See also DFI-Bkg
, Wis. adm. code.
The test for whether this state can, consistent with due process, exercise its police power to regulate an out-of-state entity is whether the out-of-state entity has incidents and requires activities within the state intimately related to local welfare. In this case, the contacts between the entity and residents of this state, coupled with the state's interest in exercising its police power by enforcing its law governing adjustment service companies, sufficed to satisfy due process. Payday Loan Resolution, LLC v. DFI, 2019 WI App 28
, 388 Wis. 2d 117
, 931 N.W.2d 279
Banking institutions review board. 220.035(1)(a)
The banking institutions review board shall advise the division and others in respect to improvement in the condition and service of banks and banking business in this state and shall review the acts and decisions of the division with respect to banks, except for such acts and decisions of the division under chs. 138
, and 218
, and shall perform such other review functions in relation to banking as are provided by law. The banking institutions review board may require the division to submit any of the division's actions to it for its approval. The board may make rules of procedure as provided in ch. 227
Any interested person aggrieved by any act, order or determination of the division may apply for review thereof by filing a petition with the secretary of the board within 10 days after the act, order or determination to be reviewed, which petition shall state the nature of the petitioner's interest, facts showing that petitioner is aggrieved and directly affected by the act, order or determination to be reviewed and the ground or grounds upon which petitioner claims that the act, order or determination should be modified or reversed. The issues raised by the petition for review shall be considered by the board upon giving at least 10 days' written notice of the time and place when said matter will be heard to the division and the person applying for review or that person's attorney and upon any other person who participated in the proceedings before the division or that other person's attorney. Notice of hearing may be given by registered mail, return receipt requested, and the return receipt signed by the addressee or the addressee's agent shall be presumptive evidence that such notice was received by the addressee on the day stated on the receipt. Any other interested party shall have the right to appear in any proceeding before the board.
The board shall base its determination upon the record made by the division and may also receive additional evidence to supplement such record if it finds it necessary. The board shall affirm, modify or reverse the act, order or determination under review. The burden of overcoming the act, order or determination of the division under review shall be on the person seeking the review. Any findings of fact made by the division shall be sustained if supported by substantial evidence in the record made by the division or in such record supplemented by evidence taken by the board. The board shall have the powers granted by s. 885.01 (4)
. Any person causing a witness to be subpoenaed shall advance and pay the fees and mileage of such witness which shall be the same as in circuit court. The fees and mileage of witnesses who are called at the instance of the division shall be paid by the state in the same manner that other expenses are audited and paid upon presentation of properly verified vouchers approved by at least one member of the board and charged to the appropriation of the division.
Each member of the board and all employees of the board shall, with respect to the disclosure of information concerning banks, be subject to the same requirements and penalties as the employees of the division.
The banking institutions review board may make rules and regulations to safeguard the interest of depositors and stockholders generally in emergencies.
Any final order or determination of the banking institutions review board shall be subject to review in the manner provided in ch. 227
The board shall have an office in the quarters of the division. The board's secretary shall keep a record of the meetings of the board and of all hearings, decisions, orders and determinations of the board. The board may make reasonable rules not inconsistent with law as to the time of meetings, time of hearings, notice of hearings and manner of conducting same and of deciding the matters presented. The board may direct that hearings and testimony be taken by any member of the board or by an examiner designated by the board.
The board may employ assistance necessary in the performance of its work and fix reasonable compensation therefor, subject to any statutes applicable thereto.
Any bank whose assets, upon the basis of a fair valuation, are equal to or in excess of its liabilities exclusive of capital stock, preferred stock, capital notes, and debentures, shall be deemed to be safe and solvent. The banking institutions review board may prescribe schedules, rules, and regulations for arriving at a fair valuation of various classes of assets of banks.
See also ch. DFI-Bkg 10
, Wis. adm. code.
The remedy under sub. (3) is exclusive when contested issues of public interest and constitutionality could have been remedied on administrative review. First National Bank of Wisconsin Rapids v. M & I Peoples Bank of Coloma, 82 Wis. 2d 529
, 263 N.W.2d 196
Powers of division. 220.04(1)(a)
The division shall examine at least once every 18 months the cash, bills, collaterals, securities, assets, books of account, condition, and affairs of each bank and trust company bank doing business in this state, except national banks. For that purpose the division may examine on oath any of the officers, agents, directors, clerks, stockholders, customers, or depositors thereof, touching the affairs and business of such institution. In conducting examinations under this paragraph, the division may accept and rely on information collected by other agencies or independent 3rd parties in determining whether a bank or trust company bank has satisfied any requirement that is part of the examination. In making such examinations of banks, the division shall determine the fair valuation of all assets in accordance with the schedules, rules, and regulations prescribed by the banking institutions review board.
In lieu of any examination required to be made by the division, the division may accept any examination that may have been made of any bank or trust company bank within a reasonable period by a bank supervisory agency, as defined in s. 221.0901 (2) (d)
, if a copy of the examination is furnished to the division.
The division shall examine, or cause to be examined, any bank when requested by the board of directors of such bank. The division shall also ascertain whether such bank transacts its business at the place designated in the articles of incorporation, and whether its business is conducted in the manner prescribed by law.
The division may, in the performance of official duties, issue subpoenas and administer oaths. In case of any refusal to obey a subpoena issued by the division, the refusal shall be reported at once to the circuit court of the circuit in which the bank is located. The court shall enforce obedience to the subpoena in the manner provided by law for enforcing obedience to subpoenas of the court.
Whenever the division is of the opinion that the loaning, investing, or other banking policies or practices of any officer or director of any bank have been prejudicial to the best interests of such bank or its depositors, or that such policies or practices, if put into operation or continued, will endanger the safety or solvency of said bank or impair the interests of its depositors, the division may, with the approval of the banking institutions review board, request the removal of such officer or director. Such request shall be served on the bank and on such officer or director in the manner provided by law for serving a summons in a court of record or shall be transmitted to said bank and officer or director by registered mail with return receipt requested. If such request for removal is not complied with within a reasonable time fixed by the division, the division may by order, with like approval of the banking institutions review board, remove such officer or director, but no order of removal shall be entered until after an opportunity for hearing before the banking institutions review board is given to such officer or director upon not less than 10 days' notice. An order of removal shall take effect as of the date issued. A copy of such order shall be served upon the bank and upon such officer or director in the manner provided by law for service of a summons in a court of record or by mailing such copy to the bank or officer or director at the bank's or officer's or director's last-known post-office address. Any removal under this subsection shall be effective in all respects the same as if made by the board of directors or stockholders of said bank. Any officer or director removed from office under the provisions of this subsection shall not be reelected as an officer or director of any bank without the approval of the division and the banking institutions review board. An order of removal under this subsection shall be deemed a final order or determination of the banking institutions review board within the meaning and contemplation of s. 220.035 (3)
The division, in connection with the liquidation of any bank or banking corporation or when called upon to approve any plan of reorganization and stabilization thereof or when the division is satisfied the interests of the depositors and creditors in assets held under any trust arrangement so require in connection with such reorganization and stabilization, may cause the bank or banking corporation or trust to be audited. The expense of the audit shall, upon the certificate of the division, be refunded forthwith to the division by the bank, banking corporation or the trustees out of the assets of the bank, banking corporation or trust. Such charges shall be a preferred claim against the assets.
The division, with the approval of the banking institutions review board, may establish uniform savings rules which shall be adopted by every bank and trust company bank. Such rules may provide the conditions under which banks or trust company banks may accept deposits.
In times of financial distress, the commissioner with the approval of the banking institutions review board may by order restrict the withdrawal of any class of deposits in any bank or trust company bank. The pendency of any proceeding for review of such order shall not stay or suspend the operation of such order.
The division, with the approval of the banking institutions review board, may establish rules regulating the kind and amount of foreign bonds or bonds and securities offered for sale by the international bank for reconstruction and development, the inter-American development bank, the international finance corporation, the African development bank and the Asian development bank which state banks and trust company banks may purchase, except that such rules shall not apply to bonds and securities of the Canadian government and Canadian provinces, which are payable in American funds.
“Fiduciary property" means that property held by an organization as trustee or in any fiduciary capacity requiring the issuance of letters by a court or probate registrar in this state.
The division may, with the approval of the banking institutions review board, establish uniform rules regulating organizations engaging in fiduciary operations. Such rules may:
Authorize the division or any other state agency having jurisdiction over the organization to require the organization to submit periodic reports, in such form and containing such information as the division may prescribe, regarding the organization's fiduciary operations.
Require the organization to maintain separate books of account for its fiduciary operations and to maintain fiduciary property separate from the property of the organization.
Require the organization to maintain reasonable safeguards to protect fiduciary property including the maintenance of an indemnity fund in the same manner as that required of trust company banks under s. 223.02 (1)
Unless the division is expressly restricted by statute from acting under this subsection with respect to a specific power, right, or privilege, the division by rule may, with the approval of the banking institutions review board, authorize state banks to exercise any power under the notice, disclosure, or procedural requirements governing national banks or to make any loan or investment or exercise any right, power, or privilege permitted national banks under federal law, regulation, or interpretation. Notice, disclosure, and procedures prescribed by statute which may be modified by a rule adopted under this subsection include, but are not limited to, those provided under s. 138.056
. A rule adopted under this subsection may not affect s. 138.041
or chs. 421
or restrict powers specifically granted state banks under this chapter or ch. 221
“Official" means a director, officer, employee or agent of a regulated entity or any other person which participates in the conduct of the affairs of a regulated entity.
“Regulated entity" means a bank, universal bank, trust company bank, and any other entity that is described in s. 220.02 (2)
as under the supervision and control of the division.
Notice of hearing.
The division may serve a notice of a hearing which complies with s. 227.44 (1)
on an official or regulated entity if, as a result of an examination or report made to the division, the division determines any of the following:
The official or regulated entity is violating or is about to violate the banking laws of this state or any rule or order issued by the division.
The regulated entity is being operated in an unsafe or unsound manner.
An official is violating or is about to violate a written condition which the division imposed in connection with granting an application or request by the regulated entity, or a written agreement entered into with the division.
Cease and desist order.
If the recipient of a notice of hearing fails to appear or if upon the record made at the hearing the division finds that a violation or unsafe or unsound practice has been established, the division may issue and serve on the official or regulated entity an order to cease and desist from the violation or practice. The order may require the official or regulated entity to correct the conditions resulting from the violation or practice. An order issued under this paragraph is effective upon service on the official or regulated entity named in the order and may be appealed under s. 220.035
If the division finds that a violation or practice described in par. (b)
is likely to cause insolvency or substantial dissipation of assets or earnings of the regulated entity or seriously prejudice the interests of its depositors, the division may issue a temporary order requiring the official or regulated entity named in the notice of hearing to cease and desist from the violation or practice and to take affirmative action to prevent insolvency, dissipation of assets or earnings or prejudice to depositors pending completion of the proceedings. The temporary order is effective upon service on the official or regulated entity named in the notice of hearing and remains effective and enforceable pending completion of the administrative proceedings unless suspended, set aside or limited by a court as provided in subd. 2.
Within 20 days after an official or regulated entity is served with a temporary order under subd. 1.
, the official or regulated entity may apply to the circuit court for the county within which the regulated entity is located for an injunction setting aside, limiting or suspending the enforcement of the order pending the completion of the administrative proceeding.
As part of an order issued under par. (d)
, the division may impose a forfeiture of up to $10,000 for each violation or practice under par. (b)
An official or regulated entity who violates an order issued under par. (d)
shall, for each violation, forfeit not more than $1,000 per day for each day the violation continues. Assessment of a forfeiture under this subdivision shall commence on the latest of 10 days after the date of delivery of the order or, if an appeal is taken under s. 220.035
, 10 days after the date of the decision of the banking institutions review board.
The division may institute proceedings to recover a forfeiture under par. (f)
or to enjoin the violation of an order issued under par. (d)
and, after notice and opportunity for a hearing as provided in sub. (4)
, may order the removal of an official who commits a violation or engages in a practice under par. (b)
or who violates an order issued under par. (d)
, if the division finds that the practice or violation involves personal dishonesty resulting in financial gain to the official or demonstrates a willful or continuing disregard for the safety or soundness of the regulated entity, and the division finds any of the following:
As a result of the practice or violation the regulated entity has suffered or will probably suffer substantial financial loss or other damage.
The interests of the depositors could be seriously prejudiced by the violation or practice.
If it appears to the division that a person has engaged or is about to engage in an act or practice constituting a violation of the laws of this state relating to banks and banking, including this chapter, chs. 217
and ss. 138.09
, and 138.14
, or a rule promulgated or order issued under those laws, the division may bring an action in the name of the state in the circuit court of the appropriate county to enjoin the acts or practices and to enforce compliance with the laws, rules or orders, or the division may refer the matter to the district attorney of the appropriate county or, if the alleged violation may be enforced by the attorney general under sub. (12)
or s. 220.12
or 224.06 (7)
or is statewide in nature, to the attorney general. Upon a proper showing, the court may grant a permanent or temporary injunction or restraining order, appoint a receiver for the defendant or the defendant's assets or order rescission of any acts determined to be unlawful. The court may not require the division to post a bond.
In order to carry out ss. 220.07
, the division may commence and maintain in the division's name any and all actions necessary or proper to enforce any of said sections.
If the division has information that causes the division to believe that any bank, trust company bank, or any other person subject in whole or in part to supervision or control by the division, or any officer, employee, member, or manager thereof, has violated any law, rule, or order that subjects the person to prosecution for a criminal offense or to a penalty, the division shall bring such information to the attention of the banking institutions review board, with the division's recommendation in writing as to action to be taken. The banking institutions review board shall, if in its judgment probable cause exists for believing that a criminal offense has been committed, or a penalty incurred, call the facts and information to the attention of the attorney general whose duty it shall be to cause prosecution or other action to be instituted if, in the attorney general's judgment, the facts warrant. This subsection does not prevent the institution of any prosecution by any district attorney of this state with or without any advice or act on the part of the attorney general. This subsection does not preclude the division, in any case where the division deems it important to act immediately, from causing any arrest and prosecution where the division is satisfied that there is reason to believe the offense has been committed and that prosecution should be immediately commenced.
See also ch. DFI-Bkg 11
, Wis. adm. code.
A hearing examiner had the discretion under sub. (9) (d) to correct conditions resulting from the plaintiff's unlicensed operation as an adjustment service company in violation of s. 218.02 (2) (a) 1. An order that the plaintiff disgorge itself of fees paid to the plaintiff by Wisconsin debtors that the plaintiff was not legally entitled to collect was a reasonable conclusion consistent with s. 218.02 (2) (a) 1. and supported by the facts of record. Morgan Drexen, Inc. v. DFI, 2015 WI App 27, 361 Wis. 2d 271
, 862 N.W.2d 329
Examination fees and assessments. 220.05(1)(1)
The division shall assess each state bank and trust company bank for the cost of each examination made, which cost shall be determined by the division and shall include the salaries and expenses of all examiners and other employees of the division actively engaged in such an examination, the salaries and expenses of any other person whose services are required in connection with such examination and any reports thereof, and any other expenses which may be directly apportioned. Any charge so made shall be paid within 30 days from the time the bank receives notice of the assessment.
On or before July 15 of each year, each state bank and trust company bank shall pay to the division an annual assessment for the maintenance of the functions of the division in an amount to be determined by the banking institutions review board, but which shall not exceed 8 cents per $1,000 of resources, or part thereof, for the first $5,000,000 and shall not exceed 6 cents per $1,000, or part thereof, for all resources over $5,000,000.
Whenever in the judgment of the division, the condition or conduct of any bank renders it necessary or expedient to make an extra examination or to devote any extraordinary attention to its affairs, the division shall have the authority to make any and all necessary extra examinations and audits or partial audits and to devote any necessary attention to the conduct of its affairs; and such bank shall pay for each additional examination, and for each audit or partial audit, the actual cost thereof. Where an audit or partial audit is ordered, the actual reasonable cost of auditors shall be charged. Before directing any examination in excess of 2 or any audit or partial audit, the division shall examine the audits and examinations of any clearing house association as to the bank in question which may be furnished to it and shall avoid duplication of examinations, audits or partial audits wherever reasonably possible. In case of audits or partial audits for which a charge may be made under the provisions of this section, the division shall promptly send a copy to the bank and the bank shall pay the reasonable cost thereof. When the division delivers to a bank a copy of any examination, audit or partial audit, the division may by letter accompanying same require the bank to have the receipt of same acknowledged in the record of the next meeting of directors of the bank and may require that there be sent to the division a certified copy of action by the directors showing that all the directors of the bank have read said copy and are familiar with its contents and have signed a statement to such effect on the copy received by the bank and may require that a duplicate of such signed statement signed by all directors to be sent to the division to be attached to and filed with the original of such examination, audit or partial audit on file with the division. Failure of the bank or its board of directors or any of them to comply with any such order or direction of the division within a reasonable time fixed by it shall be sufficient ground for the taking of possession of said bank by the division and liquidating said bank under s. 220.08
Any bank or trust company holding any property in trust or in any fiduciary capacity or as custodian or bailee shall pay in addition to the fees and assessments provided for in sub. (2)
the actual reasonable cost of any examinations conducted by the division of the books, records and business of the bank or trust company insofar as they relate to the property held in trust or other fiduciary capacity or as custodian or bailee.
The cost to be paid under par. (a)
shall include a fair charge for time of assistants and office overhead. The cost shall be determined by the division within a reasonable time after each examination has been completed. A statement of the charge determined by the division shall be promptly sent to the bank or trust company. Each bank or trust company shall pay the charge within 10 days after receipt of the statement. The cost determined under this subsection shall include the cost of furnishing a copy of the statement to the bank or trust company.
Not to disclose information. 220.06(1m)
No division employee may examine a bank or licensee in which that person is interested as a stockholder, officer, or employee. No division employee may examine a bank or licensee located in the same village, city, or county with any bank or licensee in which that person is so interested. Employees in the division, and each member and employee of the banking institutions review board, shall keep secret all facts and information obtained in the course of examinations or from reports not under s. 221.1002 (1)
filed by a bank or licensee with the division, except so far as the public duty of the person requires reporting upon or taking special action regarding the affairs of any bank or licensee, and except when called as a witness in any criminal proceeding or trial in a court of justice. The division may furnish to the federal deposit insurance corporation, to a federal home loan bank, or to any regulatory authority for state or federal financial institutions, insurance, or securities a copy of any examination made of any such bank or licensee or of any report made by such bank or licensee and may give access to and disclose to the corporation or to any regulatory authority for state or federal financial institutions, insurance, or securities any information possessed by the division, or to a federal home loan bank any information created by the division, with reference to the conditions or affairs of any such insured bank or licensee if the regulatory authority agrees to treat all information received with the same degree of confidentiality as applies to reports of examination that are in the custody of the division.
If any employee in the division or any member of the banking institutions review board or any employee thereof discloses the name of any debtor of any bank or licensee, or anything relative to the private account or transactions of such bank or licensee, or any fact obtained in the course of any examination of any bank or licensee, except as herein provided, that person is guilty of a Class I felony and shall be subject, upon conviction, to forfeiture of office or position.
Examination reports possessed by a bank or licensee are confidential, remain the property of the division and are returnable immediately on request of the division.
Officers and employees of a bank or licensee may not redisclose information in the examination reports. A person violating this paragraph may be fined not less than $100 nor more than $1,000 or imprisoned not more than 6 months or both.
Employees of the division shall not be subject to any civil liability or penalty, nor to any criminal prosecution, for any error in judgment or discretion made in good faith and upon reasonable grounds in any action taken or omitted by the division in the division's official capacity under the provisions of chs. 220
History: 1991 a. 316
; 1995 a. 27
Banks; impairment of capital. 220.07(1)(1)
Capital impaired; deficiency.
Whenever the division determines that the capital of any bank is impaired or reduced below the amount required by law or the articles of incorporation, or below the amount certified to the division as paid in, the division may require such bank to make good such impairment or deficiency within 60 days after the date of such requisition. In any case, where the capital of a bank becomes impaired or reduced below the amount required by law or the articles of incorporation, the board of directors of such bank may make a proportional assessment upon all of the stock of the bank to make good such deficiency, and may provide that the amount of such deficiency shall be due and payable at a time to be fixed by such board of directors, which time shall be not less than 10 days after notice of the assessment. Notice to stockholders residing in another state shall be given by registered mail and a return receipt demanded. If any stockholder fails or neglects to pay the amount of the assessment against his or her stock for 10 days after the assessment becomes due and payable, the directors of the bank may offer the stock for sale, and sell the stock at public sale upon 10 days' notice to be given by posting copies of the notice of sale in 5 public places in the town, village or city where the bank is located. Upon the sale, the purchaser shall forthwith pay the amount of the assessment against the stock. The amount received from the sale of the stock, less the cost and expenses of the sale, shall be paid to the original owner of the stock.
(2) Review of order.
In any case where the division has made an order requiring capital to be made good, the bank may within 10 days after the making of said order secure a review of same by the banking institutions review board by filing with the division a statement requesting such review and stating the grounds of objection to the order of the division. Said board shall promptly conduct a hearing thereon after affording reasonable notice to the bank and shall affirm, modify, or set aside the order of the division. No such review or hearing shall extend the time for compliance with the order of the division unless the banking institutions review board shall so direct.
Delinquent banks; division may take possession. 220.08(1)(1)
Whenever it shall appear to the division that any bank or banking corporation to which this chapter is applicable has violated its charter or any law of the state, or is conducting its business in an unsafe or unauthorized manner, or if the capital of any such bank or banking corporation is impaired, or if any such bank or banking corporation shall refuse to submit its books, papers, and concerns to the inspection of any examiner, or if any officer thereof shall refuse to be examined upon oath touching the concerns of any such bank or banking corporation, or if any such bank or banking corporation shall suspend payment of its obligations, or if from any examination or report provided for by this chapter the division shall have reason to conclude that such bank or banking corporation is in an unsound or unsafe condition to transact the business for which it is organized, or that it is unsafe and inexpedient for it to continue business, or if any such bank or banking corporation shall neglect or refuse to observe an order of the division, specified in s. 220.07
, or if the division shall find that the management of the bank or the manner in which the work of any of its officers or employees is done, if continued, is such as to endanger the safety or solvency of the bank and the division shall have made written recommendations for change in management or officers and employees and such recommendation shall not have been complied with after the expiration of a reasonable time therefor fixed by the division, the division may take possession of the property and business of such bank or banking corporation, and retain such possession until such bank or banking corporation shall resume business, or its affairs be finally liquidated as herein provided. Whenever facts have come to the attention of the division which cause the division to believe that it may be necessary or advisable to take possession of a bank, or if the division has reasonable cause to believe that any of the grounds for taking possession of a bank, specified in this section, exist, the division shall bring the matter to the attention of the banking institutions review board, reporting to them in writing the situation and the division's recommendation as to action to be taken. The banking institutions review board shall promptly consider the matter and promptly decide whether or not the division should take possession of the bank. If the review board decides that the division should take possession, the division shall forthwith take possession as hereinbefore provided. If at any time the division is confronted with an emergency situation where in the division's opinion it is imperative in order to protect the public or for other reasons that possession of the bank be at once taken, the division may do so forthwith without referring the matter to the banking institutions review board.
On taking possession of the property and business of any such bank or banking corporation, the division shall forthwith give notice of such fact to any and all banks or banking corporations holding or in possession of any assets of such bank or banking corporation. No bank or banking corporation knowing of such taking possession by the division, or notified as aforesaid, shall have a lien or charge for any payment, or advance, thereafter made, or liability thereafter incurred, against any of the assets of the bank or banking corporation of whose property and business the division shall have taken possession as aforesaid, except that all drafts issued and delivered against existing balances on deposit in any drawee banks or banking corporations shall be paid on presentation, if they correspond by number and amount to a list to be certified to them by the division, and if there be insufficient funds in deposit such drafts shall be preferred claims. Such bank or banking corporation may, with the consent of the division, resume business upon such conditions as may be approved by the division.
The division on taking possession of a bank for liquidation shall, with the approval of the circuit court, withdraw from the general fund of such bank an amount of money deemed adequate by the division and the circuit court for the payment of current monthly expenses and set up a working fund. Such working fund shall be deposited by the division in one or more state banks in an account known as “bank liquidation account" together with like funds from other banks in liquidation. Once each month the expenses so paid from the working fund shall be approved by the circuit court. Upon such approval, the working fund of each liquidating bank shall be reimbursed from the general fund of said liquidating bank so that the balance of each working account in said bank liquidation account shall always be the amount approved by the circuit court. When a liquidating bank is ready to pay the final dividend and final expenses, the working fund assigned to the bank liquidation account shall be reassigned back to the general account of such bank.