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H0524aaS........................................................by BUSINESS BANKING - LOANS/EXTENSIONS OF CREDIT - Amends and repeals existing law relating to banking to revise definitions; to revise provisions applicable to real estate loans offered by banks; to repeal sections applicable to mortgage insurance, government guaranteed loans, commercial loans and construction loans; to provide that the total loans and extensions of credit to persons shall be limited; to provide that certain items do not constitute loans or extensions of credit; to exempt certain loans or extensions of credit from lending limits; to provide for the combination of loans or extensions of credit under certain outlined conditions; to provide for calculation of lending limits; to set forth conditions under which loans shall be considered nonconforming; and to provide that banks shall not invest in certain real estate holdings in amounts greater than fifty percent of the capital structure of the bank. 01/22 House intro - 1st rdg - to printing 01/23 Rpt prt - to Bus 02/04 Rpt out - rec d/p - to 2nd rdg 02/05 2nd rdg - to 3rd rdg 02/09 3rd rdg - PASSED - 68-0-2 AYES -- Andersen, Barraclough, Barrett, Bauer, Bayer, Bedke, Bell, Black, Block, Boe, Bolz, Bradford, Campbell, Cannon, Clark, Collins, Cuddy, Deal, Denney, Douglas, Eberle, Edmunson, Ellsworth, Eskridge, Field(18), Field(23), Gagner, Garrett, Harwood, Henbest, Jaquet, Jones, Kellogg, Kulczyk, Lake, Langford, Langhorst, Martinez, McKague, Meyer, Miller, Mitchell, Moyle, Naccarato, Nielsen, Pasley-Stuart, Raybould, Ridinger, Ring, Ringo, Roberts, Robison, Rydalch, Sali, Sayler, Schaefer, Shepherd, Shirley, Skippen, Smith(30), Smith(24), Smylie, Snodgrass, Stevenson, Trail, Wills, Wood, Mr. Speaker NAYS -- None Absent and excused -- Crow, McGeachin Floor Sponsor - Meyer Title apvd - to Senate 02/10 Senate intro - 1st rdg - to Com/HuRes 02/20 Rpt out - to 14th Ord 03/02 Rpt out amen - to 1st rdg as amen 03/03 1st rdg - to 2nd rdg as amen 03/04 2nd rdg - to 3rd rdg as amen 03/10 3rd rdg as amen - PASSED - 34-0-1 AYES -- Andreason(Andreason), Bailey, Bunderson, Burkett, Burtenshaw, Calabretta, Cameron, Compton, Darrington, Davis, Gannon, Geddes, Goedde, Hill, Ingram, Kennedy, Keough, Little, Lodge, Malepeai, Marley, McKenzie, McWilliams, Noble, Noh, Pearce, Richardson, Schroeder, Sorensen, Stegner, Stennett, Sweet, Werk, Williams NAYS -- None Absent and excused -- Brandt Floor Sponsor - Cameron Title apvd - to House 03/11 House concurred in Senate amens - to engros 03/12 Rpt engros - 1st rdg - to 2nd rdg as amen 03/15 2nd rdg - to 3rd rdg as amen 03/16 3rd rdg as amen - PASSED - 66-0-4 AYES -- Andersen, Barrett, Bauer, Bayer, Bedke, Bell, Black, Block, Boe, Bolz, Bradford, Campbell, Cannon, Clark, Collins, Crow, Cuddy, Deal, Denney, Douglas, Eberle, Edmunson, Ellsworth, Field(18), Field(23), Gagner, Garrett, Harwood, Henbest, Jaquet, Jones, Kellogg, Kulczyk, Lake, Langford, Langhorst, Martinez, McGeachin, Meyer, Miller, Mitchell, Moyle, Naccarato, Nielsen, Pasley-Stuart, Raybould, Ridinger, Ring, Ringo, Roberts, Robison, Rydalch, Sali, Sayler, Schaefer, Shepherd, Shirley, Skippen, Smith(30), Smith(24), Smylie, Stevenson, Trail, Wills, Wood, Mr. Speaker NAYS -- None Absent and excused -- Barraclough, Eskridge, McKague, Snodgrass Floor Sponsor - Meyer Title apvd - to enrol 03/17 Rpt enrol - Sp signed 03/18 Pres signed - To Governor 03/23 Governor signed Session Law Chapter 159 Effective: 07/01/04
]]]] LEGISLATURE OF THE STATE OF IDAHO ]]]] Fifty-seventh Legislature Second Regular Session - 2004IN THE HOUSE OF REPRESENTATIVES HOUSE BILL NO. 524 BY BUSINESS COMMITTEE 1 AN ACT 2 RELATING TO BANKS AND BANKING; AMENDING SECTION 26-106, IDAHO CODE, TO REVISE 3 DEFINITIONS AND TO MAKE TECHNICAL CORRECTIONS; AMENDING SECTION 26-703, 4 IDAHO CODE, TO REVISE PROVISIONS APPLICABLE TO REAL ESTATE LOANS OFFERED 5 BY BANKS; REPEALING SECTIONS 26-704, 26-705, 26-706 AND 26-707, IDAHO 6 CODE, RELATING TO MORTGAGE INSURANCE, GOVERNMENT GUARANTEED LOANS, COMMER- 7 CIAL LOANS AND CONSTRUCTION LOANS; AMENDING SECTION 26-708, IDAHO CODE, TO 8 REDESIGNATE THE SECTION AND TO MAKE TECHNICAL CORRECTIONS; AMENDING SEC- 9 TION 26-709, IDAHO CODE, TO REDESIGNATE THE SECTION, TO PROVIDE THAT THE 10 TOTAL LOANS AND EXTENSIONS OF CREDIT TO PERSONS SHALL BE LIMITED, TO 11 DEFINE "LOANS AND EXTENSIONS OF CREDIT," TO PROVIDE THAT CERTAIN ITEMS DO 12 NOT CONSTITUTE LOANS OR EXTENSIONS OF CREDIT, TO EXEMPT CERTAIN LOANS OR 13 EXTENSIONS OF CREDIT FROM LENDING LIMITS, TO PROVIDE FOR THE COMBINATION 14 OF LOANS OR EXTENSIONS OF CREDIT UNDER CERTAIN OUTLINED CONDITIONS, TO 15 DEFINE TERMS, TO PROVIDE FOR CALCULATION OF LENDING LIMITS, TO SET FORTH 16 CONDITIONS UNDER WHICH LOANS SHALL BE CONSIDERED NONCONFORMING, TO PROVIDE 17 CORRECT TERMINOLOGY AND TO MAKE TECHNICAL CORRECTIONS; AMENDING SECTION 18 26-710, IDAHO CODE, TO REDESIGNATE THE SECTION; AMENDING SECTION 26-711, 19 IDAHO CODE, TO REDESIGNATE THE SECTION AND TO PROVIDE THAT BANKS SHALL NOT 20 INVEST IN CERTAIN REAL ESTATE HOLDINGS IN AMOUNTS GREATER THAN FIFTY PER- 21 CENT OF THE CAPITAL STRUCTURE OF THE BANK AND TO MAKE A TECHNICAL CORREC- 22 TION; AMENDING SECTIONS 26-712, 26-713, 26-714, 26-715 AND 26-716, IDAHO 23 CODE, TO REDESIGNATE THE SECTIONS; AMENDING SECTION 26-717, IDAHO CODE, TO 24 REDESIGNATE THE SECTION AND TO MAKE TECHNICAL CORRECTIONS; AMENDING SEC- 25 TIONS 26-718 AND 26-719, IDAHO CODE, TO REDESIGNATE THE SECTIONS; AMEND- 26 ING SECTION 26-801, IDAHO CODE, TO REVISE TERMINOLOGY REFERRING TO THE 27 CAPITAL STRUCTURE OF BANKS AND TO MAKE TECHNICAL CORRECTIONS; AND AMENDING 28 SECTION 26-107, IDAHO CODE, TO PROVIDE CORRECT CODE CITATIONS. 29 Be It Enacted by the Legislature of the State of Idaho: 30 SECTION 1. That Section 26-106, Idaho Code, be, and the same is hereby 31 amended to read as follows: 32 26-106. DEFINITIONS. As used in this act, unless the context or subject 33 matter otherwise requires: 34 (1) "Bank" means any person engaged in soliciting, receiving or accepting 35 money or its equivalent on deposit as a regular business whether or not such 36 deposit, however evidenced, is made subject to check or draft or other order. 37 (2) "Banking business" means the soliciting, receiving or accepting of 38 money or its equivalent on deposit as a regular business whether such deposit 39 is made subject to check or draft or is evidenced by a certificate of deposit, 40 a passbook, a note, a receipt, or other writing; provided, that nothing herein 41 shall apply to or include money or its equivalent left in escrow or left with 42 an agent pending investment in real estate or securities for or on account of 43 his principal. 2 1 (3) "Banking facility" means a place of business of a bank which performs 2 activities limited to: 3 (a)tTaking applications for loans, accepting deposits, issuing receipts 4 therefor, and transmitting such deposits to the bank maintaining such 5 facility; 6 (b)cCarrying and disbursing cash change, cashing checks, accepting 7 checks; 8 (c)iIssuing checks drawn on or certified by the bank operating the 9 facility, renting safety deposit boxes, keeping necessary accounts of all 10 transactions; and carrying out such other transactions as the director may 11 allow by regulation. 12 (4) "Bank service corporation" means a corporation organized to perform 13 bank services for two (2) or more banks, each of which owns part of the capi- 14 tal stock of such corporation, and which are subject to examination by either 15 the department of finance of the state of Idaho or a federal bank supervisory 16 agency. 17 For the purpose of this definition "bank services" means services such as 18 check and deposit sorting and posting, computation and posting of interest and 19 other credits and charges, preparation and mailing of checks, statements, 20 notices, and similar items, or any other clerical, bookkeeping, accounting, 21 statistical, or similar functions performed for a bank. 22 (5) "Borrowing" means any nondeposit liability. 23 (6) "Branch" means any location except a bank facility or customer-bank 24 communication terminal or bank service corporation at which a bank performs 25 any or all functions of a bank. 26 (7) "Capital" means the amount of unimpaired paid-up common stock plus 27 the amount of paid-up preferred stock issued and unimpaired. 28 (8) "Capital note" means a convertible or nonconvertible note of a bank 29 subordinated as to principal and interest to the depositors of the bank and 30 containing such conditions as the director may require. 31 (9) "Capital structure" means the total of the capital, surplus, undi- 32 vided profits and subordinated capital notes and contingency reserves of the 33 bank or such other account as determined by the director of the department of 34 finance, less intangible assets. 35 (10) "Common stock" means the stock of a banking corporation other than 36 preferred stock. 37 (11) "Commercial paper" means a short term negotiable instrument arising 38 out of a commercial transaction; provided, however, that commercial paper 39 shall not be construed to be a deposit as defined in this act. 40 (12) "Converting bank" means a bank converting from a state to a national 41 bank, or the reverse. 42 (13) "Demand deposit" means all deposits except time deposits. 43 (14) "Deposit" means the act of placing or lodging money in the custody of 44 a person, for safety or convenience whether interest-bearing or not, to be 45 withdrawn at the will of the depositor or under rules, terms and regulations 46 agreed upon by the depositor and the depository. If the context requires, 47 deposit may also mean the money so deposited or the credit the depositor 48 receives for it. 49 (15) "Depositor" means any person who deposits money. 50 (16) "Director" means the director of the department of finance. 51 (17) "Dissenting stockholder" means a stockholder dissenting and voting 52 his dissent as provided in this act. 53 (18) "Executive officer" means each officer of a bank, who by virtue of 54 his position, has both voice in the formulation of the policy of the bank and 55 responsibility for the implementation of such policy. 3 1 (19) "Federal funds" means member bank deposits at federal reserve banks. 2 (20) "Federal reserve act" means and includes the act of congress of the 3 United States approved December 23, 1913, as amended. 4 (21) "Federal reserve bank" means a federal reserve bank created and orga- 5 nized under the authority of the Federal Reserve Act. 6 (22) "Federal reserve board" means the board of governors of the Federal 7 Reserve System created and described in the Federal Reserve Act. 8 (23) "Federal bank supervisory agency" means the comptroller of the cur- 9 rency, the board of governors of the Federal Reserve System, or the board of 10 directors of the Federal Deposit Insurance Corporation. 11 (24) "Fiduciary" means trustee, agent, executor, administrator, personal 12 representative, committee, guardian or conservator for a minor or other incom- 13 petent person, receiver, trustee in bankruptcy, assignee for creditors or any 14 holder of a similar position of trust. 15 (25) "Member bank" means any national bank or state bank which has become 16 or which becomes a member of one (1) of the federal reserve banks created by 17 the Federal Reserve Act. 18 (26) "Merger" means the union of two (2) or more bank corporations by the 19 transfer of property of all to one (1) of them. As used in this act "merger" 20 includes a consolidation. 21 (27) "Merging bank" means a party to a merger. 22 (28) "Mobile facility" means a banking facility which is moved from place 23 to place and not permanently attached to real property. 24 (29) "National bank" means a bank organized under the laws of the United 25 States and issued an organization certificate by the comptroller of the cur- 26 rency. 27 (30) "Net demand deposits" means the total of the bank's demand deposits 28 after subtracting from the deposit balance due to any bank the deposit balance 29 due from the same bank (other than trust funds deposited by either bank) and 30 any cash items in the process of collection due from or due to such banks 31 shall be included in determining such net balance, except that balances of 32 time deposits of any bank and any balances standing to the credit of private 33 banks, of banks in foreign countries, of foreign branches of other American 34 banks, and of American branches of foreign banks shall be reported gross with- 35 out any such subtraction, and excluding any deposits received in any office of 36 the bank for deposits in any other office of the bank. The amount of trust 37 funds held in the bank's own trust department, which the bank keeps segregated 38 and apart from its general assets and does not use in the conduct of its busi- 39 ness, shall not be included as net deposits. 40 (31) "Net profits" means profits remaining after the deduction of all 41 expenses including depreciation, losses, or doubtful assets, as required by 42 the director of the department of finance, interest, and taxes accrued or due. 43 (32) "Person" meansa natural person, corporationan individual, sole pro- 44 prietorship, partnership, joint venture, association,cooperative association,45unincorporated association,trust, estate, business trust, corporation, lim- 46 ited liability company, not-for-profit corporation, sovereign government or 47 agency, instrumentality, or political subdivision thereof, or anyother legal48or commercialsimilar entity or organization. 49 (33) "Preferred stock" means a class of the stock of a banking corporation 50 issued in accordance with section 26-206, Idaho Code, which is accorded a 51 preference or priority over the common stock of the corporation. 52 (34) "Resulting bank" means the bank resulting from a merger or conver- 53 sion. 54 (35) "Savings deposit" means a deposit: 55 (a)tThat consists of funds deposited to the credit of or in which the 4 1 entire beneficial interest is held by one (1) or more individuals, or a 2 corporation, association, or other organization operated primarily for 3 religious, philanthropic, charitable, educational, fraternal, or other 4 similar purposes and not operated for profit; or that consists of funds 5 deposited to the credit of or in which the entire beneficial interest is 6 held by the United States, any state of the United States, or any county, 7 municipality, or political subdivision thereof, the District of Columbia, 8 the Commonwealth of Puerto Rico, the Virgin Islands, American Samoa, Guam, 9 or political subdivision thereof; or that consists of funds deposited to 10 the credit of, or in which any beneficial interest is held by a corpora- 11 tion, association, or other organization not qualifying above to the 12 extent such funds do not exceed one hundred fifty thousand dollars 13 ($150,000) per such depositor at a bank; and 14 (b)wWith respect to which the depositor is not required by the deposit 15 contract but may at any time be required by the bank to give notice in 16 writing of an intended withdrawal not less than thirty (30) days before 17 such withdrawal is made and which is not payable on a specified date or at 18 the expiration of a specified time after the date of deposit. 19 (36) "State bank" means any bank chartered by the state of Idaho. 20 (37) "Temporary banking facility" means a banking facility which is oper- 21 ated for less than thirty (30) days and is established for the purpose of pro- 22 viding bank facility services for a specific occasion. 23 (38) "Time certificate of deposit" means a deposit evidenced by a negotia- 24 bleon non-negotiableor nonnegotiable instrument which provides on its face 25 that the amount of such deposit is payable to bearer or to any specified per- 26 son or to his order: 27 (a)oOn a certain date, specified in the instrument, not less than thirty 28 days (30) after the date of the deposit; or 29 (b)aAt the expiration of a certain specified time not less than thirty 30 (30) days after date of the instrument; or 31 (c)uUpon notice in writing which is actually required to be given not 32 less than thirty (30) days before the date of repayment; and 33 (d)iIn all cases only upon presentation and surrender of the instrument. 34 (39) "Time deposit" means time certificates of deposit, time deposits open 35 account, and savings deposits. 36 (40) "Time deposits open account" means a deposit, other than a time cer- 37 tificate of deposit, with respect to which there is in force a written con- 38 tract with the depositor that neither the whole nor any part of such deposit 39 may be withdrawn, by check or otherwise, prior to the date of maturity, which 40 shall be not less than thirty (30) days after the date of the deposit, or 41 prior to the expiration of the period of notice which must be given by the 42 depositor in writing not less than thirty (30) days in advance of withdrawal. 43 (41) "Trust department" means the division of a bank which has been 44 granted trust powers by the director of finance. 45 SECTION 2. That Section 26-703, Idaho Code, be, and the same is hereby 46 amended to read as follows: 47 26-703. REAL ESTATE LOANS. Any bank may make real estate loans secured by 48 first liens upon improved real estate, including improved farm land and 49 improved business and residential properties, as are consistent with safe and 50 sound banking practices. A loan secured by real estate within the meaning of 51 this section shall be in the form of an obligation or obligations secured by 52 mortgage, trust deed, or other such instrument which shall constitute a lien 53 upon real estate., and any bank may purchase any obligation so secured when5 1the entire amount of such obligation is sold to the bank. The amount of any2such loan hereafter made shall not exceed ninety percent (90%) of the3appraised value of the real estate offered as security and no such loan shall4be made for a longer term than thirty (30) years. The foregoing limitations5and restrictions shall not prevent the renewal or extension of loans hereto-6fore made and shall not apply to:7(a) real estate loans which are insured under the provisions of the8National Housing Act, act of congress of June 27, 1934, and9(b) amendatory and supplemental legislation relating to loans insured by10the federal housing administration.11No such bank shall hold on its books real estate loans in an aggregate sum12in excess of the amount of the capital and capital notes of such bank, plus13the amount of its unimpaired surplus fund, or in excess of sixty percent (60%)14of the amount of its savings and time deposits, whichever is the greater15except with the consent of the director.16 SECTION 3. That Sections 26-704, 26-705, 26-706 and 26-707, Idaho Code, 17 be, and the same are hereby repealed. 18 SECTION 4. That Section 26-708, Idaho Code, be, and the same is hereby 19 amended to read as follows: 20 26-7084. DETERMINATION OF LIMITS OF LOANS AND INVESTMENTS OF BANKS. For 21 the purpose of determining limitations on loans and investments the following 22 items are to be disregarded: 23 (a1)tThe sale of excess reserve funds by one (1) bank to another bank; 24 (b2)tThe purchase of securities by a bank, under an agreement to resell 25 at the end of a stated period; and 26 (c3)tThe purchase of mortgage loans by a bank, under agreement to resell 27 at the end of a stated period. 28 The director may, upon application by a bank, approve loans and investments in 29 excess of the limitations provided in this chapter. 30 SECTION 5. That Section 26-709, Idaho Code, be, and the same is hereby 31 amended to read as follows: 32 26-7095. LOANS TO ONE PERSON. (1) The totalliabilities to any bank of33anyloans and extensions of credit by a bank to a personfor money borrowed34 outstanding at one (1) time, shall at no time exceed twenty percent (20%) of 35 theaggregate paid-in capital, surplus andcapitalnotesstructure of such 36 bank. 37 (2) "Loans and extensions of credit" means a bank's direct or indirect 38 advance of funds to or on behalf of a borrower based upon an obligation of the 39 borrower to repay the funds, or repayable from specific property pledged by or 40 on behalf of the borrower, and includes: 41 (a) A contractual commitment to advance funds; 42 (b) A maker or endorser's obligation arising from a bank's discount of 43 commercial paper; 44 (c) A bank's purchase of securities subject to an agreement that the 45 seller shall repurchase the securities at the end of a stated period, but 46 not including a bank's purchase of type I securities, as defined in 12 CFR 47 part 1, subject to a repurchase agreement, where the purchasing bank has 48 assured control over or has established its rights to the type I securi- 49 ties as collateral; 50 (d) A bank's purchase of third-party paper subject to an agreement that 6 1 the seller shall repurchase the paper upon default or at the end of a 2 stated period. The amount of the bank's loan is the total unpaid balance 3 of the paper owned by the bank less any applicable dealer reserves 4 retained by the bank and held by the bank as collateral security. Where 5 the seller's obligation to repurchase is limited, the bank's loan is mea- 6 sured by the total amount of the paper the seller may ultimately be obli- 7 gated to repurchase. A bank's purchase of third party paper without direct 8 or indirect recourse to the seller is not a loan or extension of credit to 9 the seller; 10 (e) An overdraft, whether or not prearranged, but not an intra-day over- 11 draft for which payment is received before the close of business of the 12 bank that makes the funds available; 13 (f) The sale of federal funds with a maturity of more than one (1) busi- 14 ness day, but not federal funds with a maturity of one (1) day or less or 15 federal funds sold under a continuing contract; and 16 (g) Loans or extensions of credit that have been charged off on the books 17 of the bank in whole or in part, unless the loan or extension of credit: 18 (i) Is unenforceable by reason of discharge in bankruptcy; 19 (ii) Is no longer legally enforceable because of expiration of the 20 statute of limitations or a judicial decision; or 21 (iii) Is no longer legally enforceable for other reasons, provided 22 that the bank maintains sufficient records to demonstrate that the 23 loan is unenforceable. 24 (3) The following items do not constitute loans or extensions of credit 25 for purposes of this section: 26 (a) Additional funds advanced for the benefit of a borrower by a bank for 27 payment of taxes, insurance, utilities, security, and maintenance and 28 operating expenses necessary to preserve the value of real property secur- 29 ing the loan, consistent with safe and sound banking practices, but only 30 if the advance is for the protection of the bank's interest in the collat- 31 eral, and provided that such amounts must be treated as an extension of 32 credit if a new loan or extension of credit is made to the borrower; 33 (b) Accrued and discounted interest on an existing loan or extension of 34 credit, including interest that has been capitalized from prior notes and 35 interest that has been advanced under terms and conditions of a loan 36 agreement; 37 (c) Financed sales of a bank's own assets, including other real estate 38 owned, if the financing does not put the bank in a worse position than 39 when the bank held title to the assets; 40 (d) A renewal or restructuring of a loan as a new loan or extension of 41 credit, following the exercise by a bank of reasonable efforts, consistent 42 with safe and sound banking practices, to bring the loan into conformance 43 with the lending limit, unless new funds are advanced by the bank to the 44 borrower (except as permitted by this section), or a new borrower replaces 45 the original borrower, or unless the director determines that a renewal or 46 restructuring was undertaken as a means to evade the bank's lending limit; 47 (e) Amounts paid against uncollected funds in the normal process of col- 48 lection; and 49 (f) (i) That portion of a loan or extension of credit sold as a partic- 50 ipation by a bank on a nonrecourse basis, provided that the partici- 51 pation results in a pro rata sharing of credit risk proportionate to 52 the respective interests of the originating and participating lend- 53 ers. Where a participation agreement provides that repayment must be 54 applied first to the portions sold, a pro rata sharing shall be 55 deemed to exist only if the agreement also provides that, in the 7 1 event of a default or comparable event defined in the agreement, par- 2 ticipants must share in all subsequent repayments and collections in 3 proportion to their percentage participation at the time of the 4 occurrence of the event. 5 (ii) When an originating bank funds the entire loan, it must receive 6 funding from the participants before the close of business of its 7 next business day. If the participating portions are not received 8 within that period, then the portions funded shall be treated as a 9 loan by the originating bank to the borrower. If the portions so 10 attributed to the borrower exceed the originating bank's lending 11 limit, the loan may be treated as nonconforming, rather than a viola- 12 tion, if: 13 1. The originating bank had a valid and unconditional partici- 14 pation agreement with a participating bank or banks that was 15 sufficient to reduce the loan to within the originating bank's 16 lending limit; 17 2. The participating bank reconfirmed its participation and the 18 originating bank had no knowledge of any information that would 19 permit the participant to withhold its participation; and 20 3. The participation was to be funded by close of business of 21 the originating bank's next business day. 22 (4) The following loans or extensions of credit are not subject to the 23 lending limits of this section: 24 (a) The discount of bills of exchange drawn in good faith against actual 25 existing values,; 26 (b) Tthe discount of bankers' acceptances of other banks,; 27 (c) Tthe discount of commercial or business paper actually owned by the 28 person negotiating the same, and; 29 (d) Tthe obligations of the United States or general obligations of any 30 state or of any political subdivision thereof, or obligation issued under 31 authority of theFfederalFfarmLloanAact;, shall not be considered as32money borrowed, nor shall the foregoing limitations apply to33 (e) Lloans made on warehouse receipts and bills of lading, when such 34 warehouse receipts and bills of lading cover nonperishable commodities of 35 the marketable value of at least one hundred twenty percent (120%) of the 36 amount loaned thereon.; 37 (f) Loansor obligations shall not be subject under this section to any38limitation based upon such capital and surplusand extensions of credit to 39 the extentthat such loans or obligations aresecured or covered by guar- 40 anties, or by commitments or agreements to take over or to purchase, made 41 by any Federal Reserve Bank or by the United States or any department, 42 bureau, board, commission, or establishment of the United States, includ- 43 ing any corporation wholly owned directly or indirectly by the United 44 States; or 45 (g) Loans, including portions thereof, secured by a segregated deposit 46 account in the lending bank, provided a security interest in the deposit 47 has been perfected under applicable law. 48The combined liabilities of the several members of any firm, copartnership49or unincorporated association to the loaning bank shall be included in the50liabilities of such firm, copartnership or unincorporated association and51shall be included in the liabilities of any member thereof in determining the52foregoing limitations.53 (5) Combination. Loans or extensions of credit to one (1) borrower shall 54 be attributed to another person and each person shall be deemed a borrower 55 when proceeds of a loan or extension of credit are to be used for the direct 8 1 benefit of the other person, to the extent of the proceeds so used, or when a 2 common enterprise is deemed to exist between the persons. 3 (a) Direct benefit. The proceeds of a loan or extension of credit to a 4 borrower shall be deemed to be used for the direct benefit of another per- 5 son and shall be attributed to the other person when the proceeds, or 6 assets purchased with the proceeds, are transferred to another person, 7 other than in a bona fide arm's length transaction where the proceeds are 8 used to acquire property, goods or services. 9 (b) Common enterprise. A common enterprise shall be deemed to exist and 10 loans to separate borrowers shall be aggregated: 11 (i) When the expected source of repayment for each loan or exten- 12 sion of credit is the same for each borrower and neither borrower has 13 another source of income from which the loan (together with the 14 borrower's other obligations) may be fully repaid. An employer shall 15 not be treated as a source of repayment under this paragraph because 16 of wages and salaries paid to an employee unless the standards of 17 paragraph (b)(ii) of this subsection are met; 18 (ii) When loans or extensions of credit are made: 19 1. To borrowers who are related directly or indirectly through 20 common control, including where one (1) borrower is directly or 21 indirectly controlled by another borrower; and 22 2. Substantial financial interdependence exists between or 23 among the borrowers. Substantial financial interdependence is 24 deemed to exist when fifty percent (50%) or more of one (1) 25 borrower's gross receipts or gross expenditures (on an annual 26 basis) are derived from transactions with the other borrower. 27 Gross receipts and expenditures include gross revenues/expenses, 28 intercompany loans, dividends, capital contributions, and simi- 29 lar receipts or payments; 30 (iii) When separate persons borrow from a bank to acquire a business 31 enterprise of which those borrowers will own more than fifty percent 32 (50%) of the voting securities or voting interests, in which case a 33 common enterprise is deemed to exist between the borrowers for pur- 34 poses of combining the acquisition loans; or 35 (iv) When the director determines, based upon an evaluation of the 36 facts and circumstances of particular transactions, that a common 37 enterprise exists. 38 (c) Loans to a corporate group. 39 (i) Loans or extensions of credit by a bank to a corporate group 40 may not exceed fifty percent (50%) of the bank's capital and surplus. 41 A corporate group includes a person and all of its subsidiaries. For 42 purposes of this paragraph, a corporation or a limited liability com- 43 pany is a subsidiary of a person if the person owns or beneficially 44 owns directly or indirectly more than fifty percent (50%) of the vot- 45 ing securities or voting interests of the corporation or company. 46 (ii) Except as provided in paragraph (c)(i) of this subsection, 47 loans or extensions of credit to a person and its subsidiary, or to 48 different subsidiaries of a person, are not combined unless either 49 the direct benefit or the common enterprise test is met. 50 (d) Loans to partnerships, joint ventures, and associations. 51 (i) Partnership loans. Loans or extensions of credit to a partner- 52 ship, joint venture or association are deemed to be loans or exten- 53 sions of credit to each member of the partnership, joint venture or 54 association. This rule does not apply to limited partners in limited 55 partnerships or to members of joint ventures or associations if the 9 1 partners or members, by the terms of the partnership or membership 2 agreement, are not held generally liable for the debts or actions of 3 the partnership, joint venture or association, and those provisions 4 are valid under applicable law. 5 (ii) Loans to partners. 6 1. Loans or extensions of credit to members of a partnership, 7 joint venture or association are not attributed to the partner- 8 ship, joint venture or association unless either the direct ben- 9 efit or the common enterprise test is met. Both the direct bene- 10 fit and common enterprise tests are met between a member of a 11 partnership, joint venture or association and such partnership, 12 joint venture or association, when loans or extensions of credit 13 are made to the member to purchase an interest in the partner- 14 ship, joint venture or association. 15 2. Loans or extensions of credit to members of a partnership, 16 joint venture or association are not attributed to other members 17 of the partnership, joint venture or association unless either 18 the direct benefit or common enterprise test is met. 19 (e) Loans to foreign governments and their agencies and instrumentali- 20 ties. 21 (i) Aggregation. Loans and extensions of credit to foreign govern- 22 ments and their agencies and instrumentalities shall be aggregated 23 with one another only if the loans or extensions of credit fail to 24 meet either the means test or the purpose test at the time the loan 25 or extension of credit is made. 26 1. The means test is satisfied if the borrower has resources or 27 revenue of its own sufficient to service its debt obligations. 28 If the government's support (excluding guarantees by a central 29 government of the borrower's debt) exceeds the borrower's annual 30 revenues from other sources, it shall be presumed that the means 31 test has not been satisfied. 32 2. The purpose test is satisfied if the purpose of the loan or 33 extension of credit is consistent with the purposes of the 34 borrower's general business. 35 (ii) Documentation. In order to show that the means and purpose 36 tests have been satisfied, a bank must, at a minimum, retain in its 37 files the following items: 38 1. A statement (accompanied by supporting documentation) 39 describing the legal status and the degree of financial and 40 operational autonomy of the borrowing entity; 41 2. Financial statements for the borrowing entity for a minimum 42 of three (3) years prior to the date the loan or extension of 43 credit was made or for each year that the borrowing entity has 44 been in existence, if less than three (3) years; 45 3. Financial statements for each year the loan or extension of 46 credit is outstanding; 47 4. The bank's assessment of the borrower's means of servicing 48 the loan or extension of credit, including specific reasons in 49 support of that assessment. The assessment shall include an 50 analysis of the borrower's financial history, its present and 51 projected economic and financial performance, and the signifi- 52 cance of any financial support provided to the borrower by third 53 parties, including the borrower's central government; and 54 5. A loan agreement or other written statement from the bor- 55 rower that clearly describes the purpose of the loan or exten- 10 1 sion of credit. The written representation will ordinarily con- 2 stitute sufficient evidence that the purpose test has been sat- 3 isfied. However, when, at the time the funds are disbursed, the 4 bank knows or has reason to know of other information suggesting 5 that the borrower will use the proceeds in a manner inconsistent 6 with the written representation, it may not, without further 7 inquiry, accept the representation. 8 (6) Calculation. For purposes of determining compliance with this sec- 9 tion, a bank shall determine its lending limit as of the last day of the pre- 10 ceding calendar quarter. A bank's lending limit calculated in accordance with 11 this section shall be effective on the date that the limit is to be calcu- 12 lated. If the director determines for safety and soundness reasons that a bank 13 should calculate its lending limit more frequently than required by this sub- 14 section, the director may provide written notice to the bank directing the 15 bank to calculate its lending limit at a more frequent interval, and the bank 16 shall thereafter calculate its lending limit at that interval until further 17 notice from the director. 18 (7) Nonconforming loans. A loan, within a bank's legal lending limit when 19 made, shall not be deemed a violation but shall be treated as nonconforming if 20 the loan is no longer in conformity with the bank's lending limit because: 21 (a) The bank's capital has declined, borrowers have subsequently merged 22 or formed a common enterprise, lenders have merged, or the lending limit 23 or capital rules have changed. A bank must use reasonable efforts to bring 24 a loan that is nonconforming under this subsection into conformity with 25 the bank's lending limit unless to do so would be inconsistent with safe 26 and sound banking practices. 27 (b) Collateral securing the loan to satisfy the requirements of a lending 28 limit exception has declined in value. A bank must bring a loan that is 29 nonconforming under this subsection into conformity with the bank's lend- 30 ing limit within thirty (30) calendar days, except when judicial proceed- 31 ings, regulatory actions or other extraordinary circumstances beyond the 32 bank's control prevent the bank from taking action. 33 (8) When in the judgment of the director theliabilities of any corpora-34tionloans and extensions of credit to any person, or the combinedliabilities35ofloans and extensions of credit to any corporation and one (1) or more of 36 its stockholdersto any bankare excessive, he shall require the reduction 37 thereof to such limits and within such time as he shall prescribe. 38 Provided, further, that the director may compel the reduction of any loan 39 which shall in his judgment appear excessive or dangerous. 40 SECTION 6. That Section 26-710, Idaho Code, be, and the same is hereby 41 amended to read as follows: 42 26-7106. LOANS TO OFFICERS. Except as authorized under this section, no 43 bank may extend credit in any manner to any of its own executive officers. 44 Any extension of credit under this section must be approved by the board of 45 directors of the bank, and may be made only if such credit extension comports 46 with the principles of safety and soundness and is in compliance with regula- 47 tion O of the board of governors of the federal reserve system, 12 C.F.R. 215. 48 SECTION 7. That Section 26-711, Idaho Code, be, and the same is hereby 49 amended to read as follows: 50 26-71107. REAL ESTATE HOLDINGS. A bank may purchase, acquire, hold and 51 convey real estate for the following purposes only: 11 1 (1) Such as shall be necessary for the convenient transaction of its 2 business, including at the same location as its banking offices other property 3 to rent as a source of income; provided, however, that no bank shall invest in 4 buildings and lots and furniture, fixtures and equipment in an amount greater 5 than fiftyper centpercent (50%) of the capital, surplus and capital notes6 structure of such bank. 7 (2) Such as shall be conveyed to it in satisfaction of debts previously 8 contracted in the course of business. 9 (3) Such as it shall purchase at sale on judgments, decrees, mortgage 10 foreclosure or trustees sale for debts previously contracted, but a bank shall 11 not bid at such sale a larger amount than is necessary to satisfy all debts 12 and costs necessary to obtain clear title. Such real estate shall be carried 13 on the books of the bank at the lower of cost or market value. Market value 14 shall be determined by a current appraisal prepared by an independent quali- 15 fied appraiser approved by the director. Thereafter, but no more frequently 16 than annually, the director may in his discretion request that the bank obtain 17 from an independent qualified appraiser approved by the director, a further 18 appraisal of market value or certification by the appraiser that the market 19 value has not declined. 20 (4) No real estate acquired under subsections (2) and (3) of this section 21 may be held for a longer period than five (5) years, provided, however, that 22 upon application by the bank, the director shall approve the continued holding 23 of any such real estate by the bank for an additional period of five (5) years 24 upon the bank's showing of its good faith attempt to dispose of the real 25 estate within the first five (5) year period, or that disposal within the 26 first five (5) year period would be detrimental to the bank; and provided fur- 27 ther that the bank shall, during the second five (5) year period, at the end 28 of each year beginning at the end of the sixth year in which the property is 29 held, write down the value of such real estate by twenty percent (20%) of the 30 value at which such real estate is carried on its books at the beginning of 31 the second five (5) year period. Value at the beginning of the second five (5) 32 year period shall be the lower of cost or market value as determined pursuant 33 to appraisal as provided in subsection (3) of this section. Nothing in this 34 section shall be construed to prevent a bank from making loans secured by real 35 estate as provided in this act, or a trust department holding and conveying 36 real estate in trust. 37 (5) A bank may, with the approval of the director and the board of gover- 38 nors of the Federal Reserve System or the Federal Deposit Insurance Corpora- 39 tion invest in bank premises or in the stock, bonds, debentures, or other 40 obligations of any corporation holding the banking buildings, lots and furni- 41 ture, fixtures and equipment of such bank in an amount not to exceed the capi- 42 tal and surplus of the bank. 43 SECTION 8. That Section 26-712, Idaho Code, be, and the same is hereby 44 amended to read as follows: 45 26-71208. VALUATION OF ASSETS. No bank shall enter or at any time carry 46 on its books any of its assets at a valuation exceeding their actual cost to 47 the bank; nor shall the value of any of its assets be increased on the books 48 of the bank without the written consent of the director. Additional charges, 49 delinquency charges and other similar charges on consumer credit transactions 50 permitted by and made in compliance with the Uniform Consumer Credit Code and 51 added to the principal balance of the loan, shall not come within the prohibi- 52 tion of this section. 12 1 SECTION 9. That Section 26-713, Idaho Code, be, and the same is hereby 2 amended to read as follows: 3 26-71309. STATUTORY BAD DEBT. Every bank carrying any bad debt, or a debt 4 of doubtful value, as an asset shall, upon the request or demand of the direc- 5 tor, collect the same or put it in good bankable condition or charge it out of 6 its books. Any debt on which interest is past due and unpaid for a period of 7 six (6) months, unless the same is well secured and in process of collection, 8 shall be considered a bad debt within the meaning of this section. 9 SECTION 10. That Section 26-714, Idaho Code, be, and the same is hereby 10 amended to read as follows: 11 26-7140. OWNERSHIP AND LEASING OF PROPERTY FOR CUSTOMERS. A bank may 12 become the owner and lessor of personal property acquired upon the specific 13 request and for the use of a customer and may incur such additional obliga- 14 tions as may be incident to becoming an owner and lessor of such property. 15 SECTION 11. That Section 26-715, Idaho Code, be, and the same is hereby 16 amended to read as follows: 17 26-7151. LENDING OF CREDIT -- SURETYSHIP AND GUARANTYSHIP. A bank may 18 lend its credit, bind itself as a surety to indemnify another, or otherwise 19 become a guarantor, only if it has a substantial interest in the performance 20 of the transaction involved or has a segregated deposit sufficient in amount 21 to cover the bank's total potential liability. 22 SECTION 12. That Section 26-716, Idaho Code, be, and the same is hereby 23 amended to read as follows: 24 26-7162. VALIDITY OF TRANSACTIONS. Nothing in any law of this state shall 25 in any manner whatsoever affect the validity of, or render void or voidable, 26 the payment, certification or acceptance of a check or other negotiable 27 instrument, or any other transaction by a bank in this state, because done or 28 performed during any time other than regular banking hours. 29 SECTION 13. That Section 26-717, Idaho Code, be, and the same is hereby 30 amended to read as follows: 31 26-7173. ADVERSE CLAIM TO BANK DEPOSIT. Notice to any bank of an adverse 32 claim to a deposit standing on its books to the credit of any person shall not 33 require the bank to recognize the adverse claim unless the adverse claimant 34 shall: 35 (a1)pProcure a restraining order, injunction or other appropriate proc- 36 ess against the bank from a court of competent jurisdiction wherein the 37 person to whose credit the deposit stands is made a party and served with 38 summons,; or 39 (b2)eExecute to said bank, in a form and with sureties acceptable to the 40 bank, a bond indemnifying the bank from any and all liability, loss, dam- 41 age, costs and expenses for and on account of the payment of such adverse 42 claim or the dishonor of the check or other order of the person to whose 43 credit the deposit stands on the books of the bank. 44 This section shall not apply in any instance where the person to whose 45 credit the deposit stands is a fiduciary for such adverse claimant, and the 46 facts constituting such relationship and the facts showing reasonable cause 13 1 for belief on the part of the claimant that the fiduciary is about to 2 misappropriate the deposit, are made to appear by the affidavit of the claim- 3 ant. 4 SECTION 14. That Section 26-718, Idaho Code, be, and the same is hereby 5 amended to read as follows: 6 26-7184. ACCOUNT OF PERSON UNDER DISABILITY. Whenever any minor or any 7 person under disability shall become a depositor, as defined in section 8 26-106, Idaho Code, in any bank in his or her name, such bank may pay such 9 money on the check, order or endorsement of such depositor the same as in 10 cases of depositors not under disability, and such payment shall be in all 11 respects valid in law. 12 SECTION 15. That Section 26-719, Idaho Code, be, and the same is hereby 13 amended to read as follows: 14 26-7195. BRANCH OR OFFICE AT WHICH INSTRUMENTS ARE TO BE PRESENTED MUST 15 BE INDICATED. All checks, drafts, bills of exchange or other orders for the 16 payment of money drawn against any bank operating branch banks shall indicate 17 the particular bank and branch at which the same are to be presented for pay- 18 ment or acceptance. 19 SECTION 16. That Section 26-801, Idaho Code, be, and the same is hereby 20 amended to read as follows: 21 26-801. BORROWING MONEY -- LIMITATIONS. At no time shall the total bor- 22 rowings of any bank exceed in the aggregate an amount equal to the capitaland23surplusstructure of the bank, except with the consent of the director. 24 For the purpose of computing total borrowings the following items shall 25 not be included: 26 (a1) Federal funds purchased. 27 (b2) The sale of securities by a bank, under an agreement to repurchase 28 at the end of a stated period. 29 (c3) Borrowings from the Federal Reserve System. 30 (d4) The sale of mortgage loans by a bank, under agreement to repurchase 31 at the end of a stated period. 32 (e5) Money borrowed to meet seasonal requirements. 33 (f6) Money borrowed to meet unexpected withdrawals. 34 (g7) Capital notes issued in accordance with section 26-802, Idaho Code. 35 The total of all borrowings by a bank including those items excluded from 36 the computation of total borrowings may not exceed in the aggregate an amount 37 equal to two and one-half (2 1/2) times the capitaland surplusstructure of 38 the bank, except with the consent of the director. 39 Whenever it shall appear to the director that a bank is borrowing money in 40 excess of the above limitation, or for purposes other than as specified above, 41 he may require it to reduce such borrowings within a time to be fixed by him. 42 SECTION 17. That Section 26-107, Idaho Code, be, and the same is hereby 43 amended to read as follows: 44 26-107. SECTIONS APPLICABLE TO NATIONAL BANKS. The provisions of sections 45 26-215, 26-301 through and including, 26-309, 26-311, 26-7162, 26-7173, 46 26-7184, 26-1203, 26-1206, 26-1207, 26-1208, and 26-1209, 26-1601 through 47 26-1605, 26-2601 through 26-2612, Idaho Code, shall also apply to national 14 1 banks.
]]]] LEGISLATURE OF THE STATE OF IDAHO ]]]] Fifty-seventh Legislature Second Regular Session - 2004Moved by Cameron Seconded by Goedde IN THE SENATE SENATE AMENDMENT TO H.B. NO. 524 1 AMENDMENT TO SECTION 5 2 On page 5 of the printed bill, in line 40, following "includes" insert: ", 3 for the purposes of this section".
]]]] LEGISLATURE OF THE STATE OF IDAHO ]]]] Fifty-seventh Legislature Second Regular Session - 2004IN THE HOUSE OF REPRESENTATIVES HOUSE BILL NO. 524, As Amended in the Senate BY BUSINESS COMMITTEE 1 AN ACT 2 RELATING TO BANKS AND BANKING; AMENDING SECTION 26-106, IDAHO CODE, TO REVISE 3 DEFINITIONS AND TO MAKE TECHNICAL CORRECTIONS; AMENDING SECTION 26-703, 4 IDAHO CODE, TO REVISE PROVISIONS APPLICABLE TO REAL ESTATE LOANS OFFERED 5 BY BANKS; REPEALING SECTIONS 26-704, 26-705, 26-706 AND 26-707, IDAHO 6 CODE, RELATING TO MORTGAGE INSURANCE, GOVERNMENT GUARANTEED LOANS, COMMER- 7 CIAL LOANS AND CONSTRUCTION LOANS; AMENDING SECTION 26-708, IDAHO CODE, TO 8 REDESIGNATE THE SECTION AND TO MAKE TECHNICAL CORRECTIONS; AMENDING SEC- 9 TION 26-709, IDAHO CODE, TO REDESIGNATE THE SECTION, TO PROVIDE THAT THE 10 TOTAL LOANS AND EXTENSIONS OF CREDIT TO PERSONS SHALL BE LIMITED, TO 11 DEFINE "LOANS AND EXTENSIONS OF CREDIT," TO PROVIDE THAT CERTAIN ITEMS DO 12 NOT CONSTITUTE LOANS OR EXTENSIONS OF CREDIT, TO EXEMPT CERTAIN LOANS OR 13 EXTENSIONS OF CREDIT FROM LENDING LIMITS, TO PROVIDE FOR THE COMBINATION 14 OF LOANS OR EXTENSIONS OF CREDIT UNDER CERTAIN OUTLINED CONDITIONS, TO 15 DEFINE TERMS, TO PROVIDE FOR CALCULATION OF LENDING LIMITS, TO SET FORTH 16 CONDITIONS UNDER WHICH LOANS SHALL BE CONSIDERED NONCONFORMING, TO PROVIDE 17 CORRECT TERMINOLOGY AND TO MAKE TECHNICAL CORRECTIONS; AMENDING SECTION 18 26-710, IDAHO CODE, TO REDESIGNATE THE SECTION; AMENDING SECTION 26-711, 19 IDAHO CODE, TO REDESIGNATE THE SECTION AND TO PROVIDE THAT BANKS SHALL NOT 20 INVEST IN CERTAIN REAL ESTATE HOLDINGS IN AMOUNTS GREATER THAN FIFTY PER- 21 CENT OF THE CAPITAL STRUCTURE OF THE BANK AND TO MAKE A TECHNICAL CORREC- 22 TION; AMENDING SECTIONS 26-712, 26-713, 26-714, 26-715 AND 26-716, IDAHO 23 CODE, TO REDESIGNATE THE SECTIONS; AMENDING SECTION 26-717, IDAHO CODE, TO 24 REDESIGNATE THE SECTION AND TO MAKE TECHNICAL CORRECTIONS; AMENDING SEC- 25 TIONS 26-718 AND 26-719, IDAHO CODE, TO REDESIGNATE THE SECTIONS; AMEND- 26 ING SECTION 26-801, IDAHO CODE, TO REVISE TERMINOLOGY REFERRING TO THE 27 CAPITAL STRUCTURE OF BANKS AND TO MAKE TECHNICAL CORRECTIONS; AND AMENDING 28 SECTION 26-107, IDAHO CODE, TO PROVIDE CORRECT CODE CITATIONS. 29 Be It Enacted by the Legislature of the State of Idaho: 30 SECTION 1. That Section 26-106, Idaho Code, be, and the same is hereby 31 amended to read as follows: 32 26-106. DEFINITIONS. As used in this act, unless the context or subject 33 matter otherwise requires: 34 (1) "Bank" means any person engaged in soliciting, receiving or accepting 35 money or its equivalent on deposit as a regular business whether or not such 36 deposit, however evidenced, is made subject to check or draft or other order. 37 (2) "Banking business" means the soliciting, receiving or accepting of 38 money or its equivalent on deposit as a regular business whether such deposit 39 is made subject to check or draft or is evidenced by a certificate of deposit, 40 a passbook, a note, a receipt, or other writing; provided, that nothing herein 41 shall apply to or include money or its equivalent left in escrow or left with 42 an agent pending investment in real estate or securities for or on account of 43 his principal. 2 1 (3) "Banking facility" means a place of business of a bank which performs 2 activities limited to: 3 (a)tTaking applications for loans, accepting deposits, issuing receipts 4 therefor, and transmitting such deposits to the bank maintaining such 5 facility; 6 (b)cCarrying and disbursing cash change, cashing checks, accepting 7 checks; 8 (c)iIssuing checks drawn on or certified by the bank operating the 9 facility, renting safety deposit boxes, keeping necessary accounts of all 10 transactions; and carrying out such other transactions as the director may 11 allow by regulation. 12 (4) "Bank service corporation" means a corporation organized to perform 13 bank services for two (2) or more banks, each of which owns part of the capi- 14 tal stock of such corporation, and which are subject to examination by either 15 the department of finance of the state of Idaho or a federal bank supervisory 16 agency. 17 For the purpose of this definition "bank services" means services such as 18 check and deposit sorting and posting, computation and posting of interest and 19 other credits and charges, preparation and mailing of checks, statements, 20 notices, and similar items, or any other clerical, bookkeeping, accounting, 21 statistical, or similar functions performed for a bank. 22 (5) "Borrowing" means any nondeposit liability. 23 (6) "Branch" means any location except a bank facility or customer-bank 24 communication terminal or bank service corporation at which a bank performs 25 any or all functions of a bank. 26 (7) "Capital" means the amount of unimpaired paid-up common stock plus 27 the amount of paid-up preferred stock issued and unimpaired. 28 (8) "Capital note" means a convertible or nonconvertible note of a bank 29 subordinated as to principal and interest to the depositors of the bank and 30 containing such conditions as the director may require. 31 (9) "Capital structure" means the total of the capital, surplus, undi- 32 vided profits and subordinated capital notes and contingency reserves of the 33 bank or such other account as determined by the director of the department of 34 finance, less intangible assets. 35 (10) "Common stock" means the stock of a banking corporation other than 36 preferred stock. 37 (11) "Commercial paper" means a short term negotiable instrument arising 38 out of a commercial transaction; provided, however, that commercial paper 39 shall not be construed to be a deposit as defined in this act. 40 (12) "Converting bank" means a bank converting from a state to a national 41 bank, or the reverse. 42 (13) "Demand deposit" means all deposits except time deposits. 43 (14) "Deposit" means the act of placing or lodging money in the custody of 44 a person, for safety or convenience whether interest-bearing or not, to be 45 withdrawn at the will of the depositor or under rules, terms and regulations 46 agreed upon by the depositor and the depository. If the context requires, 47 deposit may also mean the money so deposited or the credit the depositor 48 receives for it. 49 (15) "Depositor" means any person who deposits money. 50 (16) "Director" means the director of the department of finance. 51 (17) "Dissenting stockholder" means a stockholder dissenting and voting 52 his dissent as provided in this act. 53 (18) "Executive officer" means each officer of a bank, who by virtue of 54 his position, has both voice in the formulation of the policy of the bank and 55 responsibility for the implementation of such policy. 3 1 (19) "Federal funds" means member bank deposits at federal reserve banks. 2 (20) "Federal reserve act" means and includes the act of congress of the 3 United States approved December 23, 1913, as amended. 4 (21) "Federal reserve bank" means a federal reserve bank created and orga- 5 nized under the authority of the Federal Reserve Act. 6 (22) "Federal reserve board" means the board of governors of the Federal 7 Reserve System created and described in the Federal Reserve Act. 8 (23) "Federal bank supervisory agency" means the comptroller of the cur- 9 rency, the board of governors of the Federal Reserve System, or the board of 10 directors of the Federal Deposit Insurance Corporation. 11 (24) "Fiduciary" means trustee, agent, executor, administrator, personal 12 representative, committee, guardian or conservator for a minor or other incom- 13 petent person, receiver, trustee in bankruptcy, assignee for creditors or any 14 holder of a similar position of trust. 15 (25) "Member bank" means any national bank or state bank which has become 16 or which becomes a member of one (1) of the federal reserve banks created by 17 the Federal Reserve Act. 18 (26) "Merger" means the union of two (2) or more bank corporations by the 19 transfer of property of all to one (1) of them. As used in this act "merger" 20 includes a consolidation. 21 (27) "Merging bank" means a party to a merger. 22 (28) "Mobile facility" means a banking facility which is moved from place 23 to place and not permanently attached to real property. 24 (29) "National bank" means a bank organized under the laws of the United 25 States and issued an organization certificate by the comptroller of the cur- 26 rency. 27 (30) "Net demand deposits" means the total of the bank's demand deposits 28 after subtracting from the deposit balance due to any bank the deposit balance 29 due from the same bank (other than trust funds deposited by either bank) and 30 any cash items in the process of collection due from or due to such banks 31 shall be included in determining such net balance, except that balances of 32 time deposits of any bank and any balances standing to the credit of private 33 banks, of banks in foreign countries, of foreign branches of other American 34 banks, and of American branches of foreign banks shall be reported gross with- 35 out any such subtraction, and excluding any deposits received in any office of 36 the bank for deposits in any other office of the bank. The amount of trust 37 funds held in the bank's own trust department, which the bank keeps segregated 38 and apart from its general assets and does not use in the conduct of its busi- 39 ness, shall not be included as net deposits. 40 (31) "Net profits" means profits remaining after the deduction of all 41 expenses including depreciation, losses, or doubtful assets, as required by 42 the director of the department of finance, interest, and taxes accrued or due. 43 (32) "Person" meansa natural person, corporationan individual, sole pro- 44 prietorship, partnership, joint venture, association,cooperative association,45unincorporated association,trust, estate, business trust, corporation, lim- 46 ited liability company, not-for-profit corporation, sovereign government or 47 agency, instrumentality, or political subdivision thereof, or anyother legal48or commercialsimilar entity or organization. 49 (33) "Preferred stock" means a class of the stock of a banking corporation 50 issued in accordance with section 26-206, Idaho Code, which is accorded a 51 preference or priority over the common stock of the corporation. 52 (34) "Resulting bank" means the bank resulting from a merger or conver- 53 sion. 54 (35) "Savings deposit" means a deposit: 55 (a)tThat consists of funds deposited to the credit of or in which the 4 1 entire beneficial interest is held by one (1) or more individuals, or a 2 corporation, association, or other organization operated primarily for 3 religious, philanthropic, charitable, educational, fraternal, or other 4 similar purposes and not operated for profit; or that consists of funds 5 deposited to the credit of or in which the entire beneficial interest is 6 held by the United States, any state of the United States, or any county, 7 municipality, or political subdivision thereof, the District of Columbia, 8 the Commonwealth of Puerto Rico, the Virgin Islands, American Samoa, Guam, 9 or political subdivision thereof; or that consists of funds deposited to 10 the credit of, or in which any beneficial interest is held by a corpora- 11 tion, association, or other organization not qualifying above to the 12 extent such funds do not exceed one hundred fifty thousand dollars 13 ($150,000) per such depositor at a bank; and 14 (b)wWith respect to which the depositor is not required by the deposit 15 contract but may at any time be required by the bank to give notice in 16 writing of an intended withdrawal not less than thirty (30) days before 17 such withdrawal is made and which is not payable on a specified date or at 18 the expiration of a specified time after the date of deposit. 19 (36) "State bank" means any bank chartered by the state of Idaho. 20 (37) "Temporary banking facility" means a banking facility which is oper- 21 ated for less than thirty (30) days and is established for the purpose of pro- 22 viding bank facility services for a specific occasion. 23 (38) "Time certificate of deposit" means a deposit evidenced by a negotia- 24 bleon non-negotiableor nonnegotiable instrument which provides on its face 25 that the amount of such deposit is payable to bearer or to any specified per- 26 son or to his order: 27 (a)oOn a certain date, specified in the instrument, not less than thirty 28 days (30) after the date of the deposit; or 29 (b)aAt the expiration of a certain specified time not less than thirty 30 (30) days after date of the instrument; or 31 (c)uUpon notice in writing which is actually required to be given not 32 less than thirty (30) days before the date of repayment; and 33 (d)iIn all cases only upon presentation and surrender of the instrument. 34 (39) "Time deposit" means time certificates of deposit, time deposits open 35 account, and savings deposits. 36 (40) "Time deposits open account" means a deposit, other than a time cer- 37 tificate of deposit, with respect to which there is in force a written con- 38 tract with the depositor that neither the whole nor any part of such deposit 39 may be withdrawn, by check or otherwise, prior to the date of maturity, which 40 shall be not less than thirty (30) days after the date of the deposit, or 41 prior to the expiration of the period of notice which must be given by the 42 depositor in writing not less than thirty (30) days in advance of withdrawal. 43 (41) "Trust department" means the division of a bank which has been 44 granted trust powers by the director of finance. 45 SECTION 2. That Section 26-703, Idaho Code, be, and the same is hereby 46 amended to read as follows: 47 26-703. REAL ESTATE LOANS. Any bank may make real estate loans secured by 48 first liens upon improved real estate, including improved farm land and 49 improved business and residential properties, as are consistent with safe and 50 sound banking practices. A loan secured by real estate within the meaning of 51 this section shall be in the form of an obligation or obligations secured by 52 mortgage, trust deed, or other such instrument which shall constitute a lien 53 upon real estate., and any bank may purchase any obligation so secured when5 1the entire amount of such obligation is sold to the bank. The amount of any2such loan hereafter made shall not exceed ninety percent (90%) of the3appraised value of the real estate offered as security and no such loan shall4be made for a longer term than thirty (30) years. The foregoing limitations5and restrictions shall not prevent the renewal or extension of loans hereto-6fore made and shall not apply to:7(a) real estate loans which are insured under the provisions of the8National Housing Act, act of congress of June 27, 1934, and9(b) amendatory and supplemental legislation relating to loans insured by10the federal housing administration.11No such bank shall hold on its books real estate loans in an aggregate sum12in excess of the amount of the capital and capital notes of such bank, plus13the amount of its unimpaired surplus fund, or in excess of sixty percent (60%)14of the amount of its savings and time deposits, whichever is the greater15except with the consent of the director.16 SECTION 3. That Sections 26-704, 26-705, 26-706 and 26-707, Idaho Code, 17 be, and the same are hereby repealed. 18 SECTION 4. That Section 26-708, Idaho Code, be, and the same is hereby 19 amended to read as follows: 20 26-7084. DETERMINATION OF LIMITS OF LOANS AND INVESTMENTS OF BANKS. For 21 the purpose of determining limitations on loans and investments the following 22 items are to be disregarded: 23 (a1)tThe sale of excess reserve funds by one (1) bank to another bank; 24 (b2)tThe purchase of securities by a bank, under an agreement to resell 25 at the end of a stated period; and 26 (c3)tThe purchase of mortgage loans by a bank, under agreement to resell 27 at the end of a stated period. 28 The director may, upon application by a bank, approve loans and investments in 29 excess of the limitations provided in this chapter. 30 SECTION 5. That Section 26-709, Idaho Code, be, and the same is hereby 31 amended to read as follows: 32 26-7095. LOANS TO ONE PERSON. (1) The totalliabilities to any bank of33anyloans and extensions of credit by a bank to a personfor money borrowed34 outstanding at one (1) time, shall at no time exceed twenty percent (20%) of 35 theaggregate paid-in capital, surplus andcapitalnotesstructure of such 36 bank. 37 (2) "Loans and extensions of credit" means a bank's direct or indirect 38 advance of funds to or on behalf of a borrower based upon an obligation of the 39 borrower to repay the funds, or repayable from specific property pledged by or 40 on behalf of the borrower, and includes, for the purposes of this section: 41 (a) A contractual commitment to advance funds; 42 (b) A maker or endorser's obligation arising from a bank's discount of 43 commercial paper; 44 (c) A bank's purchase of securities subject to an agreement that the 45 seller shall repurchase the securities at the end of a stated period, but 46 not including a bank's purchase of type I securities, as defined in 12 CFR 47 part 1, subject to a repurchase agreement, where the purchasing bank has 48 assured control over or has established its rights to the type I securi- 49 ties as collateral; 50 (d) A bank's purchase of third-party paper subject to an agreement that 6 1 the seller shall repurchase the paper upon default or at the end of a 2 stated period. The amount of the bank's loan is the total unpaid balance 3 of the paper owned by the bank less any applicable dealer reserves 4 retained by the bank and held by the bank as collateral security. Where 5 the seller's obligation to repurchase is limited, the bank's loan is mea- 6 sured by the total amount of the paper the seller may ultimately be obli- 7 gated to repurchase. A bank's purchase of third party paper without direct 8 or indirect recourse to the seller is not a loan or extension of credit to 9 the seller; 10 (e) An overdraft, whether or not prearranged, but not an intra-day over- 11 draft for which payment is received before the close of business of the 12 bank that makes the funds available; 13 (f) The sale of federal funds with a maturity of more than one (1) busi- 14 ness day, but not federal funds with a maturity of one (1) day or less or 15 federal funds sold under a continuing contract; and 16 (g) Loans or extensions of credit that have been charged off on the books 17 of the bank in whole or in part, unless the loan or extension of credit: 18 (i) Is unenforceable by reason of discharge in bankruptcy; 19 (ii) Is no longer legally enforceable because of expiration of the 20 statute of limitations or a judicial decision; or 21 (iii) Is no longer legally enforceable for other reasons, provided 22 that the bank maintains sufficient records to demonstrate that the 23 loan is unenforceable. 24 (3) The following items do not constitute loans or extensions of credit 25 for purposes of this section: 26 (a) Additional funds advanced for the benefit of a borrower by a bank for 27 payment of taxes, insurance, utilities, security, and maintenance and 28 operating expenses necessary to preserve the value of real property secur- 29 ing the loan, consistent with safe and sound banking practices, but only 30 if the advance is for the protection of the bank's interest in the collat- 31 eral, and provided that such amounts must be treated as an extension of 32 credit if a new loan or extension of credit is made to the borrower; 33 (b) Accrued and discounted interest on an existing loan or extension of 34 credit, including interest that has been capitalized from prior notes and 35 interest that has been advanced under terms and conditions of a loan 36 agreement; 37 (c) Financed sales of a bank's own assets, including other real estate 38 owned, if the financing does not put the bank in a worse position than 39 when the bank held title to the assets; 40 (d) A renewal or restructuring of a loan as a new loan or extension of 41 credit, following the exercise by a bank of reasonable efforts, consistent 42 with safe and sound banking practices, to bring the loan into conformance 43 with the lending limit, unless new funds are advanced by the bank to the 44 borrower (except as permitted by this section), or a new borrower replaces 45 the original borrower, or unless the director determines that a renewal or 46 restructuring was undertaken as a means to evade the bank's lending limit; 47 (e) Amounts paid against uncollected funds in the normal process of col- 48 lection; and 49 (f) (i) That portion of a loan or extension of credit sold as a partic- 50 ipation by a bank on a nonrecourse basis, provided that the partici- 51 pation results in a pro rata sharing of credit risk proportionate to 52 the respective interests of the originating and participating lend- 53 ers. Where a participation agreement provides that repayment must be 54 applied first to the portions sold, a pro rata sharing shall be 55 deemed to exist only if the agreement also provides that, in the 7 1 event of a default or comparable event defined in the agreement, par- 2 ticipants must share in all subsequent repayments and collections in 3 proportion to their percentage participation at the time of the 4 occurrence of the event. 5 (ii) When an originating bank funds the entire loan, it must receive 6 funding from the participants before the close of business of its 7 next business day. If the participating portions are not received 8 within that period, then the portions funded shall be treated as a 9 loan by the originating bank to the borrower. If the portions so 10 attributed to the borrower exceed the originating bank's lending 11 limit, the loan may be treated as nonconforming, rather than a viola- 12 tion, if: 13 1. The originating bank had a valid and unconditional partici- 14 pation agreement with a participating bank or banks that was 15 sufficient to reduce the loan to within the originating bank's 16 lending limit; 17 2. The participating bank reconfirmed its participation and the 18 originating bank had no knowledge of any information that would 19 permit the participant to withhold its participation; and 20 3. The participation was to be funded by close of business of 21 the originating bank's next business day. 22 (4) The following loans or extensions of credit are not subject to the 23 lending limits of this section: 24 (a) The discount of bills of exchange drawn in good faith against actual 25 existing values,; 26 (b) Tthe discount of bankers' acceptances of other banks,; 27 (c) Tthe discount of commercial or business paper actually owned by the 28 person negotiating the same, and; 29 (d) Tthe obligations of the United States or general obligations of any 30 state or of any political subdivision thereof, or obligation issued under 31 authority of theFfederalFfarmLloanAact;, shall not be considered as32money borrowed, nor shall the foregoing limitations apply to33 (e) Lloans made on warehouse receipts and bills of lading, when such 34 warehouse receipts and bills of lading cover nonperishable commodities of 35 the marketable value of at least one hundred twenty percent (120%) of the 36 amount loaned thereon.; 37 (f) Loansor obligations shall not be subject under this section to any38limitation based upon such capital and surplusand extensions of credit to 39 the extentthat such loans or obligations aresecured or covered by guar- 40 anties, or by commitments or agreements to take over or to purchase, made 41 by any Federal Reserve Bank or by the United States or any department, 42 bureau, board, commission, or establishment of the United States, includ- 43 ing any corporation wholly owned directly or indirectly by the United 44 States; or 45 (g) Loans, including portions thereof, secured by a segregated deposit 46 account in the lending bank, provided a security interest in the deposit 47 has been perfected under applicable law. 48The combined liabilities of the several members of any firm, copartnership49or unincorporated association to the loaning bank shall be included in the50liabilities of such firm, copartnership or unincorporated association and51shall be included in the liabilities of any member thereof in determining the52foregoing limitations.53 (5) Combination. Loans or extensions of credit to one (1) borrower shall 54 be attributed to another person and each person shall be deemed a borrower 55 when proceeds of a loan or extension of credit are to be used for the direct 8 1 benefit of the other person, to the extent of the proceeds so used, or when a 2 common enterprise is deemed to exist between the persons. 3 (a) Direct benefit. The proceeds of a loan or extension of credit to a 4 borrower shall be deemed to be used for the direct benefit of another per- 5 son and shall be attributed to the other person when the proceeds, or 6 assets purchased with the proceeds, are transferred to another person, 7 other than in a bona fide arm's length transaction where the proceeds are 8 used to acquire property, goods or services. 9 (b) Common enterprise. A common enterprise shall be deemed to exist and 10 loans to separate borrowers shall be aggregated: 11 (i) When the expected source of repayment for each loan or exten- 12 sion of credit is the same for each borrower and neither borrower has 13 another source of income from which the loan (together with the 14 borrower's other obligations) may be fully repaid. An employer shall 15 not be treated as a source of repayment under this paragraph because 16 of wages and salaries paid to an employee unless the standards of 17 paragraph (b)(ii) of this subsection are met; 18 (ii) When loans or extensions of credit are made: 19 1. To borrowers who are related directly or indirectly through 20 common control, including where one (1) borrower is directly or 21 indirectly controlled by another borrower; and 22 2. Substantial financial interdependence exists between or 23 among the borrowers. Substantial financial interdependence is 24 deemed to exist when fifty percent (50%) or more of one (1) 25 borrower's gross receipts or gross expenditures (on an annual 26 basis) are derived from transactions with the other borrower. 27 Gross receipts and expenditures include gross revenues/expenses, 28 intercompany loans, dividends, capital contributions, and simi- 29 lar receipts or payments; 30 (iii) When separate persons borrow from a bank to acquire a business 31 enterprise of which those borrowers will own more than fifty percent 32 (50%) of the voting securities or voting interests, in which case a 33 common enterprise is deemed to exist between the borrowers for pur- 34 poses of combining the acquisition loans; or 35 (iv) When the director determines, based upon an evaluation of the 36 facts and circumstances of particular transactions, that a common 37 enterprise exists. 38 (c) Loans to a corporate group. 39 (i) Loans or extensions of credit by a bank to a corporate group 40 may not exceed fifty percent (50%) of the bank's capital and surplus. 41 A corporate group includes a person and all of its subsidiaries. For 42 purposes of this paragraph, a corporation or a limited liability com- 43 pany is a subsidiary of a person if the person owns or beneficially 44 owns directly or indirectly more than fifty percent (50%) of the vot- 45 ing securities or voting interests of the corporation or company. 46 (ii) Except as provided in paragraph (c)(i) of this subsection, 47 loans or extensions of credit to a person and its subsidiary, or to 48 different subsidiaries of a person, are not combined unless either 49 the direct benefit or the common enterprise test is met. 50 (d) Loans to partnerships, joint ventures, and associations. 51 (i) Partnership loans. Loans or extensions of credit to a partner- 52 ship, joint venture or association are deemed to be loans or exten- 53 sions of credit to each member of the partnership, joint venture or 54 association. This rule does not apply to limited partners in limited 55 partnerships or to members of joint ventures or associations if the 9 1 partners or members, by the terms of the partnership or membership 2 agreement, are not held generally liable for the debts or actions of 3 the partnership, joint venture or association, and those provisions 4 are valid under applicable law. 5 (ii) Loans to partners. 6 1. Loans or extensions of credit to members of a partnership, 7 joint venture or association are not attributed to the partner- 8 ship, joint venture or association unless either the direct ben- 9 efit or the common enterprise test is met. Both the direct bene- 10 fit and common enterprise tests are met between a member of a 11 partnership, joint venture or association and such partnership, 12 joint venture or association, when loans or extensions of credit 13 are made to the member to purchase an interest in the partner- 14 ship, joint venture or association. 15 2. Loans or extensions of credit to members of a partnership, 16 joint venture or association are not attributed to other members 17 of the partnership, joint venture or association unless either 18 the direct benefit or common enterprise test is met. 19 (e) Loans to foreign governments and their agencies and instrumentali- 20 ties. 21 (i) Aggregation. Loans and extensions of credit to foreign govern- 22 ments and their agencies and instrumentalities shall be aggregated 23 with one another only if the loans or extensions of credit fail to 24 meet either the means test or the purpose test at the time the loan 25 or extension of credit is made. 26 1. The means test is satisfied if the borrower has resources or 27 revenue of its own sufficient to service its debt obligations. 28 If the government's support (excluding guarantees by a central 29 government of the borrower's debt) exceeds the borrower's annual 30 revenues from other sources, it shall be presumed that the means 31 test has not been satisfied. 32 2. The purpose test is satisfied if the purpose of the loan or 33 extension of credit is consistent with the purposes of the 34 borrower's general business. 35 (ii) Documentation. In order to show that the means and purpose 36 tests have been satisfied, a bank must, at a minimum, retain in its 37 files the following items: 38 1. A statement (accompanied by supporting documentation) 39 describing the legal status and the degree of financial and 40 operational autonomy of the borrowing entity; 41 2. Financial statements for the borrowing entity for a minimum 42 of three (3) years prior to the date the loan or extension of 43 credit was made or for each year that the borrowing entity has 44 been in existence, if less than three (3) years; 45 3. Financial statements for each year the loan or extension of 46 credit is outstanding; 47 4. The bank's assessment of the borrower's means of servicing 48 the loan or extension of credit, including specific reasons in 49 support of that assessment. The assessment shall include an 50 analysis of the borrower's financial history, its present and 51 projected economic and financial performance, and the signifi- 52 cance of any financial support provided to the borrower by third 53 parties, including the borrower's central government; and 54 5. A loan agreement or other written statement from the bor- 55 rower that clearly describes the purpose of the loan or exten- 10 1 sion of credit. The written representation will ordinarily con- 2 stitute sufficient evidence that the purpose test has been sat- 3 isfied. However, when, at the time the funds are disbursed, the 4 bank knows or has reason to know of other information suggesting 5 that the borrower will use the proceeds in a manner inconsistent 6 with the written representation, it may not, without further 7 inquiry, accept the representation. 8 (6) Calculation. For purposes of determining compliance with this sec- 9 tion, a bank shall determine its lending limit as of the last day of the pre- 10 ceding calendar quarter. A bank's lending limit calculated in accordance with 11 this section shall be effective on the date that the limit is to be calcu- 12 lated. If the director determines for safety and soundness reasons that a bank 13 should calculate its lending limit more frequently than required by this sub- 14 section, the director may provide written notice to the bank directing the 15 bank to calculate its lending limit at a more frequent interval, and the bank 16 shall thereafter calculate its lending limit at that interval until further 17 notice from the director. 18 (7) Nonconforming loans. A loan, within a bank's legal lending limit when 19 made, shall not be deemed a violation but shall be treated as nonconforming if 20 the loan is no longer in conformity with the bank's lending limit because: 21 (a) The bank's capital has declined, borrowers have subsequently merged 22 or formed a common enterprise, lenders have merged, or the lending limit 23 or capital rules have changed. A bank must use reasonable efforts to bring 24 a loan that is nonconforming under this subsection into conformity with 25 the bank's lending limit unless to do so would be inconsistent with safe 26 and sound banking practices. 27 (b) Collateral securing the loan to satisfy the requirements of a lending 28 limit exception has declined in value. A bank must bring a loan that is 29 nonconforming under this subsection into conformity with the bank's lend- 30 ing limit within thirty (30) calendar days, except when judicial proceed- 31 ings, regulatory actions or other extraordinary circumstances beyond the 32 bank's control prevent the bank from taking action. 33 (8) When in the judgment of the director theliabilities of any corpora-34tionloans and extensions of credit to any person, or the combinedliabilities35ofloans and extensions of credit to any corporation and one (1) or more of 36 its stockholdersto any bankare excessive, he shall require the reduction 37 thereof to such limits and within such time as he shall prescribe. 38 Provided, further, that the director may compel the reduction of any loan 39 which shall in his judgment appear excessive or dangerous. 40 SECTION 6. That Section 26-710, Idaho Code, be, and the same is hereby 41 amended to read as follows: 42 26-7106. LOANS TO OFFICERS. Except as authorized under this section, no 43 bank may extend credit in any manner to any of its own executive officers. 44 Any extension of credit under this section must be approved by the board of 45 directors of the bank, and may be made only if such credit extension comports 46 with the principles of safety and soundness and is in compliance with regula- 47 tion O of the board of governors of the federal reserve system, 12 C.F.R. 215. 48 SECTION 7. That Section 26-711, Idaho Code, be, and the same is hereby 49 amended to read as follows: 50 26-71107. REAL ESTATE HOLDINGS. A bank may purchase, acquire, hold and 51 convey real estate for the following purposes only: 11 1 (1) Such as shall be necessary for the convenient transaction of its 2 business, including at the same location as its banking offices other property 3 to rent as a source of income; provided, however, that no bank shall invest in 4 buildings and lots and furniture, fixtures and equipment in an amount greater 5 than fiftyper centpercent (50%) of the capital, surplus and capital notes6 structure of such bank. 7 (2) Such as shall be conveyed to it in satisfaction of debts previously 8 contracted in the course of business. 9 (3) Such as it shall purchase at sale on judgments, decrees, mortgage 10 foreclosure or trustees sale for debts previously contracted, but a bank shall 11 not bid at such sale a larger amount than is necessary to satisfy all debts 12 and costs necessary to obtain clear title. Such real estate shall be carried 13 on the books of the bank at the lower of cost or market value. Market value 14 shall be determined by a current appraisal prepared by an independent quali- 15 fied appraiser approved by the director. Thereafter, but no more frequently 16 than annually, the director may in his discretion request that the bank obtain 17 from an independent qualified appraiser approved by the director, a further 18 appraisal of market value or certification by the appraiser that the market 19 value has not declined. 20 (4) No real estate acquired under subsections (2) and (3) of this section 21 may be held for a longer period than five (5) years, provided, however, that 22 upon application by the bank, the director shall approve the continued holding 23 of any such real estate by the bank for an additional period of five (5) years 24 upon the bank's showing of its good faith attempt to dispose of the real 25 estate within the first five (5) year period, or that disposal within the 26 first five (5) year period would be detrimental to the bank; and provided fur- 27 ther that the bank shall, during the second five (5) year period, at the end 28 of each year beginning at the end of the sixth year in which the property is 29 held, write down the value of such real estate by twenty percent (20%) of the 30 value at which such real estate is carried on its books at the beginning of 31 the second five (5) year period. Value at the beginning of the second five (5) 32 year period shall be the lower of cost or market value as determined pursuant 33 to appraisal as provided in subsection (3) of this section. Nothing in this 34 section shall be construed to prevent a bank from making loans secured by real 35 estate as provided in this act, or a trust department holding and conveying 36 real estate in trust. 37 (5) A bank may, with the approval of the director and the board of gover- 38 nors of the Federal Reserve System or the Federal Deposit Insurance Corpora- 39 tion invest in bank premises or in the stock, bonds, debentures, or other 40 obligations of any corporation holding the banking buildings, lots and furni- 41 ture, fixtures and equipment of such bank in an amount not to exceed the capi- 42 tal and surplus of the bank. 43 SECTION 8. That Section 26-712, Idaho Code, be, and the same is hereby 44 amended to read as follows: 45 26-71208. VALUATION OF ASSETS. No bank shall enter or at any time carry 46 on its books any of its assets at a valuation exceeding their actual cost to 47 the bank; nor shall the value of any of its assets be increased on the books 48 of the bank without the written consent of the director. Additional charges, 49 delinquency charges and other similar charges on consumer credit transactions 50 permitted by and made in compliance with the Uniform Consumer Credit Code and 51 added to the principal balance of the loan, shall not come within the prohibi- 52 tion of this section. 12 1 SECTION 9. That Section 26-713, Idaho Code, be, and the same is hereby 2 amended to read as follows: 3 26-71309. STATUTORY BAD DEBT. Every bank carrying any bad debt, or a debt 4 of doubtful value, as an asset shall, upon the request or demand of the direc- 5 tor, collect the same or put it in good bankable condition or charge it out of 6 its books. Any debt on which interest is past due and unpaid for a period of 7 six (6) months, unless the same is well secured and in process of collection, 8 shall be considered a bad debt within the meaning of this section. 9 SECTION 10. That Section 26-714, Idaho Code, be, and the same is hereby 10 amended to read as follows: 11 26-7140. OWNERSHIP AND LEASING OF PROPERTY FOR CUSTOMERS. A bank may 12 become the owner and lessor of personal property acquired upon the specific 13 request and for the use of a customer and may incur such additional obliga- 14 tions as may be incident to becoming an owner and lessor of such property. 15 SECTION 11. That Section 26-715, Idaho Code, be, and the same is hereby 16 amended to read as follows: 17 26-7151. LENDING OF CREDIT -- SURETYSHIP AND GUARANTYSHIP. A bank may 18 lend its credit, bind itself as a surety to indemnify another, or otherwise 19 become a guarantor, only if it has a substantial interest in the performance 20 of the transaction involved or has a segregated deposit sufficient in amount 21 to cover the bank's total potential liability. 22 SECTION 12. That Section 26-716, Idaho Code, be, and the same is hereby 23 amended to read as follows: 24 26-7162. VALIDITY OF TRANSACTIONS. Nothing in any law of this state shall 25 in any manner whatsoever affect the validity of, or render void or voidable, 26 the payment, certification or acceptance of a check or other negotiable 27 instrument, or any other transaction by a bank in this state, because done or 28 performed during any time other than regular banking hours. 29 SECTION 13. That Section 26-717, Idaho Code, be, and the same is hereby 30 amended to read as follows: 31 26-7173. ADVERSE CLAIM TO BANK DEPOSIT. Notice to any bank of an adverse 32 claim to a deposit standing on its books to the credit of any person shall not 33 require the bank to recognize the adverse claim unless the adverse claimant 34 shall: 35 (a1)pProcure a restraining order, injunction or other appropriate proc- 36 ess against the bank from a court of competent jurisdiction wherein the 37 person to whose credit the deposit stands is made a party and served with 38 summons,; or 39 (b2)eExecute to said bank, in a form and with sureties acceptable to the 40 bank, a bond indemnifying the bank from any and all liability, loss, dam- 41 age, costs and expenses for and on account of the payment of such adverse 42 claim or the dishonor of the check or other order of the person to whose 43 credit the deposit stands on the books of the bank. 44 This section shall not apply in any instance where the person to whose 45 credit the deposit stands is a fiduciary for such adverse claimant, and the 46 facts constituting such relationship and the facts showing reasonable cause 13 1 for belief on the part of the claimant that the fiduciary is about to 2 misappropriate the deposit, are made to appear by the affidavit of the claim- 3 ant. 4 SECTION 14. That Section 26-718, Idaho Code, be, and the same is hereby 5 amended to read as follows: 6 26-7184. ACCOUNT OF PERSON UNDER DISABILITY. Whenever any minor or any 7 person under disability shall become a depositor, as defined in section 8 26-106, Idaho Code, in any bank in his or her name, such bank may pay such 9 money on the check, order or endorsement of such depositor the same as in 10 cases of depositors not under disability, and such payment shall be in all 11 respects valid in law. 12 SECTION 15. That Section 26-719, Idaho Code, be, and the same is hereby 13 amended to read as follows: 14 26-7195. BRANCH OR OFFICE AT WHICH INSTRUMENTS ARE TO BE PRESENTED MUST 15 BE INDICATED. All checks, drafts, bills of exchange or other orders for the 16 payment of money drawn against any bank operating branch banks shall indicate 17 the particular bank and branch at which the same are to be presented for pay- 18 ment or acceptance. 19 SECTION 16. That Section 26-801, Idaho Code, be, and the same is hereby 20 amended to read as follows: 21 26-801. BORROWING MONEY -- LIMITATIONS. At no time shall the total bor- 22 rowings of any bank exceed in the aggregate an amount equal to the capitaland23surplusstructure of the bank, except with the consent of the director. 24 For the purpose of computing total borrowings the following items shall 25 not be included: 26 (a1) Federal funds purchased. 27 (b2) The sale of securities by a bank, under an agreement to repurchase 28 at the end of a stated period. 29 (c3) Borrowings from the Federal Reserve System. 30 (d4) The sale of mortgage loans by a bank, under agreement to repurchase 31 at the end of a stated period. 32 (e5) Money borrowed to meet seasonal requirements. 33 (f6) Money borrowed to meet unexpected withdrawals. 34 (g7) Capital notes issued in accordance with section 26-802, Idaho Code. 35 The total of all borrowings by a bank including those items excluded from 36 the computation of total borrowings may not exceed in the aggregate an amount 37 equal to two and one-half (2 1/2) times the capitaland surplusstructure of 38 the bank, except with the consent of the director. 39 Whenever it shall appear to the director that a bank is borrowing money in 40 excess of the above limitation, or for purposes other than as specified above, 41 he may require it to reduce such borrowings within a time to be fixed by him. 42 SECTION 17. That Section 26-107, Idaho Code, be, and the same is hereby 43 amended to read as follows: 44 26-107. SECTIONS APPLICABLE TO NATIONAL BANKS. The provisions of sections 45 26-215, 26-301 through and including, 26-309, 26-311, 26-7162, 26-7173, 46 26-7184, 26-1203, 26-1206, 26-1207, 26-1208, and 26-1209, 26-1601 through 47 26-1605, 26-2601 through 26-2612, Idaho Code, shall also apply to national 14 1 banks.
STATEMENT OF PURPOSE RS 13498 The Idaho Bank Act contains limitations on amounts of certain types of loans that may be made by Idaho state-chartered banks. The Department regularly receives requests from banks to exceed these limits, primarily because the limits are outdated and inconsistent with limits imposed by other states and the federal government. The legislation would reduce the regulatory burden for Idaho state- chartered banks by revising the limitations to clarify them, raising the amounts, and making the definitions used to determine the limitations more uniform with those applicable to banks in other states and national banks. FISCAL IMPACT No fiscal impact. CONTACT Name: Mary Hughes Agency: Department of Finance Phone: 208-332-8030 Statement of Purpose/Fiscal Impact H 524