficient time to make an examination of its affairs and dispose of such property as provided by law. All levies, judgment liens, attachments, or other liens obtained through legal proceedings against the bank or its property, acquired within sixty days next preceding the taking of possession of the bank, in the event the bank is liquidated and the business of the bank is not resumed or carried on after the taking of possession of the bank by the department, shall be void and the property affected by the levy, judgment lien, attachment, or other lien so obtained shall be wholly discharged and released from any levy, judgment lien, attachment, or other lien. The department shall retain possession of the property and business of the bank until the bank resumes business or its affairs are finally liquidated under the Nebraska Banking Act.

Source

Annotations

1. Taking possession

2. Liens

3. Liquidation

4. Reorganization

5. Miscellaneous

1. Taking possession

This section empowers the Department of Banking and Finance to take possession of the property and business of a bank and conduct its affairs, retaining possession of all money, rights, credits, assets, and property of every description belonging to the bank, whenever it finds that a bank is conducting its business in an unsafe or unauthorized manner. Even after a court has appointed a receiver to liquidate a banking corporation's assets and business, this section still empowers the Department of Banking and Finance to take possession of that bank and conduct its affairs, since the corporation continues its legal existence. In re Invol. Dissolution of Battle Creek State Bank, 254 Neb. 120, 575 N.W.2d. 356 (1998).

Taking over of bank was authorized under this section, and acts performed in reference to closed transactions wherein fraud was not charged were not subject to collateral attack. Torgeson v. Department of Trade and Commerce, 127 Neb. 38, 254 N.W. 735 (1934).

Taking over of bank by Department of Banking to manage or liquidate does not effect dissolution of corporation, which retains identity and is subject to suit, provided there is no interference with assets. Svoboda v. Snyder State Bank, 117 Neb. 431, 220 N.W. 566 (1928).

In case of noncompliance with provisions for payment of guaranty fund assessments, Department of Banking was authorized to forthwith take possession of property and business of the bank. Abie State Bank v. Bryan, 282 U.S. 765 (1930).

Upon first taking possession of bank under this section, and pending determination of what course to pursue, state banking officials are entitled to hold assets as against any mesne or final process issued by any court. Metropolitan Savings Bank & Trust Co. v. Farmers' State Bank, 20 F.2d 775 (8th Cir 1927).

2. Liens

Whenever the practices or condition of a state bank is such that it is taken in charge by Department of Banking, all attachment liens acquired within thirty days are dissolved. Luikart v. Hunt, 124 Neb. 642, 247 N.W. 790 (1933).

Judgment obtained against bank while in hands of state banking officials is not a lien upon real estate of the bank. Brownell v. Svoboda, 118 Neb. 76, 223 N.W. 641 (1929).

3. Liquidation

Under this section, prior to 1929 amendment, Guaranty Fund Commission was required to determine within a reasonable time whether it would operate bank as going concern or liquidate it through a receiver. Morrill County v. Bliss, 125 Neb. 97, 249 N.W. 98 (1933).

Under prior act, this section did not grant to Department of Banking authority to wind up the affairs of an insolvent state bank without the aid of a court. State ex rel. Sorensen v. State Bank of Minatare, 123 Neb. 109, 242 N.W. 278 (1932).

Conveyance of property of bank to trustee for purpose of liquidation and distribution to depositors creates express trust and constitutes equitable conversion of real estate into money. Jensen v. Ballmer, 121 Neb. 488, 237 N.W. 613 (1931).

Court was not authorized to appoint receiver in foreclosure action to take charge of mortgaged real estate of bank, where its entire assets are already under control of Department of Banking as receiver of bank. Wells v. Farmers State Bank of Overton, 121 Neb. 462, 237 N.W. 402 (1931).

State banking officials in charge of bank are entitled to reasonable time to determine whether to turn it back or operate it, and in meantime assets immune from execution; creditor seeking to levy must allege and prove state banking officials have been in charge longer than reasonable. McBride v. Taylor, 117 Neb. 381, 220 N.W. 683 (1928).

Where state bank was taken over by Department of Banking and a receiver appointed, the fact of actual insolvency, coupled with admissions by bank directors in statement to department, constituted "voluntary assignment" giving United States priority as to postal funds. Bliss v. United States, 44 F.2d 909 (8th Cir. 1930).

This section summarized in reviewing statutory provisions bearing on right of receiver of bank to sue in foreign jurisdiction to recover stockholder's liability. Luikart v. Spurck, 1 F.Supp. 53 (D. Ill. 1932).

4. Reorganization

City not consenting to reorganization plan under this section was entitled to recover balance of deposit unpaid from surety on bond of city treasurer, where bond to secure the deposit had not been given. City of Cozad v. Thompson, 126 Neb. 79, 252 N.W. 606 (1934).

Reorganization, recapitalization and reopening of bank taken over by banking officials under this section do not result in the dissolution of the old bank or in the creation of a new bank. Barber v. Bryan, 123 Neb. 566, 243 N.W. 834 (1932).

Reorganization of insolvent bank is not binding on nonconsenting depositor, who is entitled to sue reorganized bank and liquidation association, but can recover against reorganized bank only to extent of proportionate share of assets taken over by it. Hessen Siak Shams v. Nebraska State Bank of Bloomfield, 48 F.2d 894 (D. Neb. 1931).

5. Miscellaneous

Under facts in this case, denial of motion for continuance under section 8-195 was not erroneous. Elm Creek State Bank v. Department of Banking, 191 Neb. 584, 216 N.W.2d 883 (1974).

Department of Banking is vested with general supervision and control of state banks with authority to do all things necessary for protection of depositors therein. Brownell v. Adams, 121 Neb. 304, 236 N.W. 750 (1931).

Offense of receiving deposits when bank insolvent is not modified by statute permitting Department of Banking to operate bank as going concern. State v. Kastle, 120 Neb. 758, 235 N.W. 458 (1931).

Suit against bank being operated as going concern by Guaranty Fund Commission is not suit against the state. Svoboda v. Snyder State Bank, 117 Neb. 431, 220 N.W. 566 (1928); Metropolitan Savings Bank & Trust Co. of Pittsburgh, Pa. v. Farmers' State Bank of Rosalie, Neb., et al., 20 F.2d 775 (8th Cir. 1927).

This section summarized in reviewing statutory provisions bearing upon general supervisory power of Department of Banking over state banks. State ex rel. Davis v. Exchange Bank of Ogallala, 114 Neb. 664, 209 N.W. 249 (1926).

This section summarized in reviewing statutory provisions bearing upon duty of Department of Banking to see that banking business is conducted in safe manner and that interests of depositors are protected. State ex rel. Chamberlin v. Morehead, 99 Neb. 146, 155 N.W. 879 (1915).