220.04 Powers of division.

(1)

(a) The division shall examine at least once every 18 months the cash, bills, collaterals, securities, assets, books of account, condition, and affairs of each bank and trust company bank doing business in this state, except national banks. For that purpose the division may examine on oath any of the officers, agents, directors, clerks, stockholders, customers, or depositors thereof, touching the affairs and business of such institution. In conducting examinations under this paragraph, the division may accept and rely on information collected by other agencies or independent 3rd parties in determining whether a bank or trust company bank has satisfied any requirement that is part of the examination. In making such examinations of banks, the division shall determine the fair valuation of all assets in accordance with the schedules, rules, and regulations prescribed by the banking institutions review board.

(b) In lieu of any examination required to be made by the division, the division may accept any examination that may have been made of any bank or trust company bank within a reasonable period by a bank supervisory agency, as defined in s. 221.0901 (2) (d), if a copy of the examination is furnished to the division.

(2) The division shall examine, or cause to be examined, any bank when requested by the board of directors of such bank. The division shall also ascertain whether such bank transacts its business at the place designated in the articles of incorporation, and whether its business is conducted in the manner prescribed by law.

(3) The division may, in the performance of official duties, issue subpoenas and administer oaths. In case of any refusal to obey a subpoena issued by the division, the refusal shall be reported at once to the circuit court of the circuit in which the bank is located. The court shall enforce obedience to the subpoena in the manner provided by law for enforcing obedience to subpoenas of the court.

(4) Whenever the division is of the opinion that the loaning, investing, or other banking policies or practices of any officer or director of any bank have been prejudicial to the best interests of such bank or its depositors, or that such policies or practices, if put into operation or continued, will endanger the safety or solvency of said bank or impair the interests of its depositors, the division may, with the approval of the banking institutions review board, request the removal of such officer or director. Such request shall be served on the bank and on such officer or director in the manner provided by law for serving a summons in a court of record or shall be transmitted to said bank and officer or director by registered mail with return receipt requested. If such request for removal is not complied with within a reasonable time fixed by the division, the division may by order, with like approval of the banking institutions review board, remove such officer or director, but no order of removal shall be entered until after an opportunity for hearing before the banking institutions review board is given to such officer or director upon not less than 10 days' notice. An order of removal shall take effect as of the date issued. A copy of such order shall be served upon the bank and upon such officer or director in the manner provided by law for service of a summons in a court of record or by mailing such copy to the bank or officer or director at the bank's or officer's or director's last-known post-office address. Any removal under this subsection shall be effective in all respects the same as if made by the board of directors or stockholders of said bank. Any officer or director removed from office under the provisions of this subsection shall not be reelected as an officer or director of any bank without the approval of the division and the banking institutions review board. An order of removal under this subsection shall be deemed a final order or determination of the banking institutions review board within the meaning and contemplation of s. 220.035 (3).

(5) The division, in connection with the liquidation of any bank or banking corporation or when called upon to approve any plan of reorganization and stabilization thereof or when the division is satisfied the interests of the depositors and creditors in assets held under any trust arrangement so require in connection with such reorganization and stabilization, may cause the bank or banking corporation or trust to be audited. The expense of the audit shall, upon the certificate of the division, be refunded forthwith to the division by the bank, banking corporation or the trustees out of the assets of the bank, banking corporation or trust. Such charges shall be a preferred claim against the assets.

(6)

(a) The division, with the approval of the banking institutions review board, may establish uniform savings rules which shall be adopted by every bank and trust company bank. Such rules may provide the conditions under which banks or trust company banks may accept deposits.

(b) In times of financial distress, the commissioner with the approval of the banking institutions review board may by order restrict the withdrawal of any class of deposits in any bank or trust company bank. The pendency of any proceeding for review of such order shall not stay or suspend the operation of such order.

(d) The division, with the approval of the banking institutions review board, may establish rules regulating the kind and amount of foreign bonds or bonds and securities offered for sale by the international bank for reconstruction and development, the inter-American development bank, the international finance corporation, the African development bank and the Asian development bank which state banks and trust company banks may purchase, except that such rules shall not apply to bonds and securities of the Canadian government and Canadian provinces, which are payable in American funds.

(7)

(a) In this subsection:

1. “Fiduciary operation" has the meaning designated under s. 223.105 (1) (a).

2. “Fiduciary property" means that property held by an organization as trustee or in any fiduciary capacity requiring the issuance of letters by a court or probate registrar in this state.

3. “Organization" has the meaning designated under s. 223.105 (1) (b).

(b) The division may, with the approval of the banking institutions review board, establish uniform rules regulating organizations engaging in fiduciary operations. Such rules may:

1. Authorize the division or any other state agency having jurisdiction over the organization to require the organization to submit periodic reports, in such form and containing such information as the division may prescribe, regarding the organization's fiduciary operations.

2. Require the organization to maintain separate books of account for its fiduciary operations and to maintain fiduciary property separate from the property of the organization.

3. Require the organization to maintain reasonable safeguards to protect fiduciary property including the maintenance of an indemnity fund in the same manner as that required of trust company banks under s. 223.02 (1).

(8) Unless the division is expressly restricted by statute from acting under this subsection with respect to a specific power, right, or privilege, the division by rule may, with the approval of the banking institutions review board, authorize state banks to exercise any power under the notice, disclosure, or procedural requirements governing national banks or to make any loan or investment or exercise any right, power, or privilege permitted national banks under federal law, regulation, or interpretation. Notice, disclosure, and procedures prescribed by statute which may be modified by a rule adopted under this subsection include, but are not limited to, those provided under s. 138.056. A rule adopted under this subsection may not affect s. 138.041 or chs. 421 to 428 or restrict powers specifically granted state banks under this chapter or ch. 221 or 224.

(9)

(a) Definitions. In this subsection:

1. “Official" means a director, officer, employee or agent of a regulated entity or any other person which participates in the conduct of the affairs of a regulated entity.

2. “Regulated entity" means a bank, universal bank, trust company bank, and any other entity that is described in s. 220.02 (2) or 221.0526 as under the supervision and control of the division.

(b) Notice of hearing. The division may serve a notice of a hearing which complies with s. 227.44 (1) and (2) on an official or regulated entity if, as a result of an examination or report made to the division, the division determines any of the following:

1. The official or regulated entity is violating or is about to violate the banking laws of this state or any rule or order issued by the division.

2. The regulated entity is being operated in an unsafe or unsound manner.

3. An official is violating or is about to violate a written condition which the division imposed in connection with granting an application or request by the regulated entity, or a written agreement entered into with the division.

(c) Conduct of hearing. A hearing under par. (b) shall be conducted in the manner specified for a contested case, as defined in s. 227.01 (3), under ss. 227.44 to 227.50.

(d) Cease and desist order. If the recipient of a notice of hearing fails to appear or if upon the record made at the hearing the division finds that a violation or unsafe or unsound practice has been established, the division may issue and serve on the official or regulated entity an order to cease and desist from the violation or practice. The order may require the official or regulated entity to correct the conditions resulting from the violation or practice. An order issued under this paragraph is effective upon service on the official or regulated entity named in the order and may be appealed under s. 220.035.

(e) Temporary order.

1. If the division finds that a violation or practice described in par. (b) is likely to cause insolvency or substantial dissipation of assets or earnings of the regulated entity or seriously prejudice the interests of its depositors, the division may issue a temporary order requiring the official or regulated entity named in the notice of hearing to cease and desist from the violation or practice and to take affirmative action to prevent insolvency, dissipation of assets or earnings or prejudice to depositors pending completion of the proceedings. The temporary order is effective upon service on the official or regulated entity named in the notice of hearing and remains effective and enforceable pending completion of the administrative proceedings unless suspended, set aside or limited by a court as provided in subd. 2.

2. Within 20 days after an official or regulated entity is served with a temporary order under subd. 1., the official or regulated entity may apply to the circuit court for the county within which the regulated entity is located for an injunction setting aside, limiting or suspending the enforcement of the order pending the completion of the administrative proceeding.

(f) Forfeitures.

1. As part of an order issued under par. (d), the division may impose a forfeiture of up to $10,000 for each violation or practice under par. (b).

2. An official or regulated entity who violates an order issued under par. (d) shall, for each violation, forfeit not more than $1,000 per day for each day the violation continues. Assessment of a forfeiture under this subdivision shall commence on the latest of 10 days after the date of delivery of the order or, if an appeal is taken under s. 220.035, 10 days after the date of the decision of the banking institutions review board.

(g) Enforcement. The division may institute proceedings to recover a forfeiture under par. (f) or to enjoin the violation of an order issued under par. (d) and, after notice and opportunity for a hearing as provided in sub. (4), may order the removal of an official who commits a violation or engages in a practice under par. (b) or who violates an order issued under par. (d), if the division finds that the practice or violation involves personal dishonesty resulting in financial gain to the official or demonstrates a willful or continuing disregard for the safety or soundness of the regulated entity, and the division finds any of the following:

1. As a result of the practice or violation the regulated entity has suffered or will probably suffer substantial financial loss or other damage.

2. The interests of the depositors could be seriously prejudiced by the violation or practice.

(10) If it appears to the division that a person has engaged or is about to engage in an act or practice constituting a violation of the laws of this state relating to banks and banking, including this chapter, chs. 217, 218 and 221 to 224 and ss. 138.09, 138.12, and 138.14, or a rule promulgated or order issued under those laws, the division may bring an action in the name of the state in the circuit court of the appropriate county to enjoin the acts or practices and to enforce compliance with the laws, rules or orders, or the division may refer the matter to the district attorney of the appropriate county or, if the alleged violation may be enforced by the attorney general under sub. (12) or s. 220.12, 221.1005 or 224.06 (7) or is statewide in nature, to the attorney general. Upon a proper showing, the court may grant a permanent or temporary injunction or restraining order, appoint a receiver for the defendant or the defendant's assets or order rescission of any acts determined to be unlawful. The court may not require the division to post a bond.

(11) In order to carry out ss. 220.07, 220.08 and 221.1005, the division may commence and maintain in the division's name any and all actions necessary or proper to enforce any of said sections.

(12) If the division has information that causes the division to believe that any bank, trust company bank, or any other person subject in whole or in part to supervision or control by the division, or any officer, employee, member, or manager thereof, has violated any law, rule, or order that subjects the person to prosecution for a criminal offense or to a penalty, the division shall bring such information to the attention of the banking institutions review board, with the division's recommendation in writing as to action to be taken. The banking institutions review board shall, if in its judgment probable cause exists for believing that a criminal offense has been committed, or a penalty incurred, call the facts and information to the attention of the attorney general whose duty it shall be to cause prosecution or other action to be instituted if, in the attorney general's judgment, the facts warrant. This subsection does not prevent the institution of any prosecution by any district attorney of this state with or without any advice or act on the part of the attorney general. This subsection does not preclude the division, in any case where the division deems it important to act immediately, from causing any arrest and prosecution where the division is satisfied that there is reason to believe the offense has been committed and that prosecution should be immediately commenced.

History: 1971 c. 239; 1975 c. 65; 1981 c. 45; 1983 a. 119; 1987 a. 252; 1991 a. 221, 269, 315, 316; 1993 a. 213; 1995 a. 27, 55, 336; 1997 a. 35, 146; 2003 a. 63; 2005 a. 215; 2009 a. 405; 2017 a. 340; 2019 a. 65.

A hearing examiner had the discretion under sub. (9) (d) to correct conditions resulting from the plaintiff's unlicensed operation as an adjustment service company in violation of s. 218.02 (2) (a) 1. An order that the plaintiff disgorge itself of fees paid to the plaintiff by Wisconsin debtors that the plaintiff was not legally entitled to collect was a reasonable conclusion consistent with s. 218.02 (2) (a) 1. and supported by the facts of record. Morgan Drexen, Inc. v. DFI, 2015 WI App 27, 361 Wis. 2d 271, 862 N.W.2d 329, 14-1268.