A. In liquidating a state bank, the commissioner [director of the financial institutions division of the regulation and licensing department] may exercise any power thereof but he shall not, without the approval of the court in which notice of possession has been filed:

(1) sell any asset of the organization having a value in excess of five hundred dollars ($500);

(2) compromise or release any claim if the amount of the claim exceeds five hundred dollars ($500), exclusive of interest; or

(3) make any payment on any claim, other than a claim upon an obligation incurred by the commissioner [director], before preparing and filing a schedule of his determinations in accordance with the Banking Act.

B. Within six months of the commencement of liquidation, the commissioner [director] may by his election terminate any contract for services or advertising to which the state bank is a party or any obligation of the bank as a lessee. A lessor who receives sixty days notice of the commissioner's [director's] election to terminate the lease shall have no claim for rent other than rent accrued to the date of termination nor for damages for such termination.

C. As soon after the commencement of liquidation as practicable, the commissioner [director] shall take the necessary steps to terminate all fiduciary positions held by the state bank and take such action as may be necessary to surrender all property held by the bank as a fiduciary and to settle its fiduciary accounts.

D. The right of any agency of the United States insuring deposits to be subrogated to the rights of the depositors upon payment of their claim shall not be less extensive than the law of the United States requires as a condition of the authority to issue such insurance or make such payment.

E. As soon after the commencement of liquidation as practicable the commissioner [director] shall:

(1) send by mail, to the address shown on the books of the institution, a notice of the liquidation to each known depositor, creditor, lessee of a safe deposit box, bailor of property held by the bank or person interested in funds held as fiduciary by the bank;

(2) include with the liquidation notices sent by mail:

(a) to all depositors or creditors, a statement of the amount shown on the books of the institution to be due the depositor or creditor and that if the amount claimed differs from that stated, a claim must be filed with the commissioner [director] before a specified date, not earlier than sixty days nor later than ninety days thereafter, in accordance with the procedure prescribed in the notice;

(b) to all bailors or lessees of safe deposit boxes, a demand that property held by the bank as bailee or in safe deposit boxes be withdrawn within thirty days by the person entitled thereto; and

(c) to all persons interested in funds held as a fiduciary, a statement that the commissioner [director] is going to take action to resign the fiduciary position and take action to settle the fiduciary accounts;

(3) publish the notice in a newspaper of general circulation in the community once a week for three successive weeks;

(4) open all safe deposit boxes from which the contents have not been removed within thirty days after demand, deal with the contents in the manner provided for boxes upon which the payment of rental is in default, and hold the sealed packages containing the contents, together with the certified inventories for one year, unless sooner claimed by the person entitled thereto, then sell or otherwise dispose of the property and transfer the proceeds of any sale or disposition to the state treasurer as abandoned funds;

(5) hold all unclaimed property held by the bank as bailee together with a certified inventory of the property for a year, unless sooner claimed by the person entitled thereto, then sell or otherwise dispose of the property, and transfer the proceeds of any sale or disposition to the state treasurer as abandoned funds.

F. Within six months after the last day specified in the notice for the filing of claims, or a longer period allowed by the court in which the notice of possession was filed, the commissioner [director] shall:

(1) reject any claim if he doubts the validity thereof;

(2) determine the amount, if any, owing to each known creditor or depositor and the priority class of his claim under the Banking Act;

(3) prepare a schedule of his determinations for filing in the court in which notice of possession was filed;

(4) notify each person whose claim has not been allowed in full, and publish once a week for three successive weeks a notice of the time when and the place where the schedule of determinations will be available for inspection and the date, not sooner than thirty days thereafter, when the commissioner [director] will file his schedule in court.

G. Within twenty days after the filing of the commissioner's [director's] schedule, any creditor, depositor or stockholder may file an objection to any determination made. Any objections so filed shall be heard and determined by the court, upon such notice to the commissioner [director] and interested claimants as the court may prescribe. If the objection is sustained, the court shall direct an appropriate modification of the schedule. After filing his schedule, the commissioner [director] may, from time to time, make partial distribution to the holders of claims which are undisputed or have been allowed by the court, if a proper reserve is established for the payment of disputed claims. As soon as is practicable after the determination of all objections, the commissioner [director] shall make final distribution.

H. The following claims shall have priority in the order named:

(1) obligations incurred by the commissioner [director];

(2) wages and salaries of officers and employees earned during the three-month period preceding the commissioner's [director's] possession in an amount not exceeding six hundred dollars ($600) a month for any one person;

(3) fees and assessments due to the department [financial institutions division]; and

(4) deposits to the extent of one hundred dollars ($100) for each depositor.

I. After the payment of all other claims with interest at the maximum rate permitted on time deposits, the commissioner [director] shall pay claims otherwise proper which were not filed within the time prescribed. If the sum available for any class is insufficient to provide payment in full, such sum shall be distributed to the claimants in the class pro rata.

J. Any assets remaining after all claims have been paid shall be distributed to the stockholders in accordance with their respective interests.

K. Unclaimed funds remaining after completion of the liquidation shall be retained for five years by the commissioner [director] unless sooner claimed by the owner. At the expiration of such period, the remaining sum shall be transferred to the state treasurer as abandoned funds.

L. When the assets have been distributed in accordance with the Banking Act, the commissioner [director] shall file an account with the court. Upon approval of the report, the commissioner [director] shall be relieved of liability in connection with the liquidation and the charter shall be cancelled.

History: 1953 Comp., § 48-22-63, enacted by Laws 1963, ch. 305, § 63.

Bracketed material. — The bracketed material was inserted by the compiler and is not part of the law.

Cross references. — For Uniform Unclaimed Property Act (1995), see 7-8A-30 NMSA 1978.

Purpose of article. — Laws 1915, ch. 67, § 86, was passed to obviate the cumbersome and expensive method formerly prevailing, under which creditors and not the receiver enforced the stockholders' liability. Melaven v. Schmidt, 1929-NMSC-100, 34 N.M. 443, 283 P. 900; Clapp v. Smith, 1916-NMSC-048, 22 N.M. 153, 159 P. 523; Maddison v. Bryan, 1926-NMSC-007, 31 N.M. 404, 247 P. 275.

Laws 1933, ch. 32, § 1, is not a mandatory statute requiring the judicial department to appoint the state bank examiner receiver of an insolvent bank, or providing that no receiver shall be appointed by the court except upon application of the attorney general. Cooper v. Otero, 1934-NMSC-008, 38 N.M. 164, 29 P.2d 341 (decided under former law).

Statute is only a recommendation to the judiciary. — Formerly, it was held that the provision of Laws 1933, ch. 32, § 1, that the court "shall appoint the state bank examiner as such receiver" amounts to no more in an equity proceeding than a recommendation to the judiciary to appoint him; otherwise the enactment would violate N.M. Const., art. VI, § 13. Cooper v. Otero, 1934-NMSC-008, 38 N.M. 164, 29 P.2d 341.

Court aid to wind up affairs. — Under former law, it was held that no state officer has authority to wind up the affairs of an insolvent bank without the aid of a court. Cooper v. Otero, 1934-NMSC-008, 38 N.M. 164, 29 P.2d 341.

Judge with discretion as to receiver appointment. — The district judge to whom application for appointment of receiver for insolvent bank was made under Laws 1921, ch. 134, was not bound to appoint the state bank examiner receiver, but could exercise discretion and appoint another as held under former law. State ex rel. Read v. Ryan, 1922-NMSC-011, 27 N.M. 651, 204 P. 68.

Officer's power of possession only preliminary to court action. — In this state, under former law, it was held that power conferred upon the state banking officer to take possession of a state bank is only preliminary to court action, in order to give the state officer more than temporary standing. Cooper v. Otero, 1934-NMSC-008, 38 N.M. 164, 29 P.2d 341.

Receiver of insolvent bank is not representative of creditors with power to institute a suit for the recovery of the added liability of stockholders as was formerly held. Clapp v. Smith, 1916-NMSC-048, 22 N.M. 153, 159 P. 523.

Stockholders' liability enforceable by receiver. — Under Laws 1915, ch. 67, § 86, it was formerly held that statutory liability of stockholders of a bank which has failed is an asset in the hands of the receiver, who may enforce it in the course of liquidation without awaiting final determination of fact or amount of deficiency of assets. Maddison v. Bryan, 1926-NMSC-007, 31 N.M. 404, 247 P. 275.

Person maintaining suit. — Laws 1933, ch. 32, § 1, contains no direction as to the name of the person in whose name the suit shall be maintained. Cooper v. Otero, 1934-NMSC-008, 38 N.M. 164, 29 P.2d 341.

Winding up decree to be liberally construed. — It was held under former law that in a statutory proceeding to wind up an insolvent bank, a decree which was inaccurately worded should not be subjected to a fine analysis, but should be taken with the purpose of the statute in view. Cooper v. Manning, 1935-NMSC-038, 39 N.M. 206, 43 P.2d 1055.

Distribution of assets of insolvent state bank is governed by general incorporation laws. State v. Bank of Magdalena, 1928-NMSC-048, 33 N.M. 473, 270 P. 881, distinguished, State v. State Bank, 1934-NMSC-046, 38 N.M. 338, 32 P.2d 1017 (decided under former law).

Preferences and setoffs are governed by the general incorporation laws for the winding up of insolvent corporations. State v. Bank of Magdalena, 1928-NMSC-048, 33 N.M. 473, 270 P. 881, distinguished, State v. State Bank, 1934-NMSC-046, 38 N.M. 338, 32 P.2d 1017 (decided under former law).

State preference lost after receiver appointed. — It was held under former law that where a receiver has been appointed for an insolvent state bank, the state is not entitled to a preference over other creditors, as to money on deposit at the time the receiver was appointed. State v. First State Bank, 1917-NMSC-047, 22 N.M. 661, 167 P. 3, 1918A L.R.A. 394, distinguished, State v. People's Sav. Bank & Trust Co., 1917-NMSC-060, 23 N.M. 282, 168 P. 526.

Deposits of the state in an insolvent bank lose priority of payment when the assets of such bank are turned over to the hands of a receiver. State v. People's Sav. Bank & Trust Co., 1917-NMSC-060, 23 N.M. 282, 168 P. 526 (decided under former law).

Subsequent purchaser cannot engage in savings and loan business when association liquidated. — When the assets of a savings and loan association are liquidated by a receiver pursuant to an order of the court, the association is terminated and its "charter" or authority to transact business is terminated as well. Therefore, no "charter" or valid franchise remains entitling a subsequent purchaser to engage in the savings and loan business. 1981 Op. Att'y Gen. No. 81-22.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 10 Am. Jur. 2d Banks § 765.

Right of owner of check which the drawer bank held for him at time it closed its doors to a preference, 17 A.L.R. 196.

Status of Christmas club deposits as savings or as general deposit, 21 A.L.R. 1128.

Trust or preference in respect of money placed in bank for purpose of transaction with third persons, 31 A.L.R. 472, 93 A.L.R. 881.

Specified obligations, preference in respect of deposits designated for payment of, 32 A.L.R. 967.

Prerogative right of county or other political subdivision to preference, 36 A.L.R. 640, 52 A.L.R. 755, 90 A.L.R. 208.

Taxes, preference in favor of individuals as to funds deposited by them to credit of public treasurer in attempt to pay, 37 A.L.R. 130.

Clearinghouse settlement, balance due other banks on, as preferred claim against insolvent bank, 44 A.L.R. 1535.

Securities deposited in bank, rights of owners of, upon its insolvency, 51 A.L.R. 914, 84 A.L.R. 1534, 126 A.L.R. 625.

Right of holder of certified check to preference out of assets of insolvent bank, 51 A.L.R. 1034.

Right in absence of statute to preference in respect of deposit of public funds in insolvent bank, 51 A.L.R. 1336, 65 A.L.R. 690, 103 A.L.R. 621.

Prerogative right of state to preference at common law, 65 A.L.R. 1331, 90 A.L.R. 184, 167 A.L.R. 640.

Estoppel as regards claim against insolvent bank, 69 A.L.R. 456.

Depositor's right to preference in assets of insolvent bank because dissuaded by bank officials or employees from withdrawing deposit after insolvency, 80 A.L.R. 795.

Veteran's compensation or war risk insurance proceeds or pension money, preference in respect of deposit of, 83 A.L.R. 1089, 84 A.L.R. 1530.

Paper of insolvent bank, issuance or receipt of, as converting trust relation into debtor and creditor relation so as to defeat preference, 92 A.L.R. 1244.

Depositor's right to priority as based upon fact of bank's pledge of his note rendered deposit unavailable as set off against note in hands of pledgee, 162 A.L.R. 1175.

9 C.J.S. Banks and Banking § 184.