WI Stat § 220.08 (2021)
2021 Wisconsin Statutes & Annotations|Chapter 220 - Banking.|220.08 - Delinquent banks; division may take possession.

220.08  Delinquent banks; division may take possession. (1) Whenever it shall appear to the division that any bank or banking corporation to which this chapter is applicable has violated its charter or any law of the state, or is conducting its business in an unsafe or unauthorized manner, or if the capital of any such bank or banking corporation is impaired, or if any such bank or banking corporation shall refuse to submit its books, papers, and concerns to the inspection of any examiner, or if any officer thereof shall refuse to be examined upon oath touching the concerns of any such bank or banking corporation, or if any such bank or banking corporation shall suspend payment of its obligations, or if from any examination or report provided for by this chapter the division shall have reason to conclude that such bank or banking corporation is in an unsound or unsafe condition to transact the business for which it is organized, or that it is unsafe and inexpedient for it to continue business, or if any such bank or banking corporation shall neglect or refuse to observe an order of the division, specified in s. 220.07, or if the division shall find that the management of the bank or the manner in which the work of any of its officers or employees is done, if continued, is such as to endanger the safety or solvency of the bank and the division shall have made written recommendations for change in management or officers and employees and such recommendation shall not have been complied with after the expiration of a reasonable time therefor fixed by the division, the division may take possession of the property and business of such bank or banking corporation, and retain such possession until such bank or banking corporation shall resume business, or its affairs be finally liquidated as herein provided. Whenever facts have come to the attention of the division which cause the division to believe that it may be necessary or advisable to take possession of a bank, or if the division has reasonable cause to believe that any of the grounds for taking possession of a bank, specified in this section, exist, the division shall bring the matter to the attention of the banking institutions review board, reporting to them in writing the situation and the division's recommendation as to action to be taken. The banking institutions review board shall promptly consider the matter and promptly decide whether or not the division should take possession of the bank. If the review board decides that the division should take possession, the division shall forthwith take possession as hereinbefore provided. If at any time the division is confronted with an emergency situation where in the division's opinion it is imperative in order to protect the public or for other reasons that possession of the bank be at once taken, the division may do so forthwith without referring the matter to the banking institutions review board. (2) On taking possession of the property and business of any such bank or banking corporation, the division shall forthwith give notice of such fact to any and all banks or banking corporations holding or in possession of any assets of such bank or banking corporation. No bank or banking corporation knowing of such taking possession by the division, or notified as aforesaid, shall have a lien or charge for any payment, or advance, thereafter made, or liability thereafter incurred, against any of the assets of the bank or banking corporation of whose property and business the division shall have taken possession as aforesaid, except that all drafts issued and delivered against existing balances on deposit in any drawee banks or banking corporations shall be paid on presentation, if they correspond by number and amount to a list to be certified to them by the division, and if there be insufficient funds in deposit such drafts shall be preferred claims. Such bank or banking corporation may, with the consent of the division, resume business upon such conditions as may be approved by the division. (2a) The division on taking possession of a bank for liquidation shall, with the approval of the circuit court, withdraw from the general fund of such bank an amount of money deemed adequate by the division and the circuit court for the payment of current monthly expenses and set up a working fund. Such working fund shall be deposited by the division in one or more state banks in an account known as “bank liquidation account" together with like funds from other banks in liquidation. Once each month the expenses so paid from the working fund shall be approved by the circuit court. Upon such approval, the working fund of each liquidating bank shall be reimbursed from the general fund of said liquidating bank so that the balance of each working account in said bank liquidation account shall always be the amount approved by the circuit court. When a liquidating bank is ready to pay the final dividend and final expenses, the working fund assigned to the bank liquidation account shall be reassigned back to the general account of such bank. (3) Upon taking possession of the property and business of such bank or banking corporation, the division is authorized to collect moneys due to such bank or banking corporation, and do such other acts as are necessary to conserve its assets and business, and shall proceed to liquidate the affairs thereof, as hereinafter provided. The division shall collect all debts due and claims belonging to it, and, upon the order of the circuit court, may sell or compound all bad or doubtful debts, and on like order may sell all the real and personal property of such bank or banking corporation on such terms as the court shall direct. (3a) That in addition to the authority conferred by sub. (3), the division with the approval of the banking institutions review board may, for purposes of collection or liquidation, sell, assign, convey, and transfer or approve the sale, assignment, conveyance, and transfer of the assets of a closed bank or bank operating under a stabilization and readjustment agreement to any other bank or trust company under such terms and conditions as the division may deem for the best interests of the depositors and unsecured creditors of such bank. (3am) On taking possession of a bank for liquidation, the division may transfer the trust accounts of the bank to another entity with fiduciary powers. Neither the division nor the fiduciary to whom the trust accounts are transferred is liable for the past acts of the bank relating to the trust accounts. (3b) The acts of any special deputy under sub. (4) shall be binding on the division to the same extent and with like effect as if such acts were done by said division. (4) The division may appoint one or more special deputies, as agent or agents, to assist the division in the duty of reorganization, consolidation, liquidation and distribution, the certificate of appointment to be filed with the division and a certified copy in the office of the clerk of the circuit court for the county in which such bank or banking corporation is located. Such special deputies may execute, acknowledge and deliver any and all deeds, assignments, releases or other instruments necessary and proper to effect any sale and transfer or encumbrance of real estate or personal property after the same has been approved by the division, and an order obtained from the circuit court of the county in which the bank concerned is located. The division may from time to time authorize a special deputy to perform such duties connected with such reorganization, consolidation, liquidation and distribution as the division deems proper. The division may employ such counsel and procure such expert assistance and advice as may be necessary in the reorganization, consolidation, liquidation and distribution of the assets of such banks or banking corporations. The division may retain such of the officers or employees of such banks or banking corporations as necessary. (5) The division shall give notice, in such newspapers as the division may direct, by publication of a class 3 notice, under ch. 985, calling on all persons who may have claims against such bank or banking corporation, to present the same to the division, within 3 months after the date of first insertion. Such notice shall also fix a place and time (not less than 3 months after the date of first insertion) to make legal proof thereof. The division shall mail a similar notice to all persons whose names appear as creditors upon the books of the bank or banking corporation. Any creditor of such bank or banking corporation holding security of any nature, shall file a claim as a general creditor only for the amount by which the debt exceeds the value of such security. The value of said security and the amount to be allowed on the claim so filed shall, upon application of such creditor or the division and upon at least 20 days' notice to the opposing party, be determined by the circuit court of the county wherein such bank or banking corporation is located. If the division doubts the justice and validity of any claim, the division may reject the same, and serve notice of such rejection upon the claimant either by mail or personally. An affidavit of the service of such notice, which shall be prima facie evidence thereof, shall be filed with the division. An action upon a claim so rejected must be brought within 6 months after such service. Claims presented after the expiration of the time fixed in the notice to creditors shall be entitled to receive only liquidating dividends declared after presentation, unless otherwise ordered by the court. (6) Upon taking possession of the property and assets of such bank or banking corporation, the division shall make an inventory of the assets of such bank or banking corporation, in duplicate, one to be filed with the division, and one in the office of the clerk of circuit court for the county in which such bank or banking corporation is located; upon the expiration of the time fixed for the presentation of claims, the division shall make in duplicate a full and complete list of the claims presented, including and specifying such claims as have been rejected by it, one to be filed with the division, and one in the office of the clerk of circuit court for the county in which such bank or banking corporation is located. Such inventory and list of claims shall be open at all reasonable times to inspection. (7) The compensation of the special deputies, counsel, and other employees and assistants, and all expenses of supervision and liquidation, shall be fixed by the division subject to the approval of the circuit court for the county in which such bank or banking corporation is located, on notice of such bank or banking corporation, and shall upon the certificate of the division be paid out of the funds of such bank or banking corporation in the hands of the division. Expenses of supervision and liquidation shall include the cost of services rendered by the division to the bank or banking corporation being liquidated and the division shall the first of each month determine such cost in the manner hereinafter provided, which cost shall be charged to each bank in liquidation and the same shall be paid to the division as other expenses of liquidation are paid. The amount of the aforesaid supervision cost to be paid by each bank in liquidation shall be determined by taking that portion of the total supervision cost of all banks in liquidation for the preceding month, which the total book value of the unliquidated book assets of each said bank bears to the total book value of all the unliquidated book assets of every bank in liquidation. In making computations for each month the total supervision cost and all book values of unliquidated assets shall be determined as of the last business day of the preceding month. The moneys collected by the division shall be from time to time deposited in one or more state banks, and, in case of the suspension or insolvency of the depository, such deposits shall be preferred before all other deposits. (8) At any time after the expiration of the date fixed for the presentation of claims, the division may out of the funds remaining in the division's possession after the payment of expenses declare one or more dividends, and after the expiration of one year from the first publication of notice to creditors, the division may declare a final dividend, such dividends to be paid to such persons, and in such amounts, and upon such notice, as may be directed by the circuit court for the county in which such bank or banking corporation is located. Objections to any claim not rejected by the division may be made by any party interested by filing a copy of such objections with the division, which shall present the same to the circuit court at the time of the next application to declare a dividend. The court may if deemed advisable provide for the setting aside of a sum sufficient to pay all or any part of the dividends due on any unproved or unclaimed deposits. (9) Whenever any such bank or banking corporation, of whose property and business the division has taken possession, as aforesaid, deems itself aggrieved thereby, it may, at any time within 10 days after such taking possession, apply to the circuit court for the county in which such bank or banking corporation is located to enjoin further proceedings; and said court, after citing the division to show cause why further proceedings should not be enjoined and hearing the allegations and proofs of the parties and determining the facts may, upon the merits dismiss such application or enjoin the division from further proceedings, and direct the division to surrender such business and property to such bank or banking corporation. Said bank or banking corporation may, if it desires so to do, within 10 days after taking possession apply to the banking institutions review board to review the action of the division in taking possession. The banking institutions review board shall act speedily on such application. Within 10 days after notice of the decision of the banking institutions review board, said bank or banking corporation may apply to said circuit court of the county in which such bank or banking corporation is located to enjoin further proceedings. The proceedings on such application shall be on notice to the division and shall be the same as where the application to the court is made as above provided without application to the review board. (10) Whenever the division has paid to every depositor and creditor of such bank or banking corporation (not including stockholders), whose claims as such creditor or depositor have been duly proved and allowed, the full amount of such claims, and has made proper provision for unclaimed and unpaid deposits or dividends, and has paid all the expenses of the liquidation, the division shall call a meeting of the stockholders of such bank or banking corporation by giving notice thereof by certified mail and by publication of a class 2 notice, under ch. 985, in the county where such bank or banking corporation is located. At such meeting the stockholders shall determine whether the division shall be continued as liquidator and shall wind up the affairs of such bank or banking corporation, or whether an agent or agents shall be elected for that purpose, and in so determining the said stockholders shall vote by ballot, in person or by proxy, each share of stock entitling the holder to one vote, and the majority of the stock shall be necessary to a determination. (11) In case it is determined to continue the liquidation under the division, the division shall complete the liquidation of the affairs of such bank or banking corporation, and after paying the expenses thereof, shall distribute the proceeds among the stockholders in proportion to the several holdings of stock in such manner and upon such notice as may be directed by the circuit court. In case it is determined to appoint an agent or agents to liquidate, the stockholders shall thereupon select such agent or agents by ballot, a majority of the stock present and voting, in person or by proxy, being necessary to a choice. Such agent or agents shall execute and file with the division a bond to the people of the state in such amount, with such sureties and in such form as shall be approved by the division, conditioned for the faithful performance of all the duties of the agent's or the agents' trust, and thereupon the division shall transfer and deliver to such agent or agents all the undivided or uncollected or other assets of such bank or banking corporation then remaining in the division's possession; and upon such transfer and delivery, the division shall be discharged from any and all further liability to such bank or banking corporation and its or their creditors. (12) Such agent or agents shall convert the assets coming into the agent's or agents' possession into cash, and shall account for and make distribution of the property of said bank or banking corporation, as is herein provided in the case of distribution by the division, except that the expenses thereof shall be subject to the direction and control of the circuit court. In case of the death, removal, or refusal to act of any such agent or agents, the stockholders, on the same notice, to be given by the division upon proof of such death, removal, or refusal to act being filed with it, and by the same vote hereinbefore provided, may elect a successor, who shall have the same powers and be subject to the same liabilities and duties as the agent originally elected. (13) The division shall deposit dividends and unclaimed deposits which have been provided for and which remain unpaid in the hands of the division for 6 months after the order for final distribution in one or more state banks, to the credit of the division, in trust for the several depositors with and creditors of the liquidated bank or banking corporations from which they were received. The division's annual report under s. 220.14 shall include the names of banks or banking corporations so taken possession of and liquidated and the sums of unclaimed and unpaid deposits or dividends with respect to each of them respectively. (14) The division may pay the moneys held by the division to the persons entitled to them, upon being furnished satisfactory evidence of their right to the same. In cases of doubt or conflicting claims, the division may require an order of the circuit court authorizing and directing the payment thereof. The division may apply the interest earned towards defraying the expenses in the payment and distribution of such unclaimed deposits or dividends to the depositors and creditors entitled to receive them, and if necessary may draw on the fund to defray such expenses. After one year from the time of the order for final distribution, the division shall report and deliver all unclaimed funds to the secretary of revenue as provided in ch. 177. All claims subsequently arising shall be presented to the division. If the division determines that any claim should be allowed, the division shall certify to the department of administration the name and address of the person entitled to payment and the amount thereof and shall attach the claim to the certificate. The secretary of administration shall certify the claim to the secretary of revenue for payment.  (15) Whenever the division, with a view of restoring the solvency of any bank of which the division has taken charge pursuant to law, shall approve a reorganization plan entered into between the depositors and unsecured creditors of such bank and the bank or reorganizers thereof, which represent 80 percent of the amount of deposits and unsecured claims of such banks, then and in such case all other depositors and unsecured creditors shall be held to be subject to such agreement to the same extent and with the same effect as if they had joined in the execution thereof, and their claims shall be treated in all respects as if they had joined in the execution of such articles or reorganization plan in the event of restoration of such bank to solvency, and the reopening of the same for business. The investment board and the governing board of any county, city, village, town, drainage district, power district, school district, sewer district, or other governmental subdivision, or any commission, committee, board, or officer thereof, having any funds on deposit at the time of the closing of the bank are authorized to join in any reorganization plan, if, in the judgment of such investment board or other governing board, the reorganization plan is in the best interests of all persons concerned. All deposits made in any state bank subsequent to June 3, 1927 shall be subject to the conditions hereof.  (16) Whenever the division is informed, within 10 days after the division has taken charge of a bank pursuant to law, that a plan for the reorganization of such bank is being considered, the division may refrain from complying with any or all of the provisions of this section for such time as the division deems advisable, but for not more than 40 days after the division has taken charge of said bank. The approval by the division and the acceptance by the depositors and unsecured creditors of a reorganization plan within the time specified as provided in sub. (15), shall operate to relieve the division of the duties and liabilities provided by this section in the case of liquidation of banks. (17) Whenever it shall appear to the division that the books and records of any liquidated bank or banking corporation or segregated trust are no longer required by the division, the division may make application to the circuit court having jurisdiction of such liquidated bank or banking corporation or segregated trust for an order determining what books and records are to be kept and what destroyed, stating in such application the division's recommendations thereon. Said circuit court shall thereupon enter an order determining what books and records shall be kept and what shall be destroyed. The books and records ordered preserved shall be delivered to the clerk of such court to be kept by him or her until further order of the court. Following the expiration of the retention period provided in SCR chapter 72, the circuit court shall submit to the historical society copies of the division's application and the court order determining what books and records have been kept. On subsequent application of the historical society the court may order delivery to the society of such books and records as the society deems of permanent historical significance and the destruction of the balance, whether or not any such records have been photographed or microphotographed. (18) Whenever any bank or banking corporation has been completely liquidated, the division shall and is hereby authorized to cancel the charter of such bank or banking corporation. (19) Segregated trusts heretofore or hereafter created in connection with the stabilization and readjustment or reorganization of a bank shall be administered and liquidated under the supervision of the division and the circuit court of the county in which the bank is located.(a) The trustees shall be confirmed by the circuit court of the county wherein such bank is located and shall be subject to removal by said court.(b) The administration and liquidation of such trust shall be subject to the supervision of the division and as far as practicable shall be subject to the approval of the circuit court of the county wherein such bank is located in the same manner and to the same extent as is the administration of banks in liquidation under the provisions of this section.(c) The division shall make such examinations of the books, records and assets of such trust as the division deems necessary and shall submit copies of such examinations to the trustees and to the circuit court. The cost of such examinations and the cost of the supervision rendered by the division, which cost shall be determined by the division, shall be a charge against the trust and shall be paid as an expense of administration.(d) The trustees of such trust shall be known collectively as “the trustees of the segregated trust of (name of bank)" and in that name may sue and be sued and perform the duties imposed on them by law and the provisions of the agreement or court order creating such trust. A certificate issued by the division shall be sufficient proof of the creation of such trust, of the appointment and qualification of the persons named therein to act as trustees and of the powers of the trustees. (20) In the event the division, as statutory receiver of closed state banks or in connection with the division's supervision of segregated trusts, shall have possession of any funds or property by reason of any recovery on an official bond or otherwise, and said funds shall not belong to or be attributable to any specific bank or banks in liquidation or to any specific segregated trust or trusts and it shall appear that all or a number of banks in liquidation or all or a number of the segregated trusts supervised by the division or the depositors or other creditors of such banks or trusts, may have an interest in such funds or property, the division may petition the circuit court for Dane County for an order directing the disposition of such funds or property. The court, upon presentation of such a petition, shall direct the division to give such notice of hearing thereon, by publication of a class 3 notice, under ch. 985, or otherwise, as appears reasonable under the circumstances. The expenses of the division in any such proceeding shall be paid out of such funds or property. If it shall appear to the court that the persons to whom such funds or property may ultimately belong cannot be found or ascertained or that the expense of such ascertainment would in the judgment of the court be excessive or unreasonable under all the circumstances, the court shall enter an order directing the division to transmit such funds or property to the secretary of revenue to become the property of the state. Any person claiming an interest in any such funds or property so ordered to be transmitted to the secretary of revenue may within 5 years after the entry of such order bring suit against the state for recovery thereof without interest.  (20a) After liquidation of the assets of a delinquent bank, any remaining assets, including all unknown and undiscovered assets in the custody of the division, shall, after approval of the circuit court having jurisdiction thereof, be retained by the division which is authorized and empowered to hold such assets, claims and demands with the full right and power to compound, compromise, settle and assign the same with full authority to execute and deliver any legal instruments incidental thereto without further court approval. Any moneys or proceeds received therefrom shall be paid into the general fund of the state of Wisconsin after the division has first deducted therefrom the costs of the division's services and other expenses incidental thereto.History:  1983 a. 408, 524; 1985 a. 127; Sup. Ct. Order, 136 Wis. 2d xi (1987); 1991 a. 316; 1995 a. 27, 336; 2009 a. 177; 2013 a. 20; 2019 a. 65.Cross-reference:  See ch. 177 for disposition of unclaimed funds.