TITLE 51A
BANKS AND BANKING
Chapter
01 Definitions, General Provisions And Penalties
02 Division Of Banking
03 Organization, Applications, And Capital Structure Of Banking Corporations
04 General Powers Of Banks
05 Trust Business Of Banks
06 Trust Companies [Repealed And Transferred]
06A Creation Of Trust Companies
07 Branch Banks And Drive-In Facilities
08 Remote Service Banking
09 Bank Service Corporations
10 Bank Deposits
11 Safe Deposit And Safekeeping
12 Bank Loans
13 Bank Records, Accounts And Reports
14 Reorganization Of Banks
15 Suspension And Liquidation Of Banks
16 Money Order Business Licenses [Repealed]
17 Money Transmission
CHAPTER 51A-1
DEFINITIONS, GENERAL PROVISIONS AND PENALTIES
51A-1-1 Applicability of provisions--Retention of capital structure by banks.
51A-1-2 Definition of terms.
51A-1-3 Adverse claims against bank deposits, contents of safe deposit box or property in safekeeping.
51A-1-4 Disqualification of officer, employee or director for violation--Civil liability.
51A-1-5 Failure to obey director's orders--Civil liability.
51A-1-6 Procedure to recover fine.
51A-1-7 Injunction against violation.
51A-1-8 Liability of bank as insurer or as guarantor or endorser of security instrument prohibited.
51A-1-9 Concealment of bank transactions as misdemeanor.
51A-1-10 False entries--Obstruction of examination--Felonies.
51A-1-11 False filing as misdemeanor.
51A-1-12 Payment or indemnification of person for fine, penalty or judgment unlawful--Civil liability--Exceptions--Action to recover payments.
51A-1-13 Misappropriation of funds or information by officer, director, or employee as felony.
51A-1-14 Receipt, possession, or sale of misappropriated funds or information as felony.
51A-1-15 Acknowledgments by officers or employees of banks validated.
51A-1-16 Severability of provisions.
51A-1-17 No duty to disclose information about customers--Exceptions.
51A-1-18 Agreements or compacts with other jurisdictions--Administration--Filing--Availability.
51A-1-19 Central bank digital currency--Public transaction prohibited.
51A-1-20 Central bank digital currency--Private transaction--Alternative required.
51A-1-1. Applicability of provisions--Retention of capital structure by banks.
Any bank, branch bank, drive-in facility, bank service corporation or other entity by its term subject to this title, is subject to this title, except that the legality of their organization under prior law is not affected by this title. Banks may retain their capital structure. However the director may order any bank to comply with the capitalization requirements of this title or such additional amounts as he deems necessary upon a finding by him that the sound conduct of banking will be jeopardized by the retention of such prior capital structure.
Source: SL 1969, ch 11, § 1.13; SDCL, § 51-15-13; SL 1988, ch 377, § 11; SDCL, § 51-15-1.1.
51A-1-2. Definition of terms.
Terms used in this title mean:
(1) "Articles of incorporation," articles of incorporation for a bank organized by incorporators as a corporation pursuant to chapter 47-1A and articles of organization for a bank organized by organizers or members as a limited liability company pursuant to chapter 47-34A;
(2) "Bank," any corporation or limited liability company, organized pursuant to chapter 47-34A, authorized under this title to engage in the business of banking or in the combined business of a bank and trust company or in the combined business of a bank with trust powers;
(3) "Bank holding company," a bank holding company as defined in 12 U.S.C. 1841, as amended as of January 1, 1988;
(4) "Banking," the business of receiving deposits, discounting commercial paper, or buying and selling exchange, and any other activity authorized by this title;
(5) "Banking day," that part of any day on which a bank is open to the public for carrying on substantially all of its banking functions;
(6) "Board of directors," board of directors for a bank organized by incorporators as a corporation pursuant to chapter 47-1A and a manager for a manager-managed bank or a member for a member-managed bank organized as a limited liability company pursuant to chapter 47-34A;
(7) "Branch bank," a branch place of business maintained by a bank to conduct its banking business;
(8) "By-laws," by-laws for a bank organized by incorporators as a corporation pursuant to chapter 47-1A and operating agreement for a bank organized by organizers or members as a limited liability company pursuant to chapter 47-34A;
(9) "Commission," the State Banking Commission;
(10) "Debt cancellation contract," a loan term or contractual arrangement modifying loan terms under which a bank agrees to cancel all or part of a customer's obligation to repay an extension of credit from the bank upon the occurrence of a specified event. The contract may be separate from or a part of other loan documents. The term, debt cancellation contract, does not include loan payment deferral arrangements in which the triggering event is the borrower's unilateral election to defer repayment, or the bank's unilateral decision to allow a deferral of repayment;
(11) "Debt suspension contract," a loan term or contractual arrangement modifying loan terms under which a bank agrees to suspend all or part of a customer's obligation to repay an extension of credit from the bank upon the occurrence of a specified event. The contract may be separate from or a part of other loan documents. The term, debt suspension contract, does not include loan payment deferral arrangements in which the triggering event is the borrower's unilateral election to defer repayment, or the bank's unilateral decision to allow a deferral of repayment.
(12) "Deputy director," the deputy director of the Division of Banking;
(13) "Director," the director of the Division of Banking;
(14) "Dividends," distributions for a corporation organized pursuant to chapter 47-1A and distributions for a limited liability company organized pursuant to chapter 47-34A.
(15) "Division," the Division of Banking of the Department of Labor and Regulation;
(16) "Executive officer," every officer who participates or has authority to participate, otherwise than in the capacity of a director, in major policy-making functions of the bank, regardless of whether the officer has an official title or whether the officer's title contains a designation of assistant and regardless of whether the officer is serving without salary or other compensation. The chairman of the board, the president, every vice-president, the cashier, secretary, and treasurer of a bank are assumed to be executive officers, unless, by resolution of the board of directors or by the bank's bylaws, any such officer is excluded from participation in major policy-making functions, otherwise than in the capacity of a director of the bank, and the officer does not actually participate therein;
(17) "Fully defeased bonds or notes," obligations issued by any state, or municipal or school district subdivision the repayment of which has been irrevocably guaranteed by other securities which securities are issued by or are fully guaranteed by the United States Government;
(18) "Loan production office," an office which is apart from its main bank or branch which is staffed or controlled by a bank and is where loans are solicited but are not approved or disbursed;
(19) "Mobile branch bank," a branch bank that does not have a single, permanent site and uses a vehicle that travels to various locations to enable the public to conduct banking business. A mobile branch bank may serve defined locations on a regular schedule or may serve a defined area at varying times and locations;
(20) "National bank," any corporation organized pursuant to 12 U.S.C. § 21, as amended as of January 1, 1990;
(21) "Stock," shares for a bank organized by incorporators as a corporation pursuant to chapter 47-1A and member equity for a bank organized as a limited liability company pursuant to chapter 47-34A;
(22) "Stockholder," a shareholder of a bank organized by incorporators as a corporation pursuant to chapter 47-1A and a member for a bank organized by organizers or members as a member as a limited liability company pursuant to chapter 47-34A.
Source: SDC 1939, § 6.0101; SDCL § 51-1-1; SL 1969, ch 11, § 1.1; SL 1978, ch 352, § 3; SL 1979, ch 321, § 1; SL 1981, ch 346, § 1; SL 1984, ch 314, § 1; SL 1986, ch 399, § 2; SL 1988, ch 377, § 1; SL 1990, ch 379; SDCL § 51-15-1; SL 1995, ch 268, § 63; SL 1998, ch 278, § 1; SL 2004, ch 17, § 298; SL 2004, ch 289, §§ 1, 6; SL 2004, ch 290, § 1; SL 2008, ch 252, § 1; SL 2011, ch 1 (Ex. Ord. 11-1), § 162, eff. Apr. 12, 2011; SL 2018, ch 270, § 1.
51A-1-3. Adverse claims against bank deposits, contents of safe deposit box or property in safekeeping.
Notice to any bank of an adverse claim to a deposit or other item standing on its books to the credit of any person, or to the contents of a safe deposit box or property held in safekeeping, shall not be sufficient to cause said bank to recognize such adverse claim unless:
(1) In the case of a deposit, the adverse claimant shall execute and deliver to such bank, in form and with sureties acceptable to it, a bond indemnifying such bank from any and all liability on account of the recognition by the bank of such adverse claim, or unless such adverse claim is made through acts or proceedings pursuant to law;
(2) In the case of a safe deposit box, such box is leased or the property is held in the name of the lessee under a written instrument designating that the contents constitute property held in a fiduciary capacity, and the adverse claim is supported by a verified statement of facts disclosing that it is made by or on behalf of a beneficiary or other person having an interest therein and that there is good cause to believe that the contents thereof are in danger of misappropriation, unless the bank is directed to do so by a court order.
Source: SL 1927, ch 55; SDC 1939, § 6.0416; SDCL, § 51-10-12; SL 1969, ch 11, § 1.2; SDCL, § 51-15-2.
51A-1-4. Disqualification of officer, employee or director for violation--Civil liability.
Any officer, employee or director of a bank who is convicted of violating any of the provisions of this title is disqualified from thereafter acting as an officer, employee or director of any bank and is liable in a civil action to such bank or any of its stockholders for all losses sustained by reason of such violations.
Source: SL 1925, ch 92; SL 1927, ch 53; SL 1933, ch 50; SDC 1939, § 6.0441; SDCL, § 51-1-6; SL 1969, ch 11, § 1.3; SL 1988, ch 377, § 2; SDCL, § 51-15-3.
51A-1-5. Failure to obey director's orders--Civil liability.
Any officer, employee, or director of a bank who fails to obey any lawful order made by the director or commission under provisions of this title is subject to the imposition of a civil fine by the director or commission not exceeding one thousand dollars per violation for each day the officer, employee, director, or bank has willfully failed to comply with the order. Any funds received from such fines shall be deposited in the banking special revenue fund.
Source: SDC 1939, § 6.9911; SDCL § 51-1-4; SL 1969, ch 11, § 1.4; SL 1980, ch 24, § 76; SL 1988, ch 377, § 3; SDCL § 51-15-4; SL 2008, ch 252, § 2.
51A-1-6. Procedure to recover fine.
Any proceeding commenced to recover any civil fine under § 51A-1-5 shall be conducted in accordance with the provisions of chapter 1-26.
Source: SL 1988, ch 377, § 4; SDCL, § 51-15-4.1.
51A-1-7. Injunction against violation.
Whenever a violation of this title by a bank or an officer, director, or employee thereof is threatened or pending, the director may make application pursuant to law for an injunction or other appropriate remedy.
Source: SL 1969, ch 11, § 1.5; SL 1988, ch 377, § 5; SDCL, § 51-15-5.
51A-1-8. Liability of bank as insurer or as guarantor or endorser of security instrument prohibited.
Except as expressly permitted in this title, a bank shall not assume liability as an insurer or as a guarantor or endorser of any security instrument or obligation in which or with respect to which it has no property interest.
Source: SL 1969, ch 11, § 1.6; SDCL, § 51-15-6.
51A-1-9. Concealment of bank transactions as misdemeanor.
It is a Class 1 misdemeanor for an officer, director, employee or agent of a bank to conceal or endeavor to conceal any transaction of the bank from any officer, director or employee of the bank or any official or employee of the division to whom it should properly be disclosed.
Source: SL 1969, ch 11, § 1.8; SL 1970, ch 265, § 2; SL 1980, ch 24, § 81; SL 1988, ch 377, § 7; SDCL, § 51-15-8.
51A-1-10. False entries--Obstruction of examination--Felonies.
It is a Class 4 felony for an officer, director, employee, or agent of a bank:
(1) With intent to deceive, to make any false or misleading statement or entry or omit any statement or entry that should be in any book, account, report, or statement of the bank; or
(2) To obstruct or endeavor to obstruct a lawful examination of the bank by an officer or employee of the division.
Source: SL 1969, ch 11, § 1.9; SL 1970, ch 265, § 3; SL 1980, ch 24, § 82; SDCL, § 51-15-9; SL 2006, ch 130, § 18.
51A-1-11. False filing as misdemeanor.
No person may knowingly file or cause to be filed any statement, information, application, report, document or other form of proof with the director or the commission which is in whole or in part materially false nor may any person knowingly make or cause to be made any false entry in any book, document, record, application, information or other proof filed with the director or the commission pursuant to this title or pursuant to an order or request of the director or commission. A violation of this section is a Class 1 misdemeanor.
Source: SL 1981, ch 346, § 3; SDCL, § 51-15-16; SL 1988, ch 377, § 12; SDCL, § 51-15-9.1.
51A-1-12. Payment or indemnification of person for fine, penalty or judgment unlawful--Civil liability--Exceptions--Action to recover payments.
It is unlawful for a bank to pay a fine or penalty imposed by law upon any other person or to reimburse directly or indirectly any person by whom such fine or penalty has been paid. Any bank that makes an unlawful payment is subject to the imposition of a civil fine by the director or commission not to exceed one hundred dollars for each unlawful payment. A bank may reimburse any person in settlement of its own liability or in connection with the acquisition of property against which the judgment is a lien, or as provided in § 51A-3-31. Any payments made by a bank in violation of this section are recoverable for the bank in an action instituted pursuant to the provisions of chapter 1-26 by the division from the person who benefited from such payment.
Source: SL 1969, ch 11, § 1.10; SL 1980, ch 24, § 78; SL 1988, ch 377, § 8; SDCL, § 51-15-10.
51A-1-13. Misappropriation of funds or information by officer, director, or employee as felony.
Any officer, director or employee of a bank, who wrongfully diverts or takes any of the money, funds, credits, data, information or property of the bank, whether owned by it or held in trust, who wrongfully withholds payment or remittance of the proceeds of any collection which may come into his hands, who without authority of the directors, issues or puts forth any certificate of deposit, draws any order or bill of exchange, makes any acceptance, assigns any note, bond, draft, bill of exchange, judgment or mortgage, or who makes any false entry in any book, report or statement of the bank or report or statement required by the provisions of this title, with intent to injure the bank or any person, or to deceive any officer of the bank, anyone appointed to examine the affairs of the bank, or any other person, is guilty of a Class 5 felony.
Source: SL 1909, ch 222, art 2, §§ 19, 39; SL 1911, ch 255, § 32; SL 1915, ch 102, art 2, §§ 22, 43; RC 1919, §§ 8969, 8991, 9062; SL 1923, ch 116, § 1; SDC 1939, §§ 6.9903, 6.9910; SDCL, §§ 51-1-2, 51-12-11; SL 1969, ch 11, § 1.11; SL 1980, ch 24, § 79; SL 1988, ch 377, § 9; SDCL, § 51-15-11.
51A-1-14. Receipt, possession, or sale of misappropriated funds or information as felony.
Any person who receives, possesses, conceals, stores, barters, sells or disposes of any money, funds, credits, data, information or property, knowing the same to have been wrongfully diverted or taken from the bank, is guilty of a Class 5 felony.
Source: SL 1988, ch 377, § 10; SDCL, § 51-15-11.1.
51A-1-15. Acknowledgments by officers or employees of banks validated.
No public officer qualified to take acknowledgments or proofs of written instruments may be disqualified for taking the acknowledgment or proof of any instrument in writing in which a bank is interested by reason of his employment, whether as officer or employee, or by reason of his stock ownership or director status in a bank so interested, and any such acknowledgments or proofs taken before July 1, 1981, are hereby validated.
Source: SL 1981, ch 346, § 2; SDCL, § 51-15-15.
51A-1-16. Severability of provisions.
If any provision of this title or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications to this title which can be given effect without the invalid provision or application, and to this end the provisions of this title are declared to be severable.
Source: SL 1969, ch 11, § 14.2, SDCL, §§ 51-15-14, 51-15-17.
51A-1-17. No duty to disclose information about customers--Exceptions.
Any regulated lender as defined in § 54-3-14 has no duty to disclose information about its customers and has no duty to provide an opinion about the creditworthiness of its customers unless such information or opinion is required pursuant to a valid subpoena, court order, statute, or other legal process, or unless the customer authorizes the release of such information or opinion. A regulated lender may restrict the dissemination of information and creditworthiness of its customers by written policy or agreement.
Source: SL 2000, ch 224, § 1.
51A-1-18. Agreements or compacts with other jurisdictions--Administration--Filing--Availability.
The director, with the approval of the commission, may enter into any agreement or compact with authorized representatives of other jurisdictions to provide for the administration of banking laws under the provisions of a signed agreement or compact. In administering any agreement on behalf of this state, the director may adopt the policies, principles, and guidelines contained within the agreement. Copies of the agreement or compact, procedures manual, and guidelines shall be filed within fifteen days after execution of the agreement or compact or the effective date of the agreement or compact, whichever is the later, at the Department of Labor and Regulation. The director shall make any agreement or compact available to interested parties, upon request.
Source: SL 2005, ch 251, § 1; SL 2008, ch 252, § 3; SL 2011, ch 1 (Ex. Ord. 11-1), § 162, eff. Apr. 12, 2011.
51A-1-19. Central bank digital currency--Public transaction prohibited.
Neither the state nor any of its agencies or subdivisions may accept a central bank digital currency, whether foreign or domestic, as payment for taxes, fees, tuition, admission, the settlement of any account or debt, or any other purpose.
For the purposes of this chapter, the term "central bank digital currency" means a national digital currency issued by a central bank that is widely available to the general public.
Source: SL 2024, ch 195, § 1.
51A-1-20. Central bank digital currency--Private transaction--Alternative required.
A person engaging in the purchase or sale of any goods or services or trading in financial products or services and who accepts central bank digital currency must also accept another form of legal tender.
Source: SL 2024, ch 195, § 2.
51A-2-1
Establishment of Division of Banking.
51A-2-2
Department and commission as division within Department of Labor and Regulation--Direction and supervision by department--Independent functions retained by
division.
51A-2-3
Director of division--Vacancy--Qualifications.
51A-2-4
Director of division--Appointment and removal.
51A-2-5
Deputy director--Appointment--Powers and duties.
51A-2-6
Staff employees--Compensation--Dismissal--Background investigation.
51A-2-7
Appointment of State Banking Commission--Director as executive officer--Qualifications of members.
51A-2-8
Terms of commission members--Vacancies--Removal for cause.
51A-2-9
Chairman and secretary of commission--Per diem and expenses of members.
51A-2-10
Meetings of commission.
51A-2-11
Quorum--Replacement of nonparticipating member.
51A-2-12
Clerical, technical, and legal assistance for commission.
51A-2-13
Rules promulgated by commission.
51A-2-14
Rules granting additional authority to banks to promote competitive equality.
51A-2-14.1
State chartered banks granted powers allowed federally chartered banks.
51A-2-14.2
Restrictions on federally chartered banks apply to state chartered banks.
51A-2-15
Considerations of commission in making rules and regulations.
51A-2-16
Applications to organize or change control of bank, to merge, to open or close branch
banks, or to change location.
51A-2-17
Forms of advertising.
51A-2-18
Examination of banks by director--Substitution for examination requirements.
51A-2-19
Subpoena power--Witness fees and mileage.
51A-2-20
Examination by director upon application by board--Fees and expenses.
51A-2-21
Order to prohibit stockholders' action pending judicial determination.
51A-2-22
Removal of director, officer, or employee of bank--Grounds for order by director.
51A-2-23
Review of removal order by commission.
51A-2-24
Accounting practices--Valuation of assets--Required practices to protect loans.
51A-2-25
Temporary order of director against unsound practice.
51A-2-26
Permanent order of commission against unsound practice.
51A-2-27
Injunctive relief.
51A-2-28
Seal of director.
51A-2-29
Record of fees--Disposition of money collected.
51A-2-30
Banking special revenue fund created--Disbursements.
51A-2-31
Copies of official records and papers in office of division--Evidentiary value--Fee for
certified copy.
51A-2-32
Oaths and bonds of commissioners, director, deputy director, examiners and special
examiners, and other division personnel.
51A-2-33
Secrecy oath of commissioners, director and division officers and employees--Exceptions to secrecy requirements.
51A-2-34
Interest in bank by division officers or employees prohibited--Relinquishment of
interest by director or deputy for term of office.
51A-2-35
Records of division open to public inspection--Exceptions--Court order.
51A-2-36
Examination and supervision fees.
51A-2-37
Examinations of parent corporations by director--Penalty for refusal to allow
examination.
51A-2-38 to 51A-2-43. Repealed.
51A-2-1. Establishment of Division of Banking.
The Division of Banking is established and shall be administered under the direction and supervision of the Department of Labor and Regulation. The division is charged with supervision and control over the activities set forth in this title, and it shall exercise such other jurisdiction over such other activities as shall be conferred upon it by the Legislature.
Source: SL 1909, ch 222, art 1, § 1; SL 1915, ch 102, art 1, § 1; SL 1917, ch 256, § 1; RC 1919, § 8917; SL 1933, ch 47, § 5; SDC 1939, § 6.0205 (1); SDCL § 51-2-18; SL 1969, ch 11, § 2.1; SL 1988, ch 377, § 13; SDCL § 51-16-1; SL 2004, ch 17, § 299; SL 2011, ch 1 (Ex. Ord. 11-1), § 162, eff. Apr. 12, 2011.
51A-2-2. Department and commission as division within Department of Labor and Regulation--Direction and supervision by department--Independent functions retained by division.
The Division of Banking shall be administered under the direction and supervision of the Department of Labor and Regulation and the secretary thereof. The division shall retain the quasi-judicial, quasi-legislative, advisory, and other nonadministrative functions (as defined in § 1-32-1) otherwise vested in it and shall exercise those functions independently of the secretary.
Source: SL 1973, ch 2 (Ex. Ord. 73-1), § 43; SL 1973, ch 290, § 2; SL 1988, ch 377, § 14; SDCL § 51-16-1.1; SL 2003, ch 272 (Ex. Ord. 03-1), § 118, eff. Apr. 17, 2003; SL 2011, ch 1 (Ex. Ord. 11-1), § 162, eff. Apr. 12, 2011.
51A-2-3. Director of division--Vacancy--Qualifications.
The division shall be under the administrative control and supervision of the director. If the office of director is vacated a successor shall be appointed to fill the unexpired term then remaining.
The director shall have such professional and business experience that, in the opinion of the secretary of labor and regulation, equip him to discharge the duties and fulfill the responsibilities of the office of director.
Source: SL 1909, ch 222, art 1, § 2; SL 1911, ch 256, § 2; SL 1915, ch 102, art 1, § 2; SL 1917, ch 140, § 1; RC 1919, § 8918; SL 1921, ch 135; SL 1933, ch 56; SDC 1939, § 6.0206; SDCL § 51-2-1; SL 1969, ch 11, § 2.2; SL 1980, ch 370, § 20; SL 1988, ch 377, § 17; SDCL § 51-16-2; SL 2003, ch 272, (Ex. Ord. 03-1), § 24; SL 2011, ch 1 (Ex. Ord. 11-1), § 162, eff. Apr. 12, 2011.
51A-2-4. Director of division--Appointment and removal.
The director of the division shall be appointed by the secretary of labor and regulation and may be removed at the pleasure of the secretary.
Source: SL 1973, ch 2, § 45; SL 1973, ch 290, § 3; SL 1980, ch 370, § 21; SL 1988, ch 377, § 18; SDCL § 51-16-2.1; SL 1995, ch 2, § 5; SL 2003, ch 272 (Ex. Ord. 03-1), § 24; SL 2011, ch 1 (Ex. Ord. 11-1), § 162, eff. Apr. 12, 2011.
51A-2-5. Deputy director--Appointment--Powers and duties.
The secretary of labor and regulation may appoint a deputy director who shall devote all of his time to the duties of the office.
During the absence or disqualification of the director or during a vacancy in such office, the deputy, as acting director, shall perform the duties of the director.
Source: SL 1909, ch 222, art 1, § 2; SL 1911, ch 256, § 2; SL 1915, ch 102, art. 1, § 2; SL 1917, ch 140, § 1; RC 1919, § 8918; SL 1921, ch 135; SL 1933, ch 56; SDC 1939, § 6.0207; SDCL § 51-2-2; SL 1969, ch 11, § 2.3; SL 1979, ch 322; SL 1988, ch 377, § 19; SDCL § 51-16-3; SL 2003, ch 272 (Ex. Ord. 03-1), § 24; SL 2011, ch 1 (Ex. Ord. 11-1), § 162, eff. Apr. 12, 2011.
51A-2-6. Staff employees--Compensation--Dismissal--Background investigation.
The division may employ examiners and special examiners, legal counsel, clerks, stenographers and other aides as deemed necessary to assist the director in the performance of the director's duties. The division shall fix the compensation of each employee and may dismiss any employee not subject to the provisions of chapter 3-6D at will.
Each person hired by the Division of Banking, in any capacity, shall agree to submit to a background investigation, by means of fingerprint checks by the Division of Criminal Investigation and the Federal Bureau of Investigation. The division shall submit completed fingerprint cards to the Division of Criminal Investigation before the prospective new employee enters into service. If no disqualifying record is identified at the state level, the fingerprints shall be forwarded by the Division of Criminal Investigation to the Federal Bureau of Investigation for a national criminal history record check. Any person whose employment is subject to the requirements of this section may enter into service on a temporary basis pending receipt of results from the background investigation. The division may, without liability, withdraw its offer of employment or terminate the temporary employment without notice if the report reveals that the person has been convicted of any financial crime, or any crime that otherwise reveals circumstances that reasonably suggest that the person should not be employed by the division.
Source: SL 1909, ch 222, art 1, §§ 2, 10; SL 1911, ch 256, §§ 2, 12; SL 1915, ch 102, art 1, §§ 2, 13; SL 1917, ch 140, § 1; RC 1919, §§ 8918, 8929; SL 1921, ch 135; SL 1925, ch 98; SL 1927, ch 51; SL 1933, ch 56; SDC 1939, §§ 6.0208, 6.0209, 6.0211, 6.0212; SDCL §§ 51-2-3 to 51-2-6; SL 1969, ch 11, § 2.4; SL 1988, ch 377, § 20; SDCL § 51-16-4; SL 2007, ch 275, § 1; SL 2018, ch 12, § 24.
51A-2-7. Appointment of State Banking Commission--Director as executive officer--Qualifications of members.
The commission shall consist of five members appointed by the Governor, all of whom shall be residents of the state. The director shall be the executive officer of the commission and shall comply with and enforce all orders and directions of the commission.
Three of the members of the commission shall be officers or directors of a state or national bank at the time of and during their appointment. However, no more than one member of the commission may be an officer or director of a national bank at the time of appointment. The remaining two members of the commission shall have the qualifications provided by law except that they need not be officers or directors of a bank, nor associated in any way with the business of banking.
Source: SL 1933, ch 47, § 1; SDC 1939, § 6.0201; SL 1941, ch 13; SL 1945, ch 26; SDCL, §§ 51-2-8, 51-2-17; SL 1969, ch 11, § 2.6; SL 1970, ch 265, § 3.1; SL 1975, ch 7, § 2; SL 1978, ch 350, § 2; SL 1988, ch 377, § 21; SDCL, § 51-16-6.
51A-2-8. Terms of commission members--Vacancies--Removal for cause.
The term of office of members of the commission as created by this chapter is three years each. However, the term of office of only one member who is a director or officer of a bank may expire each year.
Vacancies arising other than from the natural expiration of a term shall be appointed for the remainder of the unexpired term only and such appointees shall meet the qualifications prescribed by law for the vacated position. All appointments to the commission are effective on the thirty-first day of October in which the Governor appoints the member, unless otherwise designated by the Governor. Members shall serve until their successors are appointed and qualified. Any member may be removed by the Governor for cause. The three-year terms expire on October thirtieth in the third year of appointment.
Any member's term ending June 30, 2013, or thereafter is extended to October thirtieth in the year the term is to expire.
Source: SL 1933, ch 47, § 1; SDC 1939, § 6.0201; SL 1941, ch 13; SL 1945, ch 26; SL 1966, ch 11; SDCL § 51-2-10; SL 1969, ch 11, § 2.8; SL 1970, ch 265, § 4; SL 1975, ch 7, § 3; SL 1988, ch 377, § 23; SDCL § 51-16-8; SL 2012, ch 16, § 2; SL 2013, ch 176, § 2.
51A-2-9. Chairman and secretary of commission--Per diem and expenses of members.
The commission shall elect a chairman from its members. The commission shall select a secretary who need not be one of its members. Each member shall be reimbursed for his expenses and shall receive an allowance for each day actually and necessarily spent in the performance of his duties in accordance with § 4-7-10.4.
Source: SL 1933, ch 47, § 2; SDC 1939, § 6.0201; SL 1941, ch 13; SL 1945, ch 26; SL 1966, ch 11; SDCL, § 51-2-15; SL 1969, ch 11, § 2.9; SL 1978, ch 350, § 3; SDCL, § 51-16-9.
51A-2-10. Meetings of commission.
The commission shall hold at least two regular meetings each year. Special meetings, to be held on such notice as the director may direct, may be called at any time upon the written request of two members or by the director. All meetings shall be held at the office of the director unless another location in the state is designated by the director for the meeting. The commission shall keep an official record of all its proceedings.
Source: SL 1933, ch 47, § 4; SDC 1939, § 6.0204; SDCL § 51-2-14; SL 1969, ch 11, § 2.10; SL 1970, ch 265, § 5; SL 1981, ch 346, § 4; SL 1988, ch 377, § 24; SDCL § 51-16-10; SL 2008, ch 252, § 4.
51A-2-11. Quorum--Replacement of nonparticipating member.
A majority of the voting members of the commission constitutes a quorum for the conduct of all business. At any meeting at which a quorum is not present, whether by reason of the inability of the member to participate or the member's disqualification pursuant to § 51A-2-16, the Governor or the Governor's designee, temporarily assuming the powers and duties of a member of the commission, shall replace the interested member of the commission. The commission as then composed shall proceed with the matters before it.
Source: SL 1969, ch 11, § 2.11; SL 1970, ch 265, § 6; SL 1988, ch 377, § 25; SDCL § 51-16-11; SL 2008, ch 252, § 5.
51A-2-12. Clerical, technical, and legal assistance for commission.
The commission may contract for the services of such clerical, technical and legal assistance as it may require.
Source: SL 1969, ch 11, § 2.12; SL 1988, ch 377, § 26; SDCL, § 51-16-12.
51A-2-13. Rules promulgated by commission.
The commission may promulgate necessary rules pursuant to chapter 1-26, consistent with the laws of this state, for the management and administration of banks and other banking entities, their subsidiaries and affiliates, over which it has jurisdiction as set forth in this title, and to regulate its own procedure and practice.
Source: SL 1933, ch 47, § 5; SDC 1939, § 6.0205 (3); SDCL, § 51-2-19; SL 1969, ch 11, § 2.13 (2); SL 1975, ch 290; SL 1977, ch 397; SL 1988, ch 377, § 28; SDCL, § 51-16-14.
51A-2-14. Rules granting additional authority to banks to promote competitive equality.
The commission may adopt rules under its jurisdiction:
(1) To authorize banks to participate in any public agency hereafter created under the laws of this state or the United States, the purpose of which is to afford advantages or safeguards to banks or to depositors, and to comply with all requirements and conditions imposed upon such participants;
(2) Deleted by SL 1999, ch 233, § 3.
(3) To allow banks to engage in any other banking or nonbanking activities, not prohibited by state law, which the commission deems appropriate; and
(4) To authorize banks to use new or different forms of accepting deposits, making loans, transferring funds, offering services and such other subjects as it deems appropriate.
In adopting rules pursuant to this section, the commission shall adopt only such rules that, in the opinion of the commission, promote competitive equality between state chartered banks, national banks, and other financial institutions.
Source: SL 1969, ch 11, § 2.13 (4); SL 1970, ch 265, § 7; SL 1981, ch 346, § 5; SDCL, § 51-16-16; SL 1988, ch 377, § 31; SDCL, § 51-16-14.1; SL 1999, ch 233, § 3.
51A-2-14.1. State chartered banks granted powers allowed federally chartered banks.
Notwithstanding any restrictions, limitations, and requirements of law, in addition to all powers, expressed or implied, that a state bank has under the laws of this state, a state bank shall have the powers and authorities conferred as of January 1, 2008, upon federally chartered banks doing business in this state. A state bank may exercise the powers and authorities conferred on a federally chartered bank after this date only if the director finds that the exercise of such powers and authorities:
(1) Serves the convenience and advantage of depositors, borrowers, or the general public; and
(2) Maintains the fairness of competition and parity between state chartered and federally chartered banks.
If the director finds that the before-mentioned conditions have been met, the director shall make a declaratory ruling allowing state banks the same powers and authorities.
As used in this section, powers and authorities, include, without limitation, powers and authorities in corporate governance and operational matters.
Source: SL 1999, ch 233, § 1; SL 2008, ch 252, § 6.
51A-2-14.2. Restrictions on federally chartered banks apply to state chartered banks.
The restrictions, limitations, and requirements applicable to specific powers or authorities of federally chartered banks apply to state banks exercising those powers or authorities permitted under § 51A-2-14.1 but only insofar as the restrictions, limitations, and requirements relate to exercising the powers or authorities granted banks solely under § 51A-2-14.1.
Source: SL 1999, ch 233, § 2.
51A-2-15. Considerations of commission in making rules and regulations.
In making rules, the commission shall act in the interests of promoting and maintaining a sound banking system; securing deposits, depositors and other customers; preserving the liquid position of banks; promoting the competitive equality of state-chartered banks with national banks and other financial institutions in all aspects of banking practices and permitted nonbanking activities; and preventing injurious credit expansions and contractions.
Source: SL 1969, ch 11, § 2.29; SL 1981, ch 346, § 19; SDCL, § 51-16-39; SL 1988, ch 377, § 52; SDCL, § 51-16-14.2.
51A-2-16. Applications to organize or change control of bank, to merge, to open or close branch banks, or to change location.
The director shall act on an application to organize or change control of a bank; an application for a bank merger; an application to open or close a branch bank, mobile branch bank, or loan production office; or an application to change a bank's location. After the filing of a completed application deemed acceptable to the director, the director shall cause a public notice of the application to be published in a newspaper of general circulation serving the community most directly affected by the application together with any other means of notification to interested persons as the director may determine appropriate.
The notice shall direct that any interested persons may file a written objection or written comment to the application with the division within fifteen days following the date of publication. Within thirty days following the date of publication, the director shall consider any written objection and written comment and, in accordance with § 51A-3-9, either approve or disapprove the application. The director shall provide written notice of the director's action on the application to the applicant and to any person having filed with the division a written objection or written comment by mail to the person's last known address.
An applicant aggrieved by the director's action on the application, may, within fifteen days after the notice has been mailed, file with the division a written request for a hearing before the commission. Any person who has filed a written objection to the application may, within fifteen days after the notice has been mailed, file a motion with the commission, in accordance with § 1-26-17.1, to become a party to the application proceeding and request a hearing before the commission. Unless the commission grants the motion or unless the applicant has filed a written request for hearing before the commission, the director's determination on the application is final.
All proceedings before the commission on an application shall be held in conformance with chapter 1-26. If the application involves establishment of any type of competitive banking service in the trade territory of a bank in which any banking commissioner is interested, the commissioner shall be deemed disqualified, and the commission shall be recomposed as provided in § 51A-2-11.
Source: SDC 1939, § 6.0205 (4); SL 1966, ch 12; SDCL §§ 51-2-20, 51-2-21; SL 1969, ch 11, § 2.13 (3); SL 1988, ch 377, § 29; SDCL § 51-16-15; SL 1995, ch 266; SL 1998, ch 278, § 2; SL 2008, ch 252, § 7; SL 2017, ch 203, § 1.
51A-2-17. Forms of advertising.
No bank may engage in any form of advertising which is false, misleading or deceptive.
Source: SL 1969, ch 11, § 2.13 (8); SL 1988, ch 377, § 33; SDCL, § 51-16-20.
51A-2-18. Examination of banks by director--Substitution for examination requirements.
The director shall examine, at least once in every two calendar years, and at such other times that he may deem necessary, all of the affairs of each bank and its subsidiaries. In order to determine how frequently to examine a bank, he may establish a system of classifying banks, based on their current examination, and examine different classes with varying frequency. The director may substitute an examination conducted by the Federal Deposit Insurance Corporation or the federal reserve system for an examination required by this section.
Source: SL 1909, ch 222, art 1, § 4; SL 1911, ch 256, § 4; SL 1915, ch 102, art 1, § 4; RC 1919, § 8920; SL 1935, ch 56; SDC 1939, § 6.0215; SDCL, §§ 51-12-7, 51-12-10; SL 1969, ch 11, § 2.14; SL 1970, ch 265, § 8; SL 1978, ch 350, § 4; SL 1981, ch 346, § 8; SL 1988, ch 377, § 34; SDCL, § 51-16-21.
51A-2-19. Subpoena power--Witness fees and mileage.
The director may issue subpoenas and subpoenas duces tecum returnable to any place within this state relating to any matter under investigation. He may administer oaths and examine witnesses under oath for like purposes and to that end may invoke the aid of any circuit court of this state pursuant to chapter 21-34 in enforcing the provisions of this section. Witness fees and mileage are the same as are allowed in the circuit courts of this state and are a proper charge against the assets of the bank examined, payable immediately upon the order of the director.
Source: SDCL, § 51-16-21; SL 1988, ch 377, § 34; SDCL, § 51-16-21.1.
51A-2-20. Examination by director upon application by board--Fees and expenses.
The director shall examine any bank upon a formal application made by its board of directors, in which event, in addition to the regular fees prescribed, such bank shall pay all actual expenses incurred in connection therewith.
Source: SL 1909, ch 222, art 1, § 4; SL 1911, ch 256, § 1915, ch 102, art 1, § 4; RC 1919, § 8920; SL 1935, ch 56; SDC 1939, § 6.0215; SDCL, § 51-12-9; SL 1969, ch 11, § 2.15; SL 1988, ch 377, § 35; SDCL, § 51-16-22.
51A-2-21. Order to prohibit stockholders' action pending judicial determination.
The director may order the prohibition of specific action at any stockholders' meeting of any bank pending timely application for judicial determination on any matter if he believes that such order is necessary to protect the bank against improper, incompetent or careless management practices to safeguard the funds of depositors or to prevent willful violation of this title or any regulation adopted hereunder.
Source: SL 1969, ch 11, § 2.17 (1); SL 1970, ch 265, § 9; SL 1988, ch 377, § 37; SDCL, § 51-16-24.
51A-2-22. Removal of director, officer, or employee of bank--Grounds for order by director.
The director, may, subject to the approval of the commission, order the removal or prohibition from the banking industry in South Dakota, or both, of any director, officer, or employee of a bank, upon showing that the director, officer or employee has engaged or participated in any unlawful banking activity, any unsafe or unsound practice in which the bank has suffered or will suffer financial loss or other damage, or upon showing that the director, officer, or employee has knowingly caused the bank to be in violation of any part of this title or any rule issued thereunder, or who is determined by the director to have knowingly and willfully violated the terms of any order issued pursuant to § 51A-2-25 or 12 U.S.C. § 1818. Any person so affected by an order of the director or commission has the right to a hearing pursuant to chapter 1-26.
Source: SL 1909, ch 222, art 2, § 48; SL 1915, ch 102, art 2, § 53; RC 1919, § 9001; SDC 1939, § 6.0205 (8); SDCL § 51-2-23; SL 1969, ch 11, § 2.17 (2); SL 1970, ch 265, § 10; SL 1988, ch 377, § 38; SDCL § 51-16-25; SL 2008, ch 252, § 8.
51A-2-23. Review of removal order by commission.
The commission shall approve or disapprove any removal order requested by the director pursuant to § 51A-2-22. Any proceeding held pursuant to this section shall conform with the provisions of chapter 1-26 governing contested cases.
Source: SL 1981, ch 346, § 12; SL 1988, ch 377, § 39; SDCL, § 51-16-25.1.
51A-2-24. Accounting practices--Valuation of assets--Required practices to protect loans.
The director may require any bank:
(1) To maintain its accounts in a prescribed manner having regard for the size of the bank;
(2) To observe methods and standards for determining the value of various types of assets;
(3) To charge off the whole or part of any asset which could not then be lawfully acquired;
(4) To write down an asset to its market value;
(5) To record liens and other interests in property;
(6) To obtain a financial statement and adequate credit information from borrowers;
(7) To require borrowers to obtain insurance against damage to real or personal property taken as security;
(8) To require borrowers to search or obtain insurance of title to real estate or chattels taken as security;
(9) To maintain adequate insurance against such other risks relating to the bank premises, its deposits, vaults and offices as he may determine to be necessary and appropriate for the protection of deposits and the public.
Source: SL 1915, ch 102, art 2, § 21; RC 1919, § 8968; SDC 1939, § 6.0434; SDCL, § 51-12-1; SL 1969, ch 11, § 2.17 (3); SL 1970, ch 265, § 11; SL 1988, ch 377, § 40; SDCL, § 51-16-26.
51A-2-25. Temporary order of director against unsound practice.
The director may issue a temporary order having force until the next regular meeting of the commission, or special meeting of the commission if requested by the director or by a member of the commission, requiring that any person cease and desist from engaging in any unsound or unlawful banking practice.
Source: SL 1969, ch 11, § 2.17 (4); SL 1970, ch 265, § 12; SL 1981, ch 346, § 10; SL 1988, ch 377, § 41; SDCL § 51-16-27; SL 2008, ch 252, § 9.
51A-2-26. Permanent order of commission against unsound practice.
The commission may enter, subject to chapter 1-26, a permanent order, upon the return to it of a temporary order, issued by the director pursuant to § 51A-2-25 and a showing that the bank has engaged in unsound or unlawful practices.
Source: SL 1981, ch 346, § 13; SL 1988, ch 377, § 42; SDCL, § 51-16-27.1.
51A-2-27. Injunctive relief.
If a person or bank that is subject to an order entered by the director or the commission pursuant to § 51A-2-22, 51A-2-25 or 51A-2-26, fails to comply with such order, the director or commission may seek an injunction from the circuit court in the county in which the bank is located, ordering such person or bank to cease and desist from the unsound or unlawful banking practice. An injunction shall be granted upon a showing that certain practices were engaged in that are contrary to sound banking practices, and that these practices contributed to the financial detriment of the bank.
Source: SL 1981, ch 346, § 11; SL 1988, ch 377, § 43; SDCL, § 51-16-27.2
51A-2-28. Seal of director.
The director shall have a seal of office containing the words "Director of the Division of Banking of South Dakota" in the form of a circle and the word "Seal" inside the circle.
Source: SL 1909, ch 222, art 1, § 3; SL 1911, ch 256, § 3; SL 1915, ch 102, art 1, § 3; RC 1919, § 8919; SDC 1939, § 6.0214; SDCL, § 51-2-29; SL 1969, ch 11, § 2.18; SL 1988, ch 377, § 44; SDCL, § 51-16-28.
51A-2-29. Record of fees--Disposition of money collected.
The division shall keep an official record of all fees collected and of all expenses incurred pursuant to this title. All money so collected shall be reported and paid to the state treasurer and deposited in the banking revolving fund.
Source: SL 1909, ch 222, art 1, §§ 2, 6, 18; SL 1911, ch 256, §§ 2, 6, 30; SL 1915, ch 102, art 1, §§ 2, 6, 29; SL 1917, ch 140, §§ 1, 2; RC 1919, §§ 8922, 8945; SL 1921, ch 135; SL 1933, ch 56; SDC 1939, § 6.0217; SL 1941, ch 14, § 1; SDCL, § 51-2-32; SL 1969, ch 11, § 2.19; SL 1978, ch 355, § 3; SL 1981, ch 346, § 14; SL 1986, ch 399, § 1; SL 1988, ch 377, § 45; SDCL, § 51-16-29.
51A-2-30. Banking special revenue fund created--Disbursements.
There is hereby created in the state treasury the banking special revenue fund. Moneys deposited to this fund shall be expended as directed by the Legislature.
Source: SL 1978, ch 355, § 2; SL 1988, ch 377, § 46; SDCL, § 51-16-29.1.
51A-2-31. Copies of official records and papers in office of division--Evidentiary value--Fee for certified copy.
Copies of all official records and papers in the office of the Division of Banking, certified by the director and authenticated by the official seal, shall be received in evidence in all courts of this state with like force as the originals thereof.
Whenever any certified copy of any record or paper filed in the office of the division is furnished by it, it shall charge and collect a fee of not more than fifty cents per page. The amount of the fee shall be set to reflect actual costs. All such fees shall be paid into the state treasury to the credit of the banking special revenue fund.
Source: SDC 1939, § 6.0218; SL 1941, ch 14, § 2; SDCL, §§ 51-2-30, 51-2-31; SL 1969, ch 11, § 2.20; SL 1981, ch 346, § 15; SL 1988, ch 377, § 47; SDCL, § 51-16-30.
51A-2-32. Oaths and bonds of commissioners, director, deputy director, examiners and special examiners, and other division personnel.
Before entering upon his duties, each of the persons hereinafter mentioned, and such other persons in positions of trust named by the commission, shall take and subscribe to the oath of office prescribed by the Constitution, and each shall give to the state a corporate surety bond to be approved, recorded, and filed as the official bonds of other state officers, conditioned for the faithful discharge of the duties of his office. Such bonds may be in individual, schedule, or blanket form and shall be in the following sums: the director, twenty-five thousand dollars; the deputy director, twenty-five thousand dollars; examiners and special examiners, each, twenty-five thousand dollars; all other persons, in an amount fixed by the commission. The premium for the bond of all such officers shall be paid as provided by law for the bonds of other public officers.
Source: SL 1909, ch 222, art 1, § 2; SL 1911, ch 256, § 2; SL 1915, ch 102, art 1, § 2; SL 1917, ch 140, § 1; RC 1919, § 8918; SL 1921, ch 135; SL 1933, ch 47, § 3; SL 1933, ch 56; SDC 1939, § 6.0202; SDCL, §§ 51-2-11, 51-2-13; SL 1969, ch 11, § 2.22; SL 1989, ch 408; SDCL, § 51-16-32.
51A-2-33. Secrecy oath of commissioners, director and division officers and employees--Exceptions to secrecy requirements.
Before entering upon the discharge of his duties, each member of the commission, the director, and all officers and employees of the division shall take an oath to keep secret all facts and information obtained in the discharge of his official duties, except:
(1) As the public duty of such officer or appointee requires him to report upon or take special action regarding the affairs of any bank;
(2) Information with reference to a suspended bank which may be made public if, in the discretion of the director, it is to the best interests of the creditors thereof;
(3) If called as a witness in a court or before any committee of either house of the Legislature;
(4) The director or any of his appointees may disclose to the federal reserve board, the Federal Deposit Insurance Corporation, or the office of the comptroller of the currency, or the examiners appointed by them, all information with reference to the affairs of any state bank which is insured by the Federal Deposit Insurance Corporation, and to this end, the director, the federal reserve board, the Federal Deposit Insurance Corporation, and the office of the comptroller of the currency may exchange reports of examinations made by them;
(5) The director may disclose reports of examinations to other state banking agencies on a reciprocal basis. Five days prior to the release of such reports, the director shall inform the chief executive officer and board of directors of the bank whose report is being released of the director's intention to make the release and of the name of the agency to which the report will be released.
A violation of the oath is a Class 2 misdemeanor.
Source: SL 1909, ch 222, art 1, § 7; SL 1911, ch 256, § 7; SL 1915, ch 102, art 1, § 7; SL 1917, ch 140, § 3; RC 1919, § 8923; SL 1919, ch 120; SL 1931, ch 89; SL 1935, ch 55; SDC 1939, § 6.0203; SDCL, § 51-2-12; SL 1969, ch 11, § 2.23; SL 1980, ch 24, § 83; SL 1981, ch 346, § 17; SL 1988, ch 377, § 48; SDCL, § 51-16-33.
51A-2-34. Interest in bank by division officers or employees prohibited--Relinquishment of interest by director or deputy for term of office.
No officer or employee of the division may be an officer, director, trustee, attorney, owner, shareholder or partner in any state bank, nor receive any payment or gratuity directly or indirectly from that organization, nor be indebted to any state bank, nor engage in negotiation of loans for others with any such bank.
The director or the deputy director shall have a reasonable length of time after his appointment to sell or to relinquish any interest he owns in a state-chartered bank in this state by transferring that interest to a nonrelated trustee for the tenure of his office.
Source: SL 1909, ch 222, art 1, § 2; SL 1911, ch 256, § 2; SL 1915, ch 102, art 1, § 2; SL 1917, ch 140, § 1; RC 1919, § 8918; SL 1921, ch 135; SL 1925, ch 102, § 2; SL 1927, ch 56; SL 1933, ch 56; SDC 1939, § 6.0210; SDCL, §§ 51-2-26, 51-2-27; SL 1969, ch 11, § 2.24; SL 1970, ch 265, § 13; SL 1983, ch 355; SL 1988, ch 377, § 49; SDCL, § 51-16-34.
51A-2-35. Records of division open to public inspection--Exceptions--Court order.
The records of the division are open to public inspection. However:
(1) The director may withhold from public inspection any record, including any correspondence, for so long as deemed necessary for the protection of a person or bank or to be in the public interest;
(2) The director shall withhold from public inspection any record required to be confidential pursuant to federal statutes or rules or regulations of the board of governors of the federal reserve system or the Federal Deposit Insurance Corporation; and
(3) Reports of examination shall remain the property of the division and shall be furnished to the bank for its confidential use. Under no circumstances may the report or any supporting documentation be disclosed to anyone, other than directors and officers of the bank or anyone who is acting in a fiduciary capacity for the bank, without written permission from the director.
Any record of the division shall be made available upon order of a court of competent jurisdiction if cause is shown.
Source: SL 1969, ch 11, § 2.26; SL 1970, ch 265, § 14; SDCL, § 51-16-36; SL 1999, ch 234, § 1.
51A-2-36. Examination and supervision fees.
The division shall charge and collect a fee from all banks to cover the cost of examining and supervising banks based upon asset size and other factors as established by the commission. The commission shall set the fee and the other factors by rules promulgated pursuant to chapter 1-26.
Source: SL 1989, ch 409; SDCL § 51-16-37.1; SL 2008, ch 252, § 10.
51A-2-37. Examinations of parent corporations by director--Penalty for refusal to allow examination.
If the director considers it necessary, the director may examine the books and records of a corporation that holds twenty-five percent or more of the stock of a bank. If any parent corporation of a state chartered bank refuses to give any information required in the course of an examination, that parent corporation is subject to a civil fine of one thousand dollars for each day that the refusal continues. Continued refusal may result in the taking and possession of such bank as provided in § 51A-15-11.
Source: SL 1969, ch 11, § 2.28; SL 1970, ch 265, § 15; SL 1980, ch 24, § 84; SL 1981, ch 346, § 18; SL 1983, ch 357; SL 1988, ch 377, § 51; SDCL § 51-16-38; SL 2008, ch 252, § 11.
51A-2-38 to 51A-2-43. Repealed by SL 2012, ch 252, §§ 4 to 9.
CHAPTER 51A-3
ORGANIZATION, APPLICATIONS, AND CAPITAL STRUCTURE OF BANKING CORPORATIONS
51A-3-1 Corporation laws applicable to banks.
51A-3-1.1 Bank organized as limited liability company--Rules.
51A-3-2 Articles of incorporation or articles of organization--Content--Name of bank--Capital stock or members' equity.
51A-3-3 Incorporators of bank.
51A-3-4 Minimum capital.
51A-3-5 Sale price of original stock issue or original issue of members' equity--Excess credited to surplus.
51A-3-6 Transfers to surplus.
51A-3-7 Applications--Fee.
51A-3-8 Acceptance of application for charter.
51A-3-9 Conditions to be considered in ruling on application.
51A-3-10 Hearing on application.
51A-3-11 51A-3-11. Repealed by SL 2008, ch 252, § 14.
51A-3-12 Endorsement and filing of approved articles--Notice of disapproval.
51A-3-13 Subscription of shares--Minimum collection--Refund on disapproval of application.
51A-3-14 Call by incorporators for full payment of subscriptions--Issuance of certificate of authority by director--Commencement of business within one year.
51A-3-15 Applications for branch banks and detached drive-in facilities--Applicable provisions.
51A-3-16 Preferred stock, capital notes, and debentures--Director approval of issuance--Terms of issue--Director approval of retirement or payment.
51A-3-17 Preferred stock, capital notes, and debentures outstanding--Restrictions on dividends.
51A-3-17.1 Dividends--Definition.
51A-3-18 Dividends--Restrictions and requirements for declaration.
51A-3-19 Approval of director required for unusually large dividends.
51A-3-20 Recovery of dividends paid when capital impaired.
51A-3-21 Net profits defined.
51A-3-22 Amendment of articles of incorporation--Changes requiring approval of director--Filing of amendments.
51A-3-23 Extension of charter.
51A-3-24 Reporting transfers of stock.
51A-3-25 Change in control of bank.
51A-3-26 Lien on shares--Enforcement--Marking of certificates.
51A-3-27 Purchase or purchase money loans on security of own stock prohibited--Exception.
51A-3-28 Credit of dividends, interest, or profits on indebtedness--Foreclosure of lien.
51A-3-29 Repealed by SL 2012, ch 252, § 12.
51A-3-30 Adoption and approval of bylaws.
51A-3-31 Indemnification of officers, directors, or employees.
51A-3-32 Board of directors--Number of members--Citizenship requirements--Election.
51A-3-33 Removal of directors--Vote required.
51A-3-34 Board of directors--Meetings.
51A-3-35 Election of officers--Terms--Vacancies.
51A-3-36 Names of officers and information forwarded to director--Vacancy on refusal to confirm.
51A-3-37 Bonds of officers and employees.
51A-3-38 Insurance protection.
51A-3-39 Amount of bonds and insurance prescribed by bank directors--Approval by director of division.
51A-3-1. Corporation laws applicable to banks.
All provisions of law applicable to corporations generally shall be applicable to banks, except where inconsistent with this title, in which case this title shall govern.
Source: SL 1969, ch 11, § 3.1; SDCL, § 51-17-1.
51A-3-1.1. Bank organized as limited liability company--Rules.
A bank may be organized as a limited liability company. The commission shall promulgate rules pursuant to chapter 1-26, consistent with Title 51A, for the organization, management, extension of its charter , and general administration of a bank that is organized as a limited liability company. The rules shall facilitate the organization and capital structure, the offering of trust business and the ability to develop branch bank and drive-in facilities, the offering of remote service banking and bank services, the acceptance of deposits and the making of investments, the offering of safe deposit and safe keeping protocols, the making of loans, the reorganization of the limited liability company bank, and the operation of a bank organized as a limited liability company to operate on an equal and parity basis with a bank organized as a corporation.
Source: SL 2004, ch 289, § 2.
51A-3-2. Articles of incorporation or articles of organization--Content--Name of bank--Capital stock or members' equity.
For a bank organized as a corporation, the articles of incorporation of a bank shall state, and for a bank organized as a limited liability company, the articles of organization of a bank shall state:
(1) That the corporation or limited liability company is formed for the purpose of engaging in the business of banking, or as a bank and trust company, or as a bank and trust department;
(2) The period for which such corporation or limited liability company is organized, not exceeding twenty years.
The capital stock of a bank organized as a corporation shall be divided into shares of not less than ten nor more than one hundred dollars each. The members' equity of a bank organized as a limited liability company shall be divided into units of not less than ten nor more than one hundred dollars each.
The name of a bank organized under this title shall be different from the name of any other bank or trust company in the county of its place of business. However, the name of the bank is not required to be different if the majority of the bank's outstanding stock is owned by a bank holding company that also owns a majority of the outstanding stock of another bank or trust company in the county of the bank's place of business and such other bank or trust company has given its prior written consent.
Source: SDC 1939, § 6.0301; SL 1941, ch 15; SL 1957, ch 10; SDCL §§ 51-3-1, 51-3-3, 51-3-4; SL 1969, ch 11, § 3.2; SL 1970, ch 265, § 16; SDCL § 51-17-2; SL 1995, ch 268, § 64; SL 2004, ch 289, § 7; SL 2009, ch 250, § 1.
51A-3-3. Incorporators of bank.
The incorporators shall be any number of natural persons, residents of this state, eighteen years of age or older, not less than five in number.
Source: SL 1891, ch 27, § 1; RCivC 1903, § 847; SL 1909, ch 222, art 2, § 1; SL 1911, ch 255, § 1; SL 1915, ch 102, art 2, § 2; SL 1917, ch 145, § 1; RC 1919, §§ 8949, 9032; SL 1925, ch 95; SL 1927, ch 60; SDC 1939, § 6.0302; SDCL, § 51-3-2; SL 1969, ch 11, § 3.3; SL 1988, ch 377, § 55; SDCL, § 51-17-3.
51A-3-4. Minimum capital.
The total capital of each newly organized bank shall be in an amount as the director determines adequate provided that the total capital required be at least six percent of the total projected assets of the bank during its first three years of operation.
Source: SL 1909, ch 222, art 2, § 1; SL 1911, ch 255, § 3; SL 1915, ch 102, art 2, § 2; SL 1917, ch 145, § 1; RC 1919, §§ 8949, 9034; SL 1925, ch 95; SL 1927, ch 60; SDC 1939, § 6.0303; SL 1943, ch 15; SL 1959, ch 15; SDCL §§ 51-4-1, 51-4-2; SL 1969, ch 11, § 3.4; SL 1981, ch 346, § 20; SL 1982, ch 334, § 3; SL 1988, ch 377, § 56; SDCL § 51-17-4; SL 2015, ch 239, § 1.
51A-3-5. Sale price of original stock issue or original issue of members' equity--Excess credited to surplus.
For a bank organized as a corporation, the original issue of bank stock, and for a bank organized as a limited liability company, the original issue of members' equity, shall be sold at a price of not less than twenty percent in excess of its par value and paid for in full in lawful money of the United States. The excess over the par value shall be credited on the books of the bank to the surplus.
Source: SL 1915, ch 102, art 2, § 2; SL 1917, ch 145, § 1; RC 1919, § 8949; SL 1925, ch 95; SL 1927, ch 60; SDC 1939, § 6.0305; SDCL, § 51-4-4; SL 1969, ch 11, § 3.5; SL 1970, ch 265, § 17; SL 1988, ch 377, § 57; SDCL, § 51-17-5; SL 2004, ch 289, § 8.
51A-3-6. Transfers to surplus.
One-tenth of the net profit for any dividend period shall be carried to the surplus fund until such fund shall amount to twenty percent of the capital stock or members' equity. Any losses sustained in excess of undivided profits may be charged to the surplus account, but no dividends shall thereafter be declared or paid until the surplus fund shall amount to twenty percent of the capital stock or members' equity.
Source: SL 1891, ch 27, § 13; RCivC 1903, § 859; SL 1909, ch 222, art 2, § 36; SL 1911, ch 255, § 14; SL 1915, ch 102, art 2, § 40; RC 1919, §§ 8988, 9044; SDC 1939, § 6.0439; SL 1953, ch 14, § 1; SDCL, § 51-4-23; SL 1969, ch 11, § 3.8; SDCL, §§ 51-17-5.1, 51-17-9; SL 2004, ch 289, § 9.
51A-3-7. Applications--Fee.
Any application filed pursuant to § 51A-2-16 shall be delivered to the director and contain any information the director may require. The application shall be accompanied by an application fee in an amount set by the commission. In addition to the application fee, the applicant shall pay any costs associated with the public notice required in § 51A-2-16. The director may assess an applicant for actual costs of processing the application if the actual costs exceed the application fee.
Source: SDC 1939, § 6.0304; SL 1963, ch 23; SDCL, §§ 51-3-5, 51-3-6; SL 1969, ch 11, § 3.11; SL 1970, ch 265, § 18; SL 1979, ch 323; SL 1981, ch 346, § 22; SL 1988, ch 377, § 62; SDCL, § 51-17-12; SL 1991, ch 390, § 1; SL 2020, ch 204, § 1.
51A-3-8. Acceptance of application for charter.
The director shall notify the incorporators of his acceptance for filing of an application. If the application and accompanying documents required in § 51A-3-7 do not conform to the requirements of this title, or the rules of the commission, the director shall return the application calling attention to the defects therein. However, if the director does not act within twenty days of his receipt thereof, the application is considered to have been accepted by him.
Source: SL 1969, ch 11, § 3.13; SL 1988, ch 377, § 64; SDCL, § 51-17-14.
51A-3-9. Conditions to be considered in ruling on application.
In ruling upon any bank application required in § 51A-2-16, the director or the commission, as the case may be, shall consider the following conditions:
(1) The financial history and condition of the applicant;
(2) The adequacy of the applicant's financial structure;
(3) The future earning prospects of the applicant;
(4) The general character and fitness of the management and ownership of the applicant;
(5) The applicant's ability to serve the community as described in the application; and
(6) Such other facts and circumstances as in the opinion of the director or commission may be relevant.
In any hearing before the commission on an application, the director shall submit to the commission for its consideration pursuant to § 51A-3-10 the director's findings with respect to the above conditions together with all other pertinent information in the director's possession.
Source: SL 1909, ch 222, art 2, § 7; SL 1915, ch 102, art 2, § 9; RC 1919, § 8955; SDC 1939, § 6.0304; SL 1963, ch 23; SDCL § 51-3-7; SL 1969, ch 11, § 3.14; SL 1972, ch 253; SL 1981, ch 346, § 23; SL 1988, ch 377, § 65; SDCL § 51-17-15; SL 2008, ch 252, § 12.
51A-3-10. Hearing on application.
Within ninety days following an applicant's request for hearing or the commission's order granting a motion to intervene and request for hearing filed in accordance with § 51A-2-16, the commission shall conduct a hearing on the application. The commission shall consider the evidence presented at the hearing and the director's findings and other pertinent information submitted by the director in accordance with § 51A-3-9. The commission shall, within forty-five days from the date of the hearing, prepare and file in appropriate written form, findings of fact and conclusions of law which shall become a permanent part of the record relating to the pending application.
Source: SDCL § 51-17-15 as added by SL 1972, ch 253; SL 1988, ch 377, § 66; SDCL § 51-17-15.1; SL 2008, ch 252, § 13.
51A-3-12. Endorsement and filing of approved articles--Notice of disapproval.
If the director approves a charter application, the director's approval shall be endorsed on the articles of incorporation or organization. The original shall be filed and recorded in the office of the secretary of state, and a certified copy shall be forthwith filed in the office of the director. The remaining copy shall be returned to the incorporators or organizers within twenty days of the action of the director. If the director disapproves an application, the director shall so notify the incorporators or organizers within twenty days of such disapproval, in writing, stating the reasons for such disapproval and shall return all copies of the articles of incorporation or organization to them.
Source: SL 1909, ch 222, art 2, § 7; SL 1915, ch 102, art 2, § 9; RC 1919, § 8955; SDC 1939, § 6.0304; SL 1963, ch 23; SDCL § 51-3-8; SL 1969, ch 11, § 3.16; SL 1970, ch 265, § 21; SDCL § 51-17-18; SL 2008, ch 252, § 15.
51A-3-13. Subscription of shares--Minimum collection--Refund on disapproval of application.
The incorporators shall collect an amount equal to not less than ten percent of the subscription price of each share of stock subscribed for at the time such subscriptions are issued. If the application is disapproved by the director or commission, that portion of the moneys so collected remaining after the payment of the expenses incidental to such application shall be proportionally refunded to the subscribers.
Source: SL 1969, ch 11, § 3.12; SL 1970, ch 265, § 19; SDCL § 51-17-13; SL 1988, ch 377, § 63; SDCL § 51-17-18.1; SL 2012, ch 252, § 10.
51A-3-14. Call by incorporators for full payment of subscriptions--Issuance of certificate of authority by director--Commencement of business within one year.
The incorporators may call for the payment of subscriptions in full upon receipt of the notice that the articles of incorporation have been approved. The director shall issue a certificate of authority whenever it shall appear to him that the capital stock of such bank has been fully subscribed and paid in in money and such bank is lawfully entitled to commence business. No bank shall transact any business, except such as is incidental or necessarily preliminary to its organization, until such certificate of authority has been regularly issued by the director. Such certificate of authority shall be void if the bank named therein fails to commence business within one year from the date thereof.
Source: SL 1909, ch 222, art 2, §§ 5, 7; SL 1911, ch 255, §§ 7, 9; SL 1915, ch 102, art 2, §§ 6, 9; RC 1919, §§ 8953, 8955, 9038, 9039; SDC 1939, § 6.0306; SDCL, §§ 51-6-2, 51-6-4, 51-6-5; SL 1969, ch 11, § 3.17; SDCL, § 51-17-19.
51A-3-15. Applications for branch banks and detached drive-in facilities--Applicable provisions.
The provisions of §§ 51A-3-7 to 51A-3-14, inclusive, insofar as they are by their terms applicable, govern applications for branch banks and detached drive-in facilities.
Source: SL 1969, ch 11, § 3.18; SL 1981, ch 346, § 24; SL 1988, ch 377, § 68; SDCL, § 51-17-20.
51A-3-16. Preferred stock, capital notes, and debentures--Director approval of issuance--Terms of issue--Director approval of retirement or payment.
The director may approve the issuance of preferred stock, capital notes, debentures or other bank securities after approval of the majority of the stockholders. The terms of issue shall set forth the voting rights available thereon and the rank or priority, if any, of depositor or other creditor with reference to such issue in case of insolvency of the issuing bank. No such stock, notes, debentures or other bank securities may be issued prior to approval by the director. Before any such issue is retired or paid, the bank shall obtain the written approval of the director.
Source: SL 1933 (SS), ch 1, § 4; SL 1935, ch 61, § 2; SDC 1939, § 6.0409; SL 1943, ch 16; SL 1955, ch 10; SDCL, §§ 51-4-7, 51-4-22; SL 1969, ch 11, § 3.6; SL 1981, ch 346, § 21; SDCL, § 51-17-6; SL 1988, ch 377, § 58; SDCL, § 51-17-20.1.
51A-3-17. Preferred stock, capital notes, and debentures outstanding--Restrictions on dividends.
No dividends may be declared or paid on the capital stock of any bank which has outstanding capital notes or debentures, or if preferred stock has been issued without prior written approval of the director unless:
(1) In the case of an issue of capital notes or debentures, the surplus and undivided profits of such bank equal such issue, the retirement requirements and interest on the issue have been paid; or
(2) In the case of an issue of preferred stock, all the terms of issue shall have been satisfied.
Source: SL 1933 (SS), ch 1, § 4; SL 1935, ch 61, § 2; SDC 1939, § 6.0409; SL 1943, ch 16; SL 1955, ch 10; SDCL, §§ 51-4-12, 51-4-24; SL 1969, ch 11, § 3.6; SDCL, § 51-17-7; SL 1988, ch 377, § 59; SDCL, § 51-17-20.2.
51A-3-17.1. Dividends--Definition.
For the purposes of this chapter, dividends are any distribution of funds made by the bank to a shareholder from current or accumulated earnings except for fees or salaries.
Source: SL 1998, ch 279, § 1.
51A-3-18. Dividends--Restrictions and requirements for declaration.
Dividends to stockholders may be declared from net profits by the board of directors of a bank not more than once in each calendar quarter provided that all provisions of this title relating to the maintenance of capital accounts have been complied with. The minutes of such a meeting shall reflect that a determination has been made that the reserve for loan and lease losses has been adequately funded, the amount carried to surplus, if any, the amount of dividend declared, the amount of net undivided profits, if any, remaining and the amount of total equity capital remaining.
Source: SL 1891, ch 27, § 13; RCivC 1903, § 859; SL 1909, ch 222, art 2, §§ 11, 36; SL 1911, ch 255, §§ 14, 16; SL 1915, ch 102, art 2, §§ 13, 40; RC 1919, §§ 8959, 8988, 9044, 9046; SL 1927, ch 214, § 2; SDC 1939, § 6.0439; SL 1953, ch 14, § 1; SDCL, §§ 51-4-23, 51-4-26; SL 1969, ch 11, § 3.7; SL 1987, ch 358; SDCL, § 51-17-8; SL 1988, ch 377, § 60; SDCL, § 51-17-20.3.
51A-3-19. Approval of director required for unusually large dividends.
The approval of the director is required before a dividend is declared if the total of all dividends, including the proposed dividend, declared by the directors of a bank in any calendar year exceeds the total of its net profits of that year to date combined with its retained net profits of the preceding two years, less any required transfers to surplus or a fund for the retirement of any preferred stock.
Source: SL 1969, ch 11, § 3.10; SDCL, §§ 51-17-11, 51-17-20.4; SL 1991, ch 390, § 2.
51A-3-20. Recovery of dividends paid when capital impaired.
Dividends paid to any stockholder of a bank, which shall in any way impair or diminish the capital, may be recovered from any stockholder receiving the same unless the capital impairment be subsequently made good. The directors of any bank, who pay a dividend when the bank is insolvent or in danger of insolvency, or when there are not sufficient net profits available, or when the bank is subject to an order pursuant to § 51A-2-26 prohibiting the payment of dividends, shall be jointly and severally liable to the creditors of the bank in existence at that time in double the amount of such dividend.
Source: SL 1909, ch 222, art 2, § 37; SL 1915, ch 102, art 2, § 41; RC 1919, § 8989; SDC 1939, § 6.0440; SDCL, §§ 51-4-25, 51-4-27; SL 1969, ch 11, § 3.9; SDCL, § 51-17-10; SL 1988, ch 377, § 61; SDCL, § 51-17-20.5.
51A-3-21. Net profits defined.
Net profits shall be equal to the net income or loss as reported by a bank in its reports of condition and income. In computing its net profits under this section, a bank may not add its provision for loan and lease losses to, nor deduct net charge offs from, its reported net income.
Source: SDCL, § 51-15-1(9); SL 1988, ch 377, § 1; SDCL, § 51-17-20.6; SL 1991, ch 390, § 3.
51A-3-22. Amendment of articles of incorporation--Changes requiring approval of director--Filing of amendments.
A bank may amend its articles of incorporation in the manner provided under §§ 47-1A-101 to 47-1A-863.3, inclusive, §§ 47-1A-1001 to 47-1A-1021, inclusive, and §§ 47-1A-1201 to 47-1A-1202.6, inclusive, upon amendment certified by its president, except that prior approval of the director shall be required for a bank to: change its name or location; acquire or abandon trust powers; change the number or par value of its shares of stock; change the amount of capital; or, extend its corporate existence. Such approval must be based upon a finding that the security of existing creditors will not be impaired by the proposed action. All such amendments shall be filed in the same manner as provided for original articles of incorporation.
Source: SL 1909, ch 222, art 2, § 15; SL 1915, ch 102, art 2, § 17; RC 1919, § 8963; SDC 1939, § 6.0307; SDCL, §§ 51-3-9, 51-4-6; SL 1969, ch 11, § 3.19; SDCL, § 51-17-21; SL 2005, ch 202, § 20.
51A-3-23. Extension of charter.
Within one year prior to the expiration of the period for which it was incorporated a bank may, with the approval of at least a majority of the capital stock of such corporation, extend its corporate existence for an additional period, not to exceed twenty years, by amending its articles of incorporation as provided in § 51A-3-22.
Source: SL 1903, ch 80, §§ 1 to 3; RC 1919, § 8964; SDC 1939, § 6.0308; SL 1941, ch 16; SDCL, § 51-3-10; SL 1969, ch 11, § 3.20; SL 1972, ch 254; SL 1980, ch 332, § 1; SDCL, § 51-17-22.
51A-3-24. Reporting transfers of stock.
All transfers of shares of bank stock in excess of five percent of the voting stock of a bank or of its parent holding company shall be immediately reported to the director. The transfer of such shares is not valid against a bank until recorded in the transfer books, but none may be recorded while the bank is subject to an order of the director to make good an impairment of capital. Any transfer shall be reported to the director if, after the transfer, the acquiring shareholder owns, directly or indirectly, twenty-five percent or more of the common stock of a bank or bank holding company unless notice of such fact had previously been reported to the director.
Source: SL 1909, ch 222, art 2, § 43; SL 1911, ch 255, § 22; SL 1915, ch 102, art 2, § 47; RC 1919, §§ 8995, 9052; SDC 1939, § 6.0310; SDCL, § 51-4-16; SL 1969, ch 11, § 3.21; SL 1981, ch 346, § 25; SL 1988, ch 377, § 69; SDCL, § 51-17-23.
51A-3-25. Change in control of bank.
For the purposes of application approval under § 51A-2-16, a change of control created by the acquisition of shares in satisfaction of a debt previously contracted in good faith or through testate or intestate succession, bona fide gift, or trust distribution does not require an application for change in control. The acquirer shall advise the director within thirty days after the acquisition and provide such information as the director may request.
For the purposes of this section, the term, control, means the power, directly or indirectly, to direct the management or policies of a bank or to vote twenty-five percent or more of any class of voting securities of a bank.
Source: SL 1988, ch 371, § 70; SL 1989, ch 411, § 1; SDCL § 51-17-23.1; SL 1991, ch 390, § 4; SL 2008, ch 252, § 16; SL 2012, ch 252, § 11.
51A-3-26. Lien on shares--Enforcement--Marking of certificates.
Any bank has a lien upon the shares of any stockholder of the bank or any stockholder of the parent bank holding company who is indebted to it, and for such purpose, in addition to stock duly recorded, the bank may enforce its lien against stock actually owned by the debtor but not recorded on the transfer books. All certificates for such stock shall have printed or stamped thereon the words: "Subject to lien for any indebtedness of holder to bank," and such lien is not enforceable against a purchaser in good faith unless such words are printed or stamped on such certificate.
Source: SL 1909, ch 222, art 2, § 43; SL 1911, ch 255, § 22; SL 1915, ch 102, art 2, § 47; RC 1919, §§ 8995, 9052; SDC 1939, § 6.0310; SDCL, §§ 51-4-17, 51-4-20; SL 1969, ch 11, § 3.22; SL 1970, ch 265, § 22; SL 1988, ch 377, § 71; SDCL, § 51-17-24.
51A-3-27. Purchase or purchase money loans on security of own stock prohibited--Exception.
No bank may make any purchase money loans or discounts on the security of the shares of its own capital stock, or on the shares of its parent holding company, nor be the purchaser or holder of any such shares unless such security or purchase is necessary to prevent loss upon a debt previously contracted in good faith. Stock so purchased or acquired shall, within six months of the time of its purchase, be sold or disposed of at public or private sale, and if not disposed of within that time, may no longer be included in the assets of such bank. However, a bank may purchase for fair value fractional shares of a bank's common stock from the holders thereof pursuant to the provisions set forth in Title 47 for the purpose of canceling the fractional shares if the bank meets all capital requirements after cancellation of the fractional shares.
Source: SDC 1939, § 6.0430; SL 1964, ch 12; SDCL, § 51-11-16; SL 1969, ch 11, § 4.15; SDCL, § 51-18-16; SL 1988, ch 377, § 92; SDCL, § 51-17-24.1; SL 1997, ch 270, § 1.
51A-3-28. Credit of dividends, interest, or profits on indebtedness--Foreclosure of lien.
While any indebtedness under § 51A-3-26 exists, all dividends, interest, or profits on such stock, if any, shall be credited by the bank on such indebtedness in the event the bank has exercised its rights to acquire or purchase the stock. The lien hereby created in favor of the bank may be foreclosed by such bank in the manner provided by law for the foreclosure of liens.
Source: SL 1909, ch 222, art 2, § 43; SL 1911, ch 255, § 22; SL 1915, ch 102, art 2, § 47; RC 1919, §§ 8995, 9052; SDC 1939, § 6.0310; SDCL, §§ 51-4-18, 51-4-19; SL 1969, ch 11, § 3.22; SL 1970, ch 265, § 23; SL 1988, ch 377, § 72; SDCL, § 51-17-25.
51A-3-29. Repealed by SL 2012, ch 252, § 12.
51A-3-30. Adoption and approval of bylaws.
Every bank shall adopt a code of bylaws before being authorized to commence business. Bylaws, as well as all amendments or additions thereto, so adopted shall be effective only after they have been approved by the director. After their adoption and approval they shall be spread at length upon the minute book of the bank and be subject to such rights of inspection as exist for other corporate books and records.
Source: SL 1909, ch 222, art 2, § 12; SL 1915, ch 102, art 2, § 14; RC 1919, § 8960; SDC 1939, § 6.0313; SDCL, § 51-3-12; SL 1969, ch 11, § 3.24; SDCL, § 51-17-27.
51A-3-31. Indemnification of officers, directors, or employees.
A bank may indemnify by purchase of insurance or otherwise any current or former officer, director, employee or agent, his heirs, personal representatives and successors in interest in the same manner and to the same extent as a business corporation may indemnify, pursuant to the provisions of §§ 47-1A-101 to 47-1A-863.3, inclusive, 47-1A-1001 to 47-1A-1021, inclusive, and §§ 47-1A-1201 to 47-1A-1202.6, inclusive.
Source: SL 1969, ch 11, § 3.25; SL 1970, ch 265, § 24; SL 1988, ch 377, § 74; SDCL § 51-17-28; SL 2005, ch 202, § 21.
51A-3-32. Board of directors--Number of members--Citizenship requirements--Election.
The board of directors of every bank shall consist of not less than five nor more than twenty-five members. At all times, at least three-fourths of the directors shall be citizens of the United States. With the exception of the president or the chief executive officer, the directors shall be elected by the shareholders.
Source: SDC 1939, § 6.0315; SDCL, § 51-3-13; SL 1969, ch 11, § 3.26; SL 1970, ch 265, § 25; SL 1981, ch 346, § 26; SL 1983, ch 14, § 22; SL 1988, ch 377, § 75; SDCL, § 51-17-29; SL 1996, ch 279, § 1.
51A-3-33. Removal of directors--Vote required.
Any director may be removed by the stockholders at any regular or special meeting, except that no director may be removed unless the votes cast against a motion for his removal are less than the total number of shares outstanding, divided by the number of authorized directors, but all of the directors may be removed if a majority of the outstanding shares approves a motion for the removal of all.
Source: SL 1969, ch 11, § 3.26; SDCL, § 51-17-30.
51A-3-34. Board of directors--Meetings.
The board of directors shall hold regular meetings at times prescribed in the bylaws of the bank. At no time may the bylaws provide for fewer meetings than the minimum number permitted by rule promulgated by the commission pursuant to chapter 1-26. Any director of the bank or the director of the Division of Banking may call a special meeting. The board of directors or an executive committee of not less than one-third of the board shall review at least quarterly the transactions occurring since the last review.
Source: SL 1909, ch 222, art 2, § 10; SL 1911, ch 255, § 15; SL 1915, ch 102, § 1, art 2, § 12; RC 1919, §§ 8958, 9045; SL 1925, ch 102, § 1; SL 1927, ch 214, § 1; SDC 1939, § 6.0316; SL 1953, ch 14, § 2; SDCL, § 51-3-16; SL 1969, ch 11, § 3.27; SL 1988, ch 377, § 76; SL 1989, ch 412; SDCL, § 51-17-32; SL 2020, ch 204, § 2.
51A-3-35. Election of officers--Terms--Vacancies.
The officers of every bank shall be elected by the board of directors at the board meeting held in January of each year. The president or chief executive officer shall be appointed by the elected board members to the board of directors. The officers shall hold office for one year and until their successors are elected and qualified, subject to removal by the board at any time. Vacancies may be filled by appointment of successors by the board of directors at any regular or special meeting, to hold office until the next regular election and until successors qualify.
Source: SDC 1939, § 6.0317; SL 1963, ch 24; SDCL, § 51-3-18; SL 1969, ch 11, § 3.28; SL 1988, ch 377, § 77; SDCL, § 51-17-34; SL 1996, ch 279, § 2.
51A-3-36. Names of officers and information forwarded to director--Vacancy on refusal to confirm.
Within ten days after the election or appointment of any officer, the board of directors shall cause to be forwarded to the director the name or names of such officer or officers together with such other information as may be required by the commission. If the director shall refuse to confirm the election or appointment of any such officer, such office shall immediately become vacant.
Source: SL 1933, ch 47, § 5, subdiv 9; SDC 1939, § 6.0317; SL 1963, ch 24; SDCL, § 51-3-19; SL 1969, ch 11, § 3.28; SL 1970, ch 265, § 26; SDCL, § 51-17-35.
51A-3-37. Bonds of officers and employees.
The directors of a bank shall direct and require good and sufficient fidelity bonds on all active officers and employees, whether or not they draw salaries or compensation, which bonds shall provide for indemnity to such bank on account of any losses sustained by it as a result of any dishonest, fraudulent, or criminal act or omission committed or omitted by them acting independently or in collusion or combination with any person or persons. Such bonds may be in individual, schedule, or blanket bond form, and the premiums therefor may be paid by the bank.
Source: SL 1909, ch 222, art 2, § 9; SL 1915, ch 102, art 2, § 11; RC 1919, § 8957; SL 1925, ch 96; SL 1933 (SS), ch 4; SL 1935, ch 58; SDC 1939, § 6.0318; SDCL, § 51-3-20; SL 1969, ch 11, § 3.29; SDCL, § 51-17-36.
51A-3-38. Insurance protection.
The directors of a bank shall also direct and require suitable insurance protection to the bank against robbery, burglary, theft and other insurable hazards to which the bank may be exposed in the operation of its business on the premises or elsewhere.
Source: SL 1969, ch 11, § 3.29; SDCL, § 51-17-37.
51A-3-39. Amount of bonds and insurance prescribed by bank directors--Approval by director of division.
The directors of a bank shall be responsible for prescribing at least once in each year the amount or penal sum of such bonds or policies and the sureties or underwriters thereon, after giving due and careful consideration to all known elements and factors constituting such risk or hazard. Such action shall be recorded in the minutes of the board of directors and thereafter be reported to the director and be subject to his approval.
Source: SL 1969, ch 11, § 3.29; SDCL, § 51-17-38.
CHAPTER 51A-4
GENERAL POWERS OF BANKS
51A-4-1 Miscellaneous banking powers.
51A-4-1.1 Banking with industrial hemp or marijuana licensees and associated persons authorized.
51A-4-2 Purchase and sale of securities on order of customer--Contract with securities brokerage services allowed.
51A-4-3 Operation of travel agency.
51A-4-4 Insurance business authorized.
51A-4-5 Certificate of authority required to engage in banking business--Misdemeanor.
51A-4-6 Order to cease and desist for violation--Right to appeal.
51A-4-7 Arrest and prosecution for violation.
51A-4-8 Deposit insurance required--Federal reserve system membership authorized.
51A-4-9 Real property authorized to be held by bank--Maximum book value of premises.
51A-4-10 Property authorized to be purchased to satisfy debts--Limitation on period of retention.
51A-4-11 51A-4-11. Repealed by SL 2014, ch 47, § 17.
51A-4-12 Checks settled at par--Payment from reserve deposits.
51A-4-13 Borrowing money by bank--Pledge of assets.
51A-4-14 "Bills payable" issued for money borrowed by bank--Record of amount borrowed.
51A-4-15 Rediscounting of negotiable paper--Limitation on pledge of assets as security.
51A-4-16 Sale, transfer, or assignment of loan participations.
51A-4-17 Sale of assets of bank.
51A-4-18 Grounds and procedure for nonobservance of banking hours--Extension of hours.
51A-4-19 Change in banking hours--Notice to division.
51A-4-20 Restriction on use of bank money to purchase other bank stock--Community investments authorized--Limitation on investment.
51A-4-20.1 "Community development corporation" defined.
51A-4-20.2 Qualification of community development corporation as permissible investment.
51A-4-20.3 Promulgation of rules for investment in community development corporations.
51A-4-20.4 Investments to promote public welfare authorized--Limitations.
51A-4-21 Bad debts--Maximum time allowed before charge-off--Overdraft not allowed as asset.
51A-4-22 Purchase of retail installment contract--Terms and effect of agreement.
51A-4-23 Leasing of personal property by bank--Terms and conditions.
51A-4-24 Factoring--Applicability of lending limit provisions.
51A-4-25 Bank investments--Restrictions set by rule--Limitations.
51A-4-25.1 Annuity defined.
51A-4-26 Exceptions to investment limitation--Purchase of federal, state, and municipal obligations and bonds or interim notes of South Dakota Building Authority.
51A-4-27 Investments in agricultural credit corporations and livestock loan companies.
51A-4-28 Restricted investment in mortgage banking companies authorized.
51A-4-29 Banks authorized to make or purchase loans secured by real estate mortgages--Sale of loans to Federal National Mortgage Association--Capital contributions.
51A-4-30 Investment in federally sponsored housing loans.
51A-4-31 51A-4-31 to 51A-4-40. Repealed by SL 2008, ch 252, §§ 18 to 27.
51A-4-41 Repealed.
51A-4-42 Restrictions on purchase of cash value life insurance contracts.
51A-4-43 Access to motor vehicle title and lien information on state's computer system.
51A-4-44 Financial institution and services defined.
51A-4-45 Contracts for services.
51A-4-46 Debt cancellation contracts and debt suspension contracts--Fee.
51A-4-1. Miscellaneous banking powers.
In addition to powers otherwise conferred by the laws of this state, a bank may exercise all such powers as are usual in carrying on the business of banking, including, the buying, discounting, and negotiating promissory notes, bonds, drafts, bills of exchange, foreign and domestic, and other evidences of debt; by receiving commercial and saving deposits under such rules as the commission may establish; by buying and selling coin and bullion, and by buying and selling exchange, foreign and domestic; issuing letters of credit, by loaning money on personal and real security, and by renting receptacles for safekeeping on its premises.
Source: SL 1891, ch 27, § 4; RCivC 1903, § 850; SL 1909, ch 222, art 2, § 4; SL 1911, ch 255, § 6; SL 1915, ch 102, art 2, § 5; RC 1919, §§ 8952, 9037; SDC 1939, § 6.0401 (4), (5); SDCL, §§ 51-6-7, 51-6-11; SL 1969, ch 11, § 4.1; SL 1988, ch 377, § 79; SDCL, § 51-18-1.
51A-4-1.1. Banking with industrial hemp or marijuana licensees and associated persons authorized.
A bank may, directly or through subsidiaries, carry on the business of banking, pursuant to § 51A-4-1, with any person licensed in this state to engage in the business of industrial hemp or marijuana, or with any person engaging in legal business dealings with such licensee.
Source: SL 2021, ch 202, § 1.
51A-4-2. Purchase and sale of securities on order of customer--Contract with securities brokerage services allowed.
A bank may, directly or through subsidiaries, purchase or sell without recourse any security upon the order of a customer for his account. The terms of this section shall be construed to permit banks to contract with securities brokerage services.
Source: SL 1969, ch 11, § 4.7; SDCL, § 51-18-7; SL 1988, ch 377, § 87; SDCL, § 51-18-1.1.
51A-4-3. Operation of travel agency.
A bank may operate a travel agency on its banking premises with the approval of the director.
Source: SL 1969, ch 11, § 4.19; SL 1970, ch 265, § 32; SDCL, §§ 51-18-1.2, 51-18-20.
51A-4-4. Insurance business authorized.
A bank is expressly empowered, directly or through subsidiaries, to engage in all facets of the insurance business.
Source: SL 1983, ch 356, § 5; SDCL, §§ 51-18-1.3, 51-18-30.
51A-4-5. Certificate of authority required to engage in banking business--Misdemeanor.
No person, partnership or corporation may advertise, publish or otherwise represent that he is engaged in the business of banking without having first obtained a certificate of authority from the director, as provided in this title. A violation of this section is a Class 1 misdemeanor.
Source: SL 1909, ch 222, art 2, § 47; SL 1915, ch 102, art 2, § 51; RC 1919, § 9000; SDC 1939, §§ 6.0403, 6.9905; SDCL, § 51-6-1; SL 1969, ch 11, § 4.2; SL 1980, ch 24, § 85; SL 1988, ch 377, § 80; SDCL, § 51-18-2.
51A-4-6. Order to cease and desist for violation--Right to appeal.
The director may, after determining that any person, partnership or corporation is in violation of § 51A-4-5, issue an order to cease and desist from all activities determined to be the business of banking. Any right to appeal such an order is subject to the provisions of chapter 1-26 governing contested cases.
Source: SL 1988, ch 377, § 81; SDCL, § 51-18-2.1.
51A-4-7. Arrest and prosecution for violation.
The director may take such action as necessary to cause the arrest and prosecution of any person in violation of § 51A-4-5. The state's attorney shall prosecute any violation in the county where such person, partnership or corporation is located; and upon his request or the request of the director, the attorney general shall assist in such prosecution.
Source: SL 1988, ch 377, § 82; SDCL, § 51-18-2.2.
51A-4-8. Deposit insurance required--Federal reserve system membership authorized.
Any bank authorized to engage in business under this title may obtain insurance of its deposits by the United States or any agency thereof. The commission may, by rule promulgated pursuant to chapter 1-26, establish requirements for insurance coverage of deposits. Any bank is authorized to acquire and hold membership in the federal reserve system. Such bank shall nevertheless be subject to the supervision and examination required by the laws of this state relating to banks.
Source: SL 1915, ch 102, art 2, § 36; RC 1919, § 8983; SL 1919, ch 125; SL 1933 (SS), ch 1, § 1; SL 1935, ch 61, § 1; SDC 1939, §§ 6.0405, 6.0408; SDCL, §§ 51-6-12, 51-6-13; SL 1969, ch 11, § 4.3; SL 1988, ch 377, § 83; SDCL, § 51-18-3.
51A-4-9. Real property authorized to be held by bank--Maximum book value of premises.
Except as provided in §§ 51A-4-10, a bank may lease, purchase, hold, and convey in its own name, or through investment in a corporation organized solely to lease such property to it, only the following real property:
(1) That which it occupies or intends to occupy for the transaction of its business or which it partly so occupies and partly rents or leases to others;
(2) That which is used for accommodation in the transaction of the bank's business, including parking, storage and preservation of records, and data processing facilities; or
(3) That which is used for housing or recreation accommodations for attracting and retaining employees.
All such accommodations shall be of a reasonable nature.
The book value of a bank's premises may not exceed in the aggregate one hundred percent of the bank's capital stock and surplus. However, the director may authorize a larger investment, upon formal application and after an investigation, if the sound conduct of banking will not be adversely affected by the larger investment. For the purposes of this section, book value includes those amounts which are to be reported as premises and fixed assets according to the instructions for consolidated reports of condition filed with the division.
Source: SDC 1939, §§ 6.0410 (1), 6.0430; SL 1964, ch 12; SDCL §§ 51-11-17, 51-11-18; SL 1969, ch 11, § 4.4; SL 1981, ch 346, § 29; SL 1986, ch 400, § 13; SL 1988, ch 377, § 84; SDCL § 51-18-4; SL 1991, ch 390, § 5; SL 1999, ch 235, § 1; SL 2012, ch 252, § 13; SL 2020, ch 4, § 27.
51A-4-10. Property authorized to be purchased to satisfy debts--Limitation on period of retention.
A bank may, by itself or through a subsidiary, acquire, hold and convey property of any kind to satisfy debts previously contracted in good faith and in the ordinary course of business at a purchase price which is no greater than the aggregate of the debt, interest and other costs, provided that such property shall be held subject to the following limitations:
(1) Personal property held by the bank shall be sold within six months or such additional period not exceeding one year as the director may allow;
(2) Real property shall be sold within five years, unless an extension be granted by the director.
Source: SL 1891, ch 27, § 5; RCivC 1903, § 851; SL 1909, ch 222, art 2, § 16; SL 1915, ch 102, art 2, § 18; RC 1919, § 8965; SDC 1939, § 6.0410 (2), (3); SDCL, § 51-11-19; SL 1969, ch 11, § 4.5; SL 1970, ch 265, § 27; SL 1981, ch 346, § 30; SL 1988, ch 377, § 85; SDCL, § 51-18-5.
51A-4-12. Checks settled at par--Payment from reserve deposits.
Except as to any check sent to it as a special collection item, no bank shall settle any check drawn on it otherwise than at par. Any check bearing an out-of-town endorsement shall be, at the option of the drawee bank, payable by draft drawn on the reserve deposits of the drawee bank when any such check is presented by or through any bank, banker, trust company, federal reserve bank, post office, express company, or collective agency, or agents of any of the foregoing.
Source: SL 1920 (SS), ch 31, § 1; SDC 1939, § 6.0421; SL 1947, ch 26; SDCL, § 51-6-8; SL 1968, ch 7, § 1; SL 1969, ch 11, § 4.8; SDCL, § 51-18-8.
51A-4-13. Borrowing money by bank--Pledge of assets.
A bank may borrow money and pledge assets for terms, and upon conditions, established by the Banking Commission in rules promulgated pursuant to chapter 1-26.
Source: SDC 1939, § 6.0423; SDCL, § 51-6-14; SL 1969, ch 11, § 4.9; SL 1981, ch 346, § 31; SDCL, § 51A-4-13; SL 1999, ch 236, § 1.
51A-4-14. "Bills payable" issued for money borrowed by bank--Record of amount borrowed.
A bank shall issue its "bills payable" for any money borrowed by it, and shall show on its books and in all reports and statements made by it, the true amount of money borrowed by it.
Source: SL 1909, ch 222, art 2, § 33; SL 1915, ch 102, art 2, § 37; SL 1918 (SS), ch 29; RC 1919, § 8984; SL 1919, ch 124; SL 1925, ch 92; SL 1927, ch 53; SL 1933, ch 50; SDC 1939, § 6.0424; SDCL, § 51-6-15; SL 1969, ch 11, § 4.9; SDCL, § 51-18-10.
51A-4-15. Rediscounting of negotiable paper--Limitation on pledge of assets as security.
A bank may rediscount in good faith and endorse any of its negotiable paper. However, no bank may pledge any of its assets as collateral security for the payment thereof, except as required by rules of the federal reserve bank. The director may require such bank to repay any such rediscounts.
Source: SL 1909, ch 222, art 2, § 33; SL 1915, ch 102, art 2, § 37; SL 1918 (SS), ch 29; RC 1919, § 8984; SL 1919, ch 124; SL 1925, ch 92; SL 1927, ch 53; SL 1933, ch 50; SDC 1939, § 6.0425; SDCL § 51-6-17; SL 1969, ch 11, § 4.10; SDCL § 51-18-11; SL 2012, ch 252, § 14.
51A-4-16. Sale, transfer, or assignment of loan participations.
A bank may sell, transfer or assign participations in mortgage loans and other loans made by a bank to agencies of the state or federal government, to public instrumentalities, or to financial institutions of any type including, but not limited to, banks, savings and loan associations, finance companies, bank holding companies, insurance companies and other financial institutions, whether such institution is incorporated or chartered in the state of South Dakota or in another state.
Source: SL 1981, ch 346, § 39; SDCL, §§ 51-18-11.1, 51-18-29.
51A-4-17. Sale of assets of bank.
A bank may sell any asset in the ordinary course of business, or, with the approval of the director in any other circumstance, but the sale of all or substantially all of the assets of a bank or a department thereof is considered a voluntary liquidation and governed by chapters 51A-14 and 51A-15.
Source: SL 1969, ch 11, § 4.11; SL 1970, ch 265, § 29; SL 1981, ch 346, § 32; SL 1988, ch 377, § 88; SDCL, § 51-18-12.
51A-4-18. Grounds and procedure for nonobservance of banking hours--Extension of hours.
In the event of a legal holiday, power failure, fire, act of God, riot, strike, robbery or attempted robbery, epidemic, interruption of communication facilities, or for such other reason as the director may determine to be good cause, or in the event of the declaration of the existence of an emergency by the Governor or such other person lawfully exercising the power and duties of the office of Governor, a bank, in the reasonable and proper exercise of its discretion, may determine not to open its main office or any branch on any business or banking day, or, if having opened, to close such main office or any branch during the continuation of any such occurrence or emergency.
Except for legal holidays, the bank shall, as soon as practicable, notify the director of the nonopening or closing period. In no case may the bank be required to comply with any other provision of law regarding the closing or reopening of banks or financial institutions. Any act, which could not be executed because of the closing, may be performed on the next succeeding business day that the main office or branch is reopened for business. Any other provision or rule of law notwithstanding, no liability or loss of rights of any kind on the part of any person, firm, or corporation, or of such bank, may accrue or result by virtue of the nonopening or closing.
In the event of an emergency or natural disaster affecting a bank's community, a bank may, without notice or advance permission from the director, temporarily extend its banking hours for the public convenience during the term of the emergency and disaster. In the event of an emergency or natural disaster, the director may waive any provision under this Title to provide for the continued access to banking facilities by the citizens of this state.
The right of a bank not to open or close under this section and the protections afforded with respect thereto are in addition to and not in lieu of any rights or protections granted under § 57A-4-108.
Source: SL 1969, ch 11, § 4.12; SL 1981, ch 346, § 33; SL 1986, ch 27, § 53; SL 1988, ch 377, § 89; SDCL § 51-18-13; SL 2008, ch 252, § 17.
51A-4-19. Change in banking hours--Notice to division.
If any bank adopts new hours of operation for its daily business to customers, it shall inform the division prior to the effective date of the change.
Source: SL 1969, ch 11, § 4.13; SL 1981, ch 346, § 34; SL 1988, ch 377, § 90; SDCL, § 51-18-14.
51A-4-20. Restriction on use of bank money to purchase other bank stock--Community investments authorized--Limitation on investment.
No bank may employ its money, directly or indirectly, in the purchase of the stock of any other bank. However, a bank, or branch bank, may make reasonable contributions to local community agencies or groups to further the physical, economic, and social development of the bank's community. Such contribution may take the form of an investment in a corporation organized to carry on such activities and development. A bank may invest in a community development corporation and like entities and carry such investment as an asset on its books. However, the bank's investment in any one community development corporation or like entity may not exceed two percent of the bank's capital, surplus and undivided profits and the aggregate of all such investments held by the bank may not exceed five percent of the bank's capital, surplus, and undivided profits.
Source: SDC 1939, § 6.0430; SL 1964, ch 12; SDCL, § 51-11-15; SL 1969, ch 11, § 4.14; SL 1970, ch 265, § 30; SL 1986, ch 400, § 15; SL 1988, ch 377, § 91; SDCL, § 51-18-15; SL 1992, ch 334, § 1.
51A-4-20.1. "Community development corporation" defined.
For the purposes of §§ 51A-4-20 to 51A-4-20.3, inclusive, the term "community development corporation" is limited to those community development corporations that are substantially invested in South Dakota communities.
Source: SL 1992, ch 334, § 1A.
51A-4-20.2. Qualification of community development corporation as permissible investment.
To qualify as a permissible investment for banks pursuant to § 51A-4-20, a community development corporation shall be of a predominantly civic, community, or public nature and not merely private and entrepreneurial. Any project or entity which has been approved as a community development corporation by the Office of the Comptroller of the Currency, the Federal Reserve Board, or any other federal bank regulatory authority shall be eligible for investment by a bank, subject to the limitations of §§ 51A-4-20 to 51A-4-20.3, inclusive.
Source: SL 1992, ch 334, § 1B.
51A-4-20.3. Promulgation of rules for investment in community development corporations.
The Banking Commission may, by rule promulgated pursuant to chapter 1-26, establish additional requirements concerning a bank's investment in community development corporations and may establish criteria for permissible community development corporation investments.
Source: SL 1992, ch 334, § 1C.
51A-4-20.4. Investments to promote public welfare authorized--Limitations.
A bank may make investments designed primarily to promote the public welfare, including the welfare of low and moderate income communities or families. A bank may make such investments directly or by purchasing interests in an entity primarily engaged in making such investments. No bank may make any such investment if the investment would expose the bank to unlimited liability. The director shall limit a bank's investments in any one project and a bank's aggregate investments under this section. A bank's aggregate investments under this section may not exceed an amount equal to the sum of five percent of the bank's capital, surplus, and undivided profits, unless the director determines by order that the higher amount will not pose a significant risk to the bank and the bank is adequately capitalized. In no case may a bank's aggregate investments under this section exceed an amount equal to the sum of ten percent of the bank's capital stock actually paid in and unimpaired and ten percent of the bank's unimpaired surplus fund.
Source: SL 2002, ch 218, § 1; SL 2015, ch 239, § 2.
51A-4-21. Bad debts--Maximum time allowed before charge-off--Overdraft not allowed as asset.
Any debt due to any bank on which the interest is past due and unpaid for a period of six months unless the debt is well secured or in process of collection, shall be considered a bad debt and be charged to the reserve for loan and lease losses. In no case may an overdraft be held as an asset by any bank for a period of time longer than that set by the rules of the commission.
Source: SDC 1939, § 6.0432; SDCL, § 51-11-14; SL 1969, ch 11, § 4.16; SL 1981, ch 346, § 35; SL 1988, ch 377, § 93; SDCL, § 51-18-17; SL 1991, ch 390, § 6; SL 1997, ch 271, § 1.
51A-4-22. Purchase of retail installment contract--Terms and effect of agreement.
A bank may purchase or acquire or agree to purchase or acquire, from any seller, any retail installment contract on such terms and conditions and for such price as may be agreed upon between them. Any such agreement does not give rise to any agency relationship between the bank and such seller, neither being agent nor principal of the other.
Source: SL 1969, ch 11, § 4.17; SL 1988, ch 377, § 94; SDCL, § 51-18-18.
51A-4-23. Leasing of personal property by bank--Terms and conditions.
A bank may, on its own behalf or through a designated subsidiary, acquire and lease to others, personal property with the approval of the director or in accordance with rules adopted by the commission, upon the following terms and conditions:
(1) The original lease shall be in writing and shall be entered into prior to the acquisition of the property to be leased; and
(2) The terms of such lease shall require payment to the bank or subsidiary of rentals during the minimum period of the lease which in the aggregate will exceed the total expenditures by the bank for or in connection with the acquisition, ownership, and protection of the property, less residual value of the property.
Source: SL 1969, ch 11, § 4.18; SL 1970, ch 265, § 31; SL 1988, ch 377, § 95; SDCL, § 51-18-19.
51A-4-24. Factoring--Applicability of lending limit provisions.
A bank may engage in the business of purchasing open accounts. Where a bank purchases open accounts but the seller agrees to repurchase such accounts upon default, the seller's obligation to repurchase shall be taken into consideration in computing the bank's lending limit to the seller under § 51A-12-2. Such obligation shall be measured by the total unpaid balance of the open accounts owned by the bank less the applicable seller's reserves against defaulted open accounts, if any. Where the seller's obligation to repurchase is limited, it shall be measured by the total amount of the open accounts which the seller may ultimately be obligated to repurchase.
Where no more than the agreed percentage of the price paid for such open accounts is retained and credited to a reserve to be held as a form of collateral security, and where the bank has no direct or indirect recourse against the seller for uncollectibility, neither the reserve nor the obligations of the parties liable on such accounts constitute obligations of the seller subject to the lending limit under § 51A-12-2.
Source: SL 1969, ch 11, § 4.20; SL 1970, ch 265, § 33; SDCL, § 51-18-21.
51A-4-25. Bank investments--Restrictions set by rule--Limitations.
A bank may purchase for its own account investment securities and registered mutual funds that invest exclusively in securities of the United States or its agencies and annuities as defined in § 51A-4-25.1 under such limits and restrictions as the commission may prescribe by rule, promulgated pursuant to chapter 1-26. In no event may the total amount of the investment securities of any one obligor or maker held by the bank for its own account exceed twenty percent of the capital stock and surplus and ten percent of the undivided profits of such bank except as provided in § 51A-4-26.
Source: SL 1969, ch 11, § 4.21; SL 1986, ch 400, § 14; SL 1988, ch 377, § 96; SDCL, § 51-18-22; SL 1994, ch 362; SL 2002, ch 219, § 1; SL 2020, ch 4, § 28.
51A-4-25.1. Annuity defined.
For the purposes of § 51A-4-25, an annuity is an investment that credits interest from the inception of the contract, has an interest guarantee period that may be from thirty days to one year in length, and is backed by the assets of the insurer. The insurer shall be rated in the top three categories of both Standard and Poor's Corporation and Moody's Investors Service. The annuity shall be fully liquid, unless otherwise provided for by Title 58. The annuity may not be subject to any surrender charge.
Source: SL 2002, ch 219, § 2; SL 2005, ch 252, § 1.
51A-4-26. Exceptions to investment limitation--Purchase of federal, state, and municipal obligations and bonds or interim notes of South Dakota Building Authority.
A bank may, without limitation as to capital stock and surplus, purchase bonds, notes, debentures, or other obligations issued by or the payment of which is guaranteed by the United States government or any agency or subdivision thereof, including the Federal Home Loan Mortgage Corporation, Federal Agricultural Mortgage Corporation, the State of South Dakota, any state, territorial, or insular possession of the United States, any county, rural district, school district, municipality, or township of the State of South Dakota, or any out-of-state county, municipality, or political subdivision, if such bonds, notes, debentures, or obligations are general obligations of the issuing authority. A bank may, without such limitation purchase state, municipal, or school district subdivision bonds or notes which are fully defeased as to principal and interest and may also purchase bonds or interim notes issued by the South Dakota Building Authority. The Banking Commission may by rule grant additional investment exceptions, if such additional investments are the general obligation of the issuing authority. A bank may purchase stock in the Federal Agricultural Mortgage Corporation established under Title VII of the Agricultural Credit Act of 1987 (P.L. 233).
Source: SDC 1939, § 6.0428 as added by SL 1957, ch 14; SL 1961, ch 19; SL 1963, ch 27; SL 1966, ch 14; SDCL, § 51-11-1; SL 1969, ch 11, § 4.22; SL 1970, ch 265, § 34; SL 1978, ch 352, § 2; SL 1984, ch 312; SL 1988, ch 377, § 97; SL 1988, ch 379, § 1; SL 1988, ch 380, § 1; SDCL, § 51-18-23.
51A-4-27. Investments in agricultural credit corporations and livestock loan companies.
Any bank may purchase and own stock and capital notes or other evidence of debt issued by:
(1) An agricultural credit corporation or livestock loan company, or its affiliate, the principal business of which corporation is the extension of short and intermediate term credit to farmers and ranchers, including partnerships and corporations legally engaged in farming as defined in subdivision 47-9A-2(4) in accordance with the provisions of chapter 47-9A; and
(2) Exempt corporations as provided in §§ 47-9A-10 and 47-9A-11.
Unless a bank owns at least eighty percent of the stock of the agricultural credit corporation or livestock loan company, it may not obligate more than twenty percent of its capital stock and surplus for those purposes. Under no circumstances may a bank obligate more than twenty percent of its capital stock and surplus and undivided profits for that purpose. Any agricultural credit corporation or livestock loan company, or its affiliate, has the same privileges as a state chartered bank or trust company provided in § 47-9A-4.
Source: SL 1977, ch 398; SL 1981, ch 346, § 36; SL 1982, ch 335; SL 1983, ch 358; SL 1988, ch 377, § 98; SDCL, § 51-18-23.1.
51A-4-28. Restricted investment in mortgage banking companies authorized.
Any bank may purchase and own stock and capital notes or other evidence of debt issued by a mortgage banking company, or its affiliate, the principal business of which is the extension of short, intermediate or long-term credit to individuals, partnerships and corporations, which credit is secured by real estate mortgages. A bank shall own at least eighty percent of the stock of any such mortgage banking company and may not obligate more than thirty percent of its capital stock and surplus and undivided profits for such purpose.
Source: SL 1984, ch 313; SL 1988, ch 377, § 99; SDCL, § 51-18-23.2.
51A-4-29. Banks authorized to make or purchase loans secured by real estate mortgages--Sale of loans to Federal National Mortgage Association--Capital contributions.
A bank or other banking organization, organized under the laws of this state, which has as one of its principal purposes the making or purchasing of loans secured by real estate mortgages, may make real estate mortgage loans in any form, including but not limited to variable rate mortgages, collateral real estate mortgages, renegotiated rate mortgages, and shared appreciation mortgages, unless otherwise prohibited by law and may, notwithstanding any other provision of law, sell such mortgage loans to the Federal National Mortgage Association, a corporation chartered by an act of Congress, or any successor thereof, and in connection therewith may make payments of any capital contributions, required pursuant to law, in the nature of subscriptions for stock of the Federal National Mortgage Association or any successor thereof, and may receive stock evidencing such capital contributions, and hold or dispose of such stock.
Source: SL 1955, ch 231; SDC Supp 1960, § 39.0309; SDCL, § 51-11-2; SL 1981, ch 346, § 37; SDCL, § 51-18-24; SL 1995, ch 268, § 65.
51A-4-30. Investment in federally sponsored housing loans.
Banks and trust companies authorized to do business under this title that are approved or certified by the secretary of housing and urban development or approved or certified by the administrator of veterans affairs may:
(1) Make such loans and advances of credit and purchases of obligations representing loans and advances of credit as are eligible for insurance by the federal housing administration or the administrator of veterans affairs and to obtain such insurance;
(2) Make such loans, secured by real property or leasehold, as the federal housing administration or the administrator of veterans affairs insures or makes a commitment to insure and to obtain such insurance.
Source: SL 1935, ch 112, § 1; SL 1937, ch 161, § 1; SDC 1939, § 55.4401; SDCL, § 51-11-3; SL 1970, ch 266; SL 1988, ch 377, § 100; SDCL, § 51-18-25.
51A-4-42. Restrictions on purchase of cash value life insurance contracts.
A bank may purchase cash value life insurance contracts under such limits and restrictions as the commission may prescribe by rules promulgated pursuant to chapter 1-26.
Source: SL 1993, ch 350.
51A-4-43. Access to motor vehicle title and lien information on state's computer system.
Any bank may be provided access to motor vehicle title and lien information maintained on the state's computer system via a modem and terminal owned by the bank. The Department of Labor and Regulation shall promulgate rules pursuant to chapter 1-26 to specify access availability. The secretary of state shall promulgate rules pursuant to chapter 1-26 to specify cost of access. The Department of Revenue may deny or revoke authority previously granted for accessing this information if the information accessed is used for any reason unrelated to the business of the bank.
Source: SL 1994, ch 363, § 1; SL 2003, ch 272 (Ex. Ord. 03-1), § 82; SL 2011, ch 1 (Ex. Ord. 11-1), § 162, eff. Apr. 12, 2011.
51A-4-44. Financial institution and services defined.
Terms used in § 51A-4-45 mean:
(1) "Financial institution," a National Banking Association, Federal Savings and Loan Association having its main office in this state, or a bank established and operated under the laws of this state;
(2) "Services," receiving deposits, renewing time deposits, closing loans, servicing loans, and receiving payments on loans and other obligations.
Source: SL 1995, ch 267, § 1; SL 2015, ch 239, § 3.
51A-4-45. Contracts for services.
Unless prohibited by another provision of statute, a financial institution, known as the customer institution, may contract with another financial institution, known as the service institution, to grant the service institution the authority to render services to the depositors, borrowers, or other customers of the customer institution, after notice of the proposed contract is given to the director and the director does not object to the contract within thirty days of the notice. A contract may include authority to conduct transactions at or through any principal office, branch, or detached facility of either financial institution which is party to the contract. For the purposes of this section, the service institution is not considered a branch of the customer institution. Nothing in this section or § 51A-4-44 may be construed to apply to any loan production office as defined in subdivision 51A-1-2(18).
Source: SL 1995, ch 267, § 2; SL 2012, ch 252, § 15; SL 2015, ch 239, § 4.
51A-4-46. Debt cancellation contracts and debt suspension contracts--Fee.
A bank may enter into debt cancellation contracts and debt suspension contracts and charge a fee for those contracts in connection with any extension of credit that it makes to its customers.
Source: SL 2004, ch 290, § 2.
CHAPTER 51A-5
TRUST BUSINESS OF BANKS
51A-5-1 Use of "trust" in name restricted--Exercise of trust powers restricted--Misdemeanor.
51A-5-1.1 Powers of banks engaging in trust business.
51A-5-1.2 "Trust business" defined.
51A-5-2 Bank as trustee or custodian for retirement benefit plans.
51A-5-3 Fiduciary authority of bank authorized by charter to exercise trust powers.
51A-5-4 Deposit required to do trust business--Amount and form of deposit--Disposition of income.
51A-5-5 Deposit available for satisfaction of claims upon liquidation, abandonment of trust powers, or resignation from fiduciary positions.
51A-5-6 National banks' authority to engage in trust business--Examination of trust business--Acceptance of federal examination.
51A-5-7 Foreign bank or trust company to comply with requirements to act as fiduciary in state--Violation as misdemeanor.
51A-5-8 Reciprocal privileges extended to foreign bank or trust company acting as fiduciary.
51A-5-9 Filing with Office of the Secretary of State by foreign bank or trust company acting as fiduciary--Designation as agent to receive process--Service of process.
51A-5-10 Establishment of place of business not permitted or prohibited by filing requirements.
51A-5-11 Investment powers of trust company.
51A-5-12 Voting of bank shares by cotrustee.
51A-5-13 Segregation of assets held by bank as fiduciary.
51A-5-14 Deposit of federally guaranteed securities with federal reserve bank.
51A-5-15 Records of depositor to show ownership of securities--Transfers by book entries.
51A-5-16 Custodian to certify deposited securities to fiduciary--Duty of fiduciary.
51A-5-17 Application of provisions to fiduciaries and custodians whenever appointed.
51A-5-18 51A-5-18. Repealed by SL 2011, ch 212, § 19.
51A-5-19 Oath or bond not required of bank to qualify as fiduciary.
51A-5-20 Nominees used by bank acting as fiduciary or cofiduciary.
51A-5-21 Deposit in clearing corporation of securities held as fiduciary or custodian.
51A-5-22 Ownership of stock in clearing corporation not required for deposit of securities by fiduciary or custodian.
51A-5-23 Holding in bulk of securities deposited in clearing corporation--Merger of certificates.
51A-5-24 Records of securities deposited in clearing corporation--Transfer by book entry--Certification to interested party of securities held.
51A-5-25 Approval or ratification of acceptance or relinquishment of fiduciary accounts by board of directors or committee.
51A-5-26 Supervision of investment of fiduciary funds by committee designated by board of directors.
51A-5-27 Reports of committees designated to supervise fiduciary accounts.
51A-5-28 Repealed
51A-5-29 Repealed
51A-5-30 Repealed
51A-5-31 Repealed
51A-5-32 Repealed
51A-5-1. Use of "trust" in name restricted--Exercise of trust powers restricted--Misdemeanor.
No person may assume or use the word "trust" in such person's name in any manner which infers or suggests that the person has authority to transact such business unless the person is authorized to transact trust business pursuant to this title. A violation of this paragraph is a Class 2 misdemeanor.
No bank may exercise trust powers unless it is so authorized by its articles of incorporation and approved by the director and it has qualified by making the deposit required by § 51A-5-4. Any person who exercises trust powers in violation of this section is guilty of a Class 2 misdemeanor.
Source: SDC 1939, §§ 6.0504, 6.9906; SDCL § 51-7-1; SL 1969, ch 11, § 5.1; SL 1970, ch 265, § 35; SL 1975, ch 291; SL 1980, ch 24, § 86; SL 1988, ch 377, § 109; SL 1990, ch 158, § 5; SL 1990, ch 158, § 5; SDCL § 51-19-1; SL 1994, ch 364, § 1; SL 2008, ch 258, § 1.
51A-5-1.1. Powers of banks engaging in trust business.
Banks engaging in the trust business pursuant to this chapter have all powers necessary and incidental to carrying on the trust business, including:
(1) Acting as agent, custodian, or attorney-in-fact for any person, and, in such capacity, taking and holding property on deposit for safekeeping and acting as general or special agent or attorney-in-fact in the acquisition, management, sale, assignment, transfer, encumbrance, conveyance, or other disposition of property, in the collection or disbursement of income from or principal of property and, generally in any matter incidental to any of the foregoing;
(2) Acting as registrar or transfer agent for any corporation, partnership, association, municipality, state, or public authority, and in such capacity, receiving and disbursing money, transferring, registering, and countersigning certificates of stock, bonds or other evidences of indebtedness or securities and performing any and all acts which may be incidental thereto;
(3) Acting as trustee or fiduciary under any mortgage or bond issued by a person;
(4) Acting as trustee or fiduciary under any trust established by a person;
(5) Acting as fiduciary, assignee for the benefit of creditors, receiver or trustee under or pursuant to the order or direction of any court or public official of competent jurisdiction;
(6) Acting as fiduciary, guardian, conservator, assignee, or receiver of the estate of any person and as executor of the last will and testament or administrator, fiduciary or personal representative of the estate of any deceased person when appointed by a court or public official of competent jurisdiction;
(7) Establishing and maintaining common trust funds or collective investment funds pursuant to the provisions of chapter 55-6; or
(8) Acting in any fiduciary capacity and performing any act as a fiduciary which a trust company organized under chapter 51A-6A may perform.
Source: SL 1995, ch 268, § 85; SL 2011, ch 212, § 20; SL 2021, ch 203, § 1.
51A-5-1.2. "Trust business" defined.
Trust business is engaging in, or holding out to the public as willing to engage in, the business of acting as a fiduciary for hire, except that no abstractor, accountant, attorney, credit union, insurance broker, insurance company, investment advisor, real estate broker or sales agent, savings and loan association, savings bank, securities broker or dealer, real estate title insurance company or real estate escrow company shall be deemed to be engaged in a trust business with respect to fiduciary services customarily performed by them for compensation as a traditional incident to their regular business activities.
Source: SL 1995, ch 268, § 85A.
51A-5-2. Bank as trustee or custodian for retirement benefit plans.
Pursuant to rules of the commission and the terms of Public Law 93-406, the Employees Retirement Income Security Act of 1974 and the Self-employed Individuals Tax Retirement Act of 1962, a bank may act as trustee or custodian for individual retirement accounts, HR 10 Keogh accounts or both such accounts, or any other pension, profit-sharing, money purchase, or other retirement benefit plan.
Source: SDCL, § 51-19-1 as added by SL 1975, ch 291; SL 1981, ch 346, § 40; SL 1988, ch 377, § 110; SDCL, § 51-19-1.1.
51A-5-3. Fiduciary authority of bank authorized by charter to exercise trust powers.
A bank authorized to exercise trust powers may act as fiduciary in any capacity, including, but without limitation, registrar or transfer agent, fiscal agent or attorney in fact, and as having the power to receive and apply sinking funds.
Source: SL 1911, ch 255, § 17; RC 1919, § 9047; SDC 1939, § 6.0501 (1) to (4), (6); SDCL, §§ 51-7-4 to 51-7-8; SL 1969, ch 11, § 5.2; SL 1988, ch 377, § 111; SDCL, § 51-19-2.
51A-5-4. Deposit required to do trust business--Amount and form of deposit--Disposition of income.
Any bank empowered by its articles of incorporation to do trust business, shall, before transacting any such business, deposit and keep on deposit with the division evidences of indebtedness acceptable to the director which are payable to bearer or recorded in the name of the division and which constitute readily marketable legal investments for funds held by a bank as fiduciary in the amount of one hundred thousand dollars. Such deposit shall be for the security of the trust creditors of such bank or trust company, and shall be in bonds or notes and mortgages on real property within this state worth double the amount secured thereby, or insured by the federal housing administration, or bonds of the United States, or any state of the United States that has not defaulted on its principal or interest within ten years, or any organized county or township or first or second class municipality or school district in this state or some other state, and upon which there has been no default in payment of interest or principal. Income from such securities shall belong to and be paid the bank or trust company as long as it continues to conduct its business in the ordinary course and so long as authorized by the director.
Source: SDC 1939, § 6.0502; SDCL § 51-7-2; SL 1969, ch 11, § 5.3; SL 1970, ch 265, § 36; SL 1988, ch 377, § 112; SDCL § 51-19-3; SL 1992, ch 60, § 2; SL 1994, ch 364, § 2; SL 2010, ch 232, § 23.
51A-5-5. Deposit available for satisfaction of claims upon liquidation, abandonment of trust powers, or resignation from fiduciary positions.
Upon liquidation, abandonment of trust powers, or resignation from all fiduciary positions, the deposit shall be made available for the reasonable satisfaction of claims involving fiduciary accounts. Any surplus remaining after the satisfaction of all such claims shall be returned to the bank or trust company.
Source: SL 1969, ch 11, § 5.3; SDCL, § 51-19-4; SL 1995, ch 268, § 66.
51A-5-6. National banks' authority to engage in trust business--Examination of trust business--Acceptance of federal examination.
It is lawful for any national bank to engage in trust business in this state to the extent authorized by the laws of the United States, without incorporating or organizing under the laws of this state, but a national bank shall otherwise comply with and be subject to all laws of this state which are applicable to state banks engaged in trust business including such examinations as may be deemed necessary, except that the authority of the commission and the director shall apply to their trust business only. The director may accept in lieu of an examination conducted under the director's direction, any report of examination conducted by the appropriate federal regulatory agency.
Source: SL 1915, ch 105; RC 1919, § 8985; SL 1929, ch 76; SDC 1939, § 6.0503; SDCL, § 51-7-3; SL 1969, ch 11, § 5.4; SL 1970, ch 265, § 37; SL 1988, ch 377, § 113; SDCL, § 51-19-5; SL 2004, ch 289, § 10.
51A-5-7. Foreign bank or trust company to comply with requirements to act as fiduciary in state--Violation as misdemeanor.
No bank or trust company organized and doing business under the laws of any state or territory of the United States of America, or of the District of Columbia, other than South Dakota, or a national bank doing business in any other state, territory, or district, may act in a fiduciary capacity in this state, except pursuant to the provisions of §§ 51A-5-8 to 51A-5-10, inclusive. A violation of this section is a Class 2 misdemeanor.
Source: SL 1973, ch 292, § 4; SL 1990, ch 158, § 28; SDCL, § 51-19-5.1; SL 1995, ch 268, § 67; SL 1997, ch 272, § 5.
51A-5-8. Reciprocal privileges extended to foreign bank or trust company acting as fiduciary.
A bank or trust company organized and doing trust business under the laws of any state or territory of the United States of America, including the District of Columbia, other than South Dakota, and a national bank, duly authorized so to act, may be appointed and may serve in this state as trustee, whether of a corporation or personal trust, personal representative, guardian, conservator, or committee for an incompetent person, or in any other fiduciary capacity, whether the appointment is by will, deed, court order, or decree, or otherwise, when and to the extent that the state, territory, or district in which the bank or trust company is organized or has its principal place of business grants authority to serve in like fiduciary capacities to a bank or trust company organized and doing business under the laws of this state.
Source: SL 1973, ch 292, § 1; SL 1988, ch 377, § 114; SDCL § 51-19-5.2; SL 1995, ch 268, § 68; SL 1997, ch 272, § 6.
51A-5-9. Filing with Office of the Secretary of State by foreign bank or trust company acting as fiduciary--Designation as agent to receive process--Service of process.
Before qualifying or serving in this state in any fiduciary capacity, as defined in § 51A-5-8, the bank or trust company shall file in the Office of the Secretary of State of South Dakota, a copy of its charter certified by its secretary under its corporate seal, and a power of attorney designating the secretary of state or the secretary of state's successor in office as the person upon whom all notices and processes issued by any court of this state may be served in any action or proceeding relating to any trust, estate, or matter within this state in respect of which the bank or trust company is acting in any fiduciary capacity with like effect as personal service on the bank or trust company. The power of attorney is irrevocable so long as any liability remains outstanding against the bank or trust company in this state. Service of process under this section may be made in the manner provided in chapter 59-11.
Source: SL 1973, ch 292, § 2; SDCL, § 51-19-5.3; SL 1995, ch 268, § 69; SL 1997, ch 272, § 7; SL 2005, ch 202, § 22; SL 2021, ch 204, § 1.
51A-5-10. Establishment of place of business not permitted or prohibited by filing requirements.
The provisions of §§ 51A-5-7 to 51A-5-9, inclusive, may not be construed to prohibit, permit, or affect in any other way, the right of a bank or trust company, organized and doing business under the laws of any other state, territory, or district than South Dakota, including a national bank doing business in any other state, to establish in this state a place of business, branch office, or agency for the conduct of business as a fiduciary.
Source: SL 1973, ch 292, § 3; SDCL, § 51-19-5.4; SL 1995, ch 268, § 70; SL 1997, ch 272, § 8.
51A-5-11. Investment powers of trust company.
A bank exercising trust powers shall have the same investment powers as an individual fiduciary under like circumstances.
Source: SL 1969, ch 11, § 5.5; SL 1970, ch 265, § 38; SDCL, § 51-19-6.
51A-5-12. Voting of bank shares by cotrustee.
Shares of its own stock held by a bank and one or more persons as trustees may be voted on by such other person or persons, as trustees, in the same manner as if he or they were the sole trustee.
Source: SL 1970, ch 265, § 39; SDCL, § 51-19-6.1.
51A-5-13. Segregation of assets held by bank as fiduciary.
A bank holding any asset as fiduciary, shall:
(1) Segregate all such assets from any other assets of the bank and from the assets of other trusts, except as may be expressly provided otherwise by law or by the writing creating the trust.
(2) Record such assets in a separate set of books maintained for fiduciary activities.
Source: SL 1969, ch 11, § 5.6; SL 1975, ch 292, §§ 1, 2; SDCL, § 51-19-7.
51A-5-14. Deposit of federally guaranteed securities with federal reserve bank.
Any bank, when holding securities as custodian for a fiduciary may deposit, or arrange for the deposit, with the federal reserve bank in its district of any securities the principal and interest of which the United States or any department, agency, or instrumentality of the United States has agreed to pay, or has guaranteed payment, to be credited to one or more accounts on the books of the federal reserve bank in the name of the bank. Any account used for this purpose shall be designated as a fiduciary or safekeeping account, and other similar securities may be credited. A bank depositing securities with a federal reserve bank is subject to such rules and regulations with respect to the making and maintenance of such deposit, as, in the case of state chartered institutions, the commission, and, in the case of national banking associations, the comptroller of the currency, may from time to time issue.
Source: SDCL, § 51-19-7 as added by SL 1975, ch 292, § 1; SL 1988, ch 377, § 115; SDCL, § 51-19-7.1; SL 1995, ch 268, § 71; SL 1997, ch 272, § 9; SL 2021, ch 203, § 2.
51A-5-15. Records of depositor to show ownership of securities--Transfers by book entries.
The records of the bank must at all times show the ownership of the securities held in such account. Ownership of, and other interests in, the securities credited to such account may be transferred by entries on the books of the federal reserve bank without physical delivery of any securities.
Source: SDCL, § 51-19-7 as added by SL 1975, ch 292, § 1; SDCL, § 51-19-7.2; SL 1995, ch 268, § 72; SL 1997, ch 272, § 10; SL 2021, ch 203, § 3.
51A-5-16. Custodian to certify deposited securities to fiduciary--Duty of fiduciary.
A bank acting as custodian for a fiduciary shall, on demand by the fiduciary, certify in writing to the fiduciary the securities so deposited by the bank with the federal reserve bank for the account of the fiduciary. A fiduciary shall, on demand by any party to which it must account or on demand by the attorney for the party, certify in writing to the party the securities deposited by the fiduciary with the federal reserve bank for its account as the fiduciary.
Source: SDCL, § 51-19-7 as added by SL 1975, ch 292, § 1; SDCL, § 51-19-7.3; SL 1995, ch 268, § 73; SL 1997, ch 272, § 11; SL 2021, ch 203, § 4.
51A-5-17. Application of provisions to fiduciaries and custodians whenever appointed.
Sections 51A-5-14 to 51A-5-16, inclusive, shall apply to all fiduciaries, and custodians for fiduciaries, acting as of July 1, 1975, or who thereafter may act regardless of the date of the instrument or court order by which they are appointed.
Source: SDCL, § 51-19-7 as added by SL 1975, ch 292, § 2; SDCL, § 51-19-7.4.
51A-5-19. Oath or bond not required of bank to qualify as fiduciary.
No oath or bond shall be required of a bank to qualify upon appointment as a fiduciary unless the instrument creating a fiduciary position expressly provides otherwise.
Source: SL 1969, ch 11, § 5.8; SDCL, § 51-19-9.
51A-5-20. Nominees used by bank acting as fiduciary or cofiduciary.
Any bank, when acting as a fiduciary or a cofiduciary with others, or as an agent for other fiduciaries, may, with the consent of its cofiduciary or cofiduciaries, if any, who are hereby authorized to give such consent, or the fiduciaries for whom it is acting, cause any investment held in any such capacity to be registered and held in the name of a nominee or nominees of such bank. Such bank shall be liable for the acts of any such nominee with respect to any investment so registered. The records of such bank shall at all times show the trust for which any such investment is held and the securities shall be in the possession and control of such bank and be kept separate and apart from the assets of such bank.
Source: SL 1969, ch 11, § 5.9; SDCL, § 51-19-10.
51A-5-21. Deposit in clearing corporation of securities held as fiduciary or custodian.
Any fiduciary holding securities in its fiduciary capacity, any bank holding securities as a custodian or managing agent, and any bank holding securities as custodian for a fiduciary is authorized to deposit or arrange for the deposit of the securities in a clearing corporation as defined in subdivision 57A-8-102(5).
Source: SL 1978, ch 357, § 1; SDCL § 51-19-10.1; SL 1995, ch 268, § 74; SL 1997, ch 272, § 12; SL 2015, ch 239, § 5; SL 2021, ch 203, § 5.
51A-5-22. Ownership of stock in clearing corporation not required for deposit of securities by fiduciary or custodian.
Sections 51A-5-21 to 51A-5-24, inclusive, apply to any fiduciary holding securities in its fiduciary capacity, and to any bank holding securities as a custodian, managing agent or custodian for a fiduciary, regardless of the date of the agreement, instrument, or court order by which it is appointed and regardless of whether or not the fiduciary, custodian, managing agent, or custodian for a fiduciary owns capital stock of the clearing corporation.
Source: SL 1978, ch 357, § 4; SDCL, § 51-19-10.2; SL 2021, ch 203, § 6.
51A-5-23. Holding in bulk of securities deposited in clearing corporation--Merger of certificates.
Securities of the same class of the same issuer may be merged and held in bulk in the name of the nominee of such clearing corporation with any other such securities deposited in such clearing corporation by any person regardless of the ownership of such securities, and certificates of small denomination may be merged into one or more certificates of larger denomination.
Source: SL 1978, ch 357, § 2; SDCL, § 51-19-10.3.
51A-5-24. Records of securities deposited in clearing corporation--Transfer by book entry--Certification to interested party of securities held.
The records of the fiduciary and the records of the bank acting as custodian, as managing agent or as custodian for a fiduciary shall at all times show the name of the party for whose account the securities are so deposited. Title to the securities may be transferred by bookkeeping entry on the books of the clearing corporation without physical delivery of certificates representing the securities. A bank so depositing securities pursuant to § 51A-5-23 is subject to the rules as, in the case of state chartered institutions, the commission and, in the case of national banking associations, the comptroller of the currency may from time to time issue. A bank acting as custodian for a fiduciary shall, on demand by the fiduciary, certify in writing to the fiduciary the securities so deposited by the bank in the clearing corporation for the account of the fiduciary. A fiduciary shall, on demand by any party to a judicial proceeding for the settlement of the fiduciary's account or on demand by the attorney for the party, certify in writing to the party the securities deposited by the fiduciary in the clearing corporation for its account as the fiduciary.
Source: SL 1978, ch 357, § 3; SL 1988, ch 377, § 116; SDCL, 51-19-10.4; SL 1995, ch 268, § 75; SL 1997, ch 272, § 13; SL 2021, ch 203, § 7.
51A-5-25. Approval or ratification of acceptance or relinquishment of fiduciary accounts by board of directors or committee.
No bank shall accept or voluntarily relinquish a fiduciary account without the approval or ratification of the board of directors, or a committee of officers or directors designated by the board for that purpose, but the board or the committee may prescribe general rules governing acceptance or relinquishment of fiduciary accounts, and action taken by an officer in accordance with these rules is sufficient approval.
Source: SL 1969, ch 11, § 5.10; SDCL, § 51-19-11.
51A-5-26. Supervision of investment of fiduciary funds by committee designated by board of directors.
The board of directors shall designate one or more committees of not less than three qualified officers or directors to supervise the investment of fiduciary funds. No investment shall be made, retained, or disposed of without the approval of a committee. At least once each calendar year a committee shall review all assets of each fiduciary account and shall determine their current value, safety, and suitability and whether the investments should be modified or retained.
Source: SL 1969, ch 11, § 5.10; SDCL, § 51-19-12.
51A-5-27. Reports of committees designated to supervise fiduciary accounts.
The committees provided for in §§ 51A-5-25 and 51A-5-26 shall keep minutes of their meetings, and shall fully report to the board of directors at least once in each calendar quarter all action taken since their previous report.
Source: SL 1969, ch 11, § 5.10; SDCL, § 51-19-13.
51A-5-28. Repealed.
Source: SDCL, § 51-15-1(14); SL 1988, ch 377, § 1; SDCL, § 51-19-13.1; SL 1995, ch 268, § 76; SL 1997, ch 272, § 14; SL 2021, ch 203, § 8.
51A-5-29. Repealed.
Source: SL 1984, ch 314, § 2; SL 1988, ch 377, § 117; SDCL, § 51-19-14; SL 1995, ch 268, § 77; SL 1997, ch 272, § 15; SL 2021, ch 203, § 9.
51A-5-30. Repealed.
Source: SL 1984, ch 314, § 3; SDCL, § 51-19-15; SL 1995, ch 268, § 78; SL 1997, ch 272, § 16; SL 2021, ch 203, § 10.
51A-5-31. Repealed.
Source: SL 1984, ch 314, § 4; SL 1988, ch 377, § 118; SDCL, § 51-19-16; SL 1993, ch 213, § 249; SL 2021, ch 203, § 11.
51A-5-32. Repealed.
Source: SL 1984, ch 314, § 5; SDCL, § 51-19-17; SL 1993, ch 213, § 250; SL 2021, ch 203, § 12.
CHAPTER 51A-6
TRUST COMPANIES [REPEALED AND TRANSFERRED]
51A-6-1 Repealed
51A-6-2 Repealed
51A-6-3 51A-6-3. Repealed by SL 1994, ch 364, § 4.
51A-6-4 Repealed
51A-6-5 Repealed
51A-6-6 Repealed
51A-6-7 51A-6-7. Repealed by SL 1994, ch 364, § 7.
51A-6-8 51A-6-8 to 51A-6-11. Repealed by SL 1995, ch 268, §§ 80 to 83.
51A-6-12 Repealed
51A-6-13 51A-6-13. Repealed by SL 1995, ch 268, § 84.
51A-6-14 Repealed
51A-6-15 Repealed
51A-6-16 Repealed
51A-6-17 Repealed
51A-6-18 Repealed
51A-6-19 Repealed
51A-6-20 Repealed
51A-6-21 Repealed
51A-6-22 Repealed
51A-6-1. Repealed.
Source: SL 1976, ch 304, § 1 (1), (4), (5); SDCL, § 51-19A-1; SL 2021, ch 203, § 13.
51A-6-2. Repealed.
Source: SL 1976, ch 304, § 2 (1); SDCL, § 51-19A-2; SL 1994, ch 364, § 3; SL 2021, ch 203, § 14.
51A-6-4. Repealed.
Source: SL 1976, ch 304, §§ 2, 4; SDCL, § 51-19A-4; SL 1994, ch 364, § 5; SL 1995, ch 268, § 78A; SL 2021, ch 203, § 15.
51A-6-5. Repealed.
Source: SL 1976, ch 304, §§ 2, 4; SDCL, § 51-19A-5; SL 1994, ch 364, § 6; SL 2021, ch 203, § 16.
51A-6-6. Repealed.
Source: SL 1976, ch 304, § 3; SDCL, § 51-19A-6; SL 1995, ch 268, § 78B; SL 2021, ch 203, § 17.
51A-6-12. Repealed.
Source: SL 1976, ch 304, § 6; SDCL, § 51-19A-12; SL 1995, ch 268, § 79; SL 2021, ch 203, § 18.
51A-6-14. Repealed.
Source: SL 1976, ch 304, § 1 (3); SDCL, § 51-19A-14; SL 1995, ch 167, § 187; SL 2021, ch 203, § 19.
51A-6-15. Repealed.
Source: SL 1976, ch 304, § 9; SL 1988, ch 377, § 122; SDCL, § 51-19A-15; SL 2021, ch 203, § 20.
51A-6-16. Repealed.
Source: SL 1976, ch 304, § 9; SL 1984, ch 315; SL 1988, ch 377, § 123; SDCL § 51-19A-16; SL 2008, ch 258, § 2; SL 2021, ch 203, § 21.
51A-6-20. Repealed.
Source: SL 1986, ch 401, § 1; SL 1988, ch 377, § 124; SDCL, § 51-19A-20; SL 2021, ch 203, § 25.
51A-6-21. Repealed.
Source: SL 1986, ch 401, § 2; SDCL § 51-19A-21; SL 1993, ch 213, § 251; SL 2021, ch 203, § 26.
CHAPTER 51A-6A
CREATION OF TRUST COMPANIES
51A-6A-1 Definitions.
51A-6A-2 Confidential information.
51A-6A-3 "Community" defined.
51A-6A-4 Application for incorporation--Approval procedure--Emergency procedure.
51A-6A-5 Considerations in ruling on application-Proceedings on application.
51A-6A-5.1 Notice to division of material omission in application or change in facts reported in application.
51A-6A-6 Application fee.
51A-6A-6.1 51A-6A-6.1. Repealed by SL 1998, ch 282, § 34.
51A-6A-7 Organization of public and private trust companies--Submission and approval of articles--Required information.
51A-6A-7.1 Corporation laws applied.
51A-6A-8 Amendment of articles--Extension of existence.
51A-6A-9 Starting date of trust company existence--Commencement of business.
51A-6A-10 Statement of payment of capital--Certificate of organization.
51A-6A-11 Authority to transact business required--Violation as misdemeanor.
51A-6A-11.1 Public trust companies to maintain office and perform trust administration in South Dakota.
51A-6A-11.2 Office space requirements.
51A-6A-11.3 Approval of other office space requirements.
51A-6A-12 List of owners--Annual submission to director--Verification of list.
51A-6A-13 Governing board--Membership--Election--Vacancies.
51A-6A-14 Officers of governing board--Bond required.
51A-6A-15 Meetings of governing board--Examination and audit of books and records.
51A-6A-16 Oath of board members.
51A-6A-17 Persons convicted of certain crimes ineligible to serve as board member, officer, or key employee--Civil penalty--Criminal background investigation.
51A-6A-18 51A-6A-18. Repealed by SL 2002, ch 220, § 1.
51A-6A-19 Determining capital--Minimum--Purpose of capital--Fidelity bond and liability insurance policy.
51A-6A-19.1 Additional capital requirements--Safety and soundness factors to be considered--Effective date of order--Hearing.
51A-6A-19.2 Investments pledged to division for security of trust creditors of trust company--Amount--Income from investments--Pledge increase--Hearing.
51A-6A-19.3 Pledge available to satisfy claims upon liquidation, abandonment of trust powers, or resignation.
51A-6A-20 Payment of subscriptions--Reduction of common stock.
51A-6A-21 Transferring stock and ownership units.
51A-6A-22 Increasing capital stock or ownership units.
51A-6A-23 Registration of capital stock or ownership units.
51A-6A-24 Issuance and retirement of preferred stock.
51A-6A-25 Rights and liability of preferred stockholders--Dividends.
51A-6A-26 Issuance of convertible or nonconvertible capital notes or debentures.
51A-6A-27 Dividends not permitted from required capital.
51A-6A-28 Dividends from undivided profits or surplus.
51A-6A-29 Powers of trust company.
51A-6A-29.1 Permissible business of trust companies.
51A-6A-30 Retention of records--Promulgation of rules--Reproduction of records--Duty of confidentiality.
51A-6A-31 Periodic examination of trust company--Report of examination--Cooperative, coordinating and information-sharing agreements among agencies.
51A-6A-32 Examination of fiduciary affairs of officers or employees--Examination of affiliated companies or corporations.
51A-6A-33 Examination expenses paid by trust companies--Fees.
51A-6A-34 Annual report of trust company to director--Form of report--Request for additional reports.
51A-6A-35 Authority of trust company revoked upon obstruction or interference with, or refusal to submit to, examination of director.
51A-6A-36 Service of notice of charges--Contents of notice--Temporary cease and desist order.
51A-6A-37 Revocation of franchise for failure to comply with lawful requirements.
51A-6A-38 Hearing on revocation of trust authority.
51A-6A-39 Confidentiality of information generated by examination--Disclosure--Hearing.
51A-6A-40 Correction of unsafe or unsound condition or operation--Appointment of special assistant--Appeal of appointment.
51A-6A-41 Insolvency defined.
51A-6A-42 Director to take charge of insolvent trust company--Appointment of special assistant.
51A-6A-43 Plan for reorganization of insolvent trust company.
51A-6A-44 Appointment of receiver--Bond--Qualifications--Report--Removal.
51A-6A-45 Powers and duties of receiver--Order of payment of liabilities.
51A-6A-45.1 Liability of receiver.
51A-6A-46 Periodic examination of trust company in the hands of a receiver.
51A-6A-46.1 Suspension, liquidation, order against unsound practice, removal of director or officer, or injunction.
51A-6A-46.2 Disclosure of confidential information in certain actions.
51A-6A-47 Acquisition of trust company--Notice to director--Approval--Order of disapproval--Hearing.
51A-6A-48 Contents of notice of proposed acquisition.
51A-6A-49 Reason for disapproval of acquisition.
51A-6A-50 Procedure for merger, consolidation, conversion, or transfer of assets and liabilities to another bank or trust company.
51A-6A-50.1 Proceedings to legally dissolve charter of acquired, merged, or consolidated trust company.
51A-6A-51 Necessity of execution or delivery of deed for merger or consolidation.
51A-6A-52 Fiduciary capacity of successor trust company.
51A-6A-53 Name of trust company--Name change.
51A-6A-54 Approval required for changing place of business--Examination and investigation by director.
51A-6A-55 51A-6A-55 to 51A-6A-57. Repealed by SL 2013, ch 239, §§ 8 to 10.
51A-6A-58 Establishment of trust service offices--Application.
51A-6A-59 51A-6A-59, 51A-6A-60. Repealed by SL 2008, ch 258, §§ 12, 13.
51A-6A-61 Membership in federal reserve bank.
51A-6A-62 Depositing securities into federal reserve bank.
51A-6A-63 Registering investments in name of nominee--Liability of trust company.
51A-6A-64 Common trust funds and collective investment funds.
51A-6A-65 Repealed
51A-6A-66 Exclusion of entity from chapters 51A-5 and 51A-6A--Governing documents--Notice to director.
51A-6A-67 Trust company receivership and liquidation captive insurance company fund.
51A-6A-1
Definitions.
51A-6A-2
Confidential information.
51A-6A-3
"Community" defined.
51A-6A-4
Application for incorporation--Approval procedure--Emergency procedure.
51A-6A-5
Considerations in ruling on application-Proceedings on application.
51A-6A-5.1
Notice to division of material omission in application or change in facts reported in
application.
51A-6A-6
Application fee.
51A-6A-6.1
Repealed.
51A-6A-7
Organization of public and private trust companies--Submission and approval of
articles--Required information.
51A-6A-8
Amendment of articles--Extension of existence.
51A-6A-9
Starting date of trust company existence--Commencement of business.
51A-6A-10
Statement of payment of capital--Certificate of organization.
51A-6A-11
Authority to transact business required--Violation as misdemeanor.
51A-6A-11.1
Public trust companies to maintain office and perform trust administration in South
Dakota.
51A-6A-11.2
Office space requirements.
51A-6A-11.3
Approval of other office space requirements.
51A-6A-12
List of owners--Annual submission to director--Verification of list.
51A-6A-13
Governing board--Membership--Election--Vacancies.
51A-6A-14
Officers of governing board--Bond required.
51A-6A-15
Meetings of governing board--Examination and audit of books and records.
51A-6A-16
Oath of board members.
51A-6A-17
Persons convicted of certain crimes ineligible to serve as board member, officer, or
key employee--Civil penalty--Criminal background investigation.
51A-6A-18
Repealed.
51A-6A-19
Determining capital--Minimum--Purpose of capital--Fidelity bond and liability
insurance policy.
51A-6A-19.1
Additional capital requirements--Safety and soundness factors to be considered--Effective date of order--Hearing.
51A-6A-19.2
Investments pledged to division for security of trust creditors of trust
company--Amount--Income from investments--Pledge increase--Hearing.
51A-6A-19.3
Pledge available to satisfy claims upon liquidation, abandonment of trust powers, or
resignation.
51A-6A-20
Payment of subscriptions--Reduction of common stock.
51A-6A-21
Transferring stock and ownership units.
51A-6A-22
Increasing capital stock or ownership units.
51A-6A-23
Registration of capital stock or ownership units.
51A-6A-24
Issuance and retirement of preferred stock.
51A-6A-25
Rights and liability of preferred stockholders--Dividends.
51A-6A-26
Issuance of convertible or nonconvertible capital notes or debentures.
51A-6A-27
Dividends not permitted from required capital.
51A-6A-28
Dividends from undivided profits or surplus.
51A-6A-29
Powers of trust company.
51A-6A-30
Retention of records--Promulgation of rules--Reproduction of records--Duty of
confidentiality.
51A-6A-1. Definitions.
Terms used in this chapter mean:
(1) "Articles," in the case of a corporation, articles of incorporation; in the case of a limited liability company, articles of organization;
(2) "Board member," in the case of a corporation, a director; in the case of a limited liability company, a member of the board of managers if manager-managed or board of members if member-managed;
(3) "Client," an individual, corporation, association, or other legal entity receiving or benefitting from fiduciary services provided by a trust company or bank;
(4) "Commission," the State Banking Commission;
(5) "Control," the power, directly or indirectly, to direct the management or policies of a trust company or to vote twenty-five percent or more of any class of voting shares of a trust company;
(6) "Director," the director of the Division of Banking;
(7) "Fiduciary for hire," acting as an administrator, conservator, custodian, executor, guardian, personal representative, or trustee, for any person, trust, or estate for compensation or gain or in anticipation of compensation or gain;
(8) "Financial institution," any bank, national banking association, savings and loan association, or savings bank which has its principal place of business in this state but which does not have trust powers, or which has trust powers, but does not exercise those trust powers;
(9) "Governing board," in the case of a corporation, the board of directors; in the case of a limited liability company, the board of managers if manager-managed or board of members if member-managed;
(10) "Out-of-state trust institution," a nondepository corporation, limited liability company, or other similar entity chartered or licensed by the banking regulatory agency of a state, territory, or district, other than South Dakota, to engage in the trust company business in that state, territory, or district under the primary supervision of such regulator;
(11) "Owner," in the case of a corporation, a common stockholder; in the case of a limited liability company, a person who owns ownership units;
(12) "Person," an individual or a corporation, partnership, trust, association, joint venture, pool, syndicate, sole proprietorship, or any other form of an entity;
(12A) "Public trust company," a trust company that engages in trust company business with the general public by advertising, solicitation, or other means, or a trust company that engages in trust company business but does not fall within the definition of a private trust company established by the commission through rules promulgated pursuant to chapter 1-26. The commission shall consider the size, number of clients served and the family and other relationships among the clients served, complexity, and related safety and soundness issues as it establishes in rule a definition for the term private trust company;
(13) "Trust company," a nondepository trust company incorporated or organized under the laws of this state engaged in the trust company business;
(14) "Trust company business," engaging in, or representing or offering to engage in, the business of acting as a fiduciary for hire, except that no accountant, attorney, credit union, insurance broker, insurance company, investment advisor, real estate broker or sales agent, savings and loan association, savings bank, securities broker or dealer, real estate title insurance company, or real estate escrow company may be deemed to be engaged in a trust company business with respect to fiduciary services customarily performed by them for compensation as a traditional incident to their regular business activities. Trust company business as defined in this chapter does not constitute banking as defined in subdivision 51A-1-2(4);
(15) "Trust service office," any office, agency, or other place of business at which the powers granted to trust companies are exercised either by a trust company other than the place of business specified in a trust company's certificate of authority or within this state by an out-of-state trust institution.
Source: SL 1995, ch 268, § 1; SL 2005, ch 260, §§ 12, 13; SL 2010, ch 232, §§ 16, 17; SL 2013, ch 239, § 7; SL 2015, ch 240, § 1; SL 2016, ch 231, § 1; SL 2017, ch 204, § 1.
51A-6A-2. Confidential information.
For the purposes of this chapter, confidential information includes the names of stockholders or owners, names and addresses of the members of a private trust company's governing board, ownership information, capital contributions, addresses, business affiliations, state and commission findings through any examination or inquiry of any kind, and any information required to be reported or filed with the director or the commission, and any information or agreement relating to any merger, consolidation, or transfer.
Source: SL 1995, ch 268, § 1A; SL 2015, ch 240, § 2; SL 2016, ch 231, § 2.
51A-6A-3. "Community" defined.
For the purposes of this chapter, community shall be broadly construed and shall include geographic or market based parameters, or both.
Source: SL 1995, ch 268, § 1B.
51A-6A-4. Application for incorporation--Approval procedure--Emergency procedure.
No trust company may be incorporated or organized under the laws of this state or transact trust company business in this state until the application for its incorporation or organization and application or authority to do business and the location of its principal office have been submitted to and approved under the same procedure for bank applications as provided in § 51A-2-16, except that conditions for considering an application involving a trust company shall be as set forth in § 51A-6A-5. The director shall prescribe the form for making an application and any application submitted shall contain such information as required. The applicant may, with approval of the director, designate confidential information. Any costs associated with the public notice required in § 51A-2-16 shall be paid by the applicant, in addition to the application fee required in § 51A-6A-6.
If upon the dissolution or insolvency of any trust company, it is the opinion of the director that by reason of the loss of services in the community, an emergency exists which may result in serious inconvenience or losses to customers or it is in the public interest of the community, the director may accept and approve an application for incorporation or organization and an application for authority to do business without prior notice. Upon approval of an application by the director for authority to do business of a successor trust company, the director may call a special meeting of the commission and submit the application to the commission for its review and confirmation.
Source: SL 1995, ch 268, § 2; SL 2006, ch 243, § 3; SL 2008, ch 258, § 3; SL 2017, ch 204, § 2.
51A-6A-5. Considerations in ruling on application-Proceedings on application.
In ruling on an application required under this chapter, the director or the commission, as the case may be, shall consider the following:
(1) The financial standing, general business experience, and character of the organizers or incorporators of the applicant;
(2) The character, qualifications, and experience of the officers of the applicant;
(3) The applicant's ability to serve the community or clients as described in the application; and
(4) The prospects for success of the proposed trust company.
In any hearing on the application before the commission, the director shall submit to the commission for its consideration the director's findings with respect to the above conditions together with all other pertinent information in the director's possession. If the director or the commission, as the case may be, determines any of these conditions unfavorable to the applicant, then the application shall be disapproved, but if not, then the application shall be approved. Any proceeding before the commission on an application shall be held in conformance with chapter 1-26.
Source: SL 1995, ch 268, § 3; SL 2008, ch 258, § 4.
51A-6A-5.1. Notice to division of material omission in application or change in facts reported in application.
Any trust company shall immediately notify the division of any material omission from the application or any material change in the facts reported in an application, either of which could have led to an unfavorable finding with respect to the criteria established in § 51A-6A-5. Failure to so notify the division of the material omission from the application or the existence of the material change in facts as reported in the application, either of which could have led to an unfavorable finding with respect to the criteria established in § 51A-6A-5, may subject the trust company to revocation proceedings or other regulatory action as provided in this title. The director shall give notice of the revocation or other regulatory action to the president or other managing officer of the trust company, and any revocation action shall thereupon proceed according to § 51A-6A-38.
Source: SL 2013, ch 239, § 5.
51A-6A-6. Application fee.
All applications for charters under this chapter shall include a five thousand dollar application fee which is nonrefundable. This fee shall be remitted by the Division of Banking to the state general fund.
Source: SL 1995, ch 268, § 4; SL 1998, ch 282, § 33.
51A-6A-7. Organization of public and private trust companies--Submission and approval of articles--Required information.
Any three or more persons may organize a public trust company and make and file articles as provided by the laws of this state. Any one or more persons may organize a private trust company and make and file articles as provided by the laws of this state. No trust company may be organized or incorporated to engage in business as such until the articles have been submitted and approved in accordance with § 51A-6A-4. The name selected for the trust company shall include the word, trust, and may not be the name of any other trust company doing business in the state. The director shall accept or reject the name. However, the approval of a trust company name by the director may not supersede any person's rights pursuant to state or federal trademark law. The articles, in addition to any other information required by law, shall state:
(1) That the corporation or limited liability company is formed for the purpose of engaging in the trust company business; and
(2) The period for which such corporation or limited liability company is organized, which may be perpetual.
The articles may contain any other provisions as are consistent with law. The articles shall be subscribed by one or more of the organizers of the proposed trust company and shall be acknowledged by them. The full amount of the capital required by § 51A-6A-19 shall be subscribed before the articles are filed.
Source: SL 1995, ch 268, § 5; SL 2008, ch 258, § 5; SL 2011, ch 212, § 38; SL 2016, ch 231, § 3; SL 2017, ch 204, § 3.
51A-6A-7.1. Corporation laws applied.
All provisions of law applicable to a corporation and a limited liability company are applicable to a trust company, except where inconsistent with this chapter and the provisions of this title, in which case this chapter and the provisions of this title govern.
Source: SL 2021, ch 203, § 29.
51A-6A-8. Amendment of articles--Extension of existence.
Prior to the expiration of the period for which it was incorporated or organized a trust company may, with the approval of at least a majority of the capital stock or ownership units of such trust company, amend its articles to extend its existence for an additional period, which may be perpetual.
Source: SL 1995, ch 268, § 5A; SL 2011, ch 212, § 39.
51A-6A-9. Starting date of trust company existence--Commencement of business.
The existence of any trust company shall date from the filing of its articles from which time it shall have and may exercise the incidental powers conferred by law upon corporations or limited liability companies, as applicable. However, no trust company may transact any business except the election of officers, the taking and approving of their official bonds, the receipts of payment upon stock subscriptions, and other business incidental to its organization, until it has secured the required approval and the authorization of the director to commence business.
Source: SL 1995, ch 268, § 6; SL 2008, ch 258, § 6.
51A-6A-10. Statement of payment of capital--Certificate of organization.
When the capital of any trust company is paid in, the president or cashier shall transmit to the director a verified statement showing the names and addresses of all owners, the amount of stock or units each subscribed, and the amount paid in by each. The director shall review each trust company as to the amount of money paid in for capital and surplus, by whom the amounts were paid, the amount of capital stock or units owned in good faith by each owner, and whether the trust company has complied with the law. If the director determines that the trust company has been organized as required by law, has complied with the law, and has secured the required approval, the director shall issue a certificate stating that the trust company has been organized and its capital paid in as required by law, and that the trust company is authorized to transact trust business.
Source: SL 1995, ch 268, § 7; SL 2008, ch 258, § 7; SL 2019, ch 205, § 1.
51A-6A-11. Authority to transact business required--Violation as misdemeanor.
No individual, firm, or corporation may advertise, publish, or otherwise promulgate that they are engaged in the trust company business, or transact trust company business, without having first obtained authority from the director. Any individual or member of any firm or officer of any corporation violating this section shall be guilty of an unclassified misdemeanor, and upon conviction shall be punished by a fine not exceeding five thousand dollars.
Source: SL 1995, ch 268, § 8.
51A-6A-11.1. Public trust companies to maintain office and perform trust administration in South Dakota.
A public trust company shall:
(1) Maintain office space in South Dakota for trust company business and for the storage of, and access to, trust company records required by § 51A-6A-30;
(2) Hold no less than two quarterly governing board meetings with a majority physically present in South Dakota each calendar year;
(3) Employ, engage, or contract with at least one trust officer or key employee to provide services for the trust company in South Dakota related to the powers of the company in § 51A-6A-29 and to facilitate the examinations required by § 51A-6A-31; and
(4) Perform trust administration in South Dakota.
The commission may promulgate rules, pursuant to chapter 1-26, to establish additional guidelines regarding what constitutes trust administration in South Dakota for purposes of this section.
Source: SL 2010, ch 232, § 18; SL 2012, ch 233, § 2; SL 2015, ch 240, § 3; SL 2016, ch 231, § 4.
51A-6A-11.2. Office space requirements.
For purposes of § 51A-6A-11.1, office space in South Dakota for each public trust company shall:
(1) Be in premises distinct and divided from the office space of any other entity;
(2) Have the name, charter, and certificate of authority of the trust company prominently displayed;
(3) Have access to premises in or adjacent to the office space sufficient to facilitate onsite examinations by the division;
(4) To the extent the trust company maintains hard copies of any documents required to be maintained pursuant to § 51A-6A-30, have a secure fireproof file cabinet that contains all such hard copies; and
(5) To the extent the trust company maintains any record electronically, have a secure computer terminal or other secure electronic device that provides access to such records, including account information, as necessary to facilitate an efficient and effective examination.
For public trust companies chartered in South Dakota prior to July 1, 2016, the division shall determine full compliance with the provisions of this section at the first regular examination after June 30, 2018.
Source: SL 2016, ch 231, § 5.
51A-6A-11.3. Approval of other office space requirements.
Upon application by a trust company, the director may approve office space that does not meet the requirements of § 51A-6A-11.2 if the director determines the nature and degree of risks presented by the trust company are low based upon a review of the size, nature, and number of accounts administered by the trust company, the structure and business plan of the trust company approved by the division, and the number of employees or persons performing services for the trust company in South Dakota.
If the size, risk profile, or rate of growth of a trust company changes, or if a trust company's office space is insufficient to facilitate onsite examinations by the division, the director may impose additional office space requirements.
Source: SL 2016, ch 231, § 6.
51A-6A-12. List of owners--Annual submission to director--Verification of list.
Every trust company shall keep a full and correct list of names and addresses of all of its owners and the number of shares owned by each. This list of owners shall be kept and maintained in the office where its business is transacted, and during the business hours of the trust company, the list is subject to the inspection of all owners. The president or cashier of any trust company shall submit to the director on or before the thirty-first day of January of each year a list of owners as of the first day of the calendar year. The president or cashier shall verify the correctness of the list under oath.
Source: SL 1995, ch 268, § 9.
51A-6A-13. Governing board--Membership--Election--Vacancies.
The business of any trust company shall be managed and controlled by its governing board and includes the authority to provide for bonus payments, in addition to ordinary compensation, for any of its officers and employees. The governing board of a private trust company shall consist of not less than three nor more than twelve members, all of whom shall be elected by the owners of the trust company at any regular annual meeting, with terms not to exceed three years. The governing board of a public trust company shall consist of not less than five nor more than twelve members, all of whom shall be elected by the owners of the trust company at any regular meeting held during each calendar year. If the number of board members elected is less than twelve, the number of board members may be increased so long as the total number does not exceed twelve. If the number is increased, the first additional board members may be elected at a special meeting of the owners. The board members shall be elected and any vacancies filled in the manner as provided in the provisions regarding general corporations or limited liability companies, as applicable. At all times one of the directors shall be a resident of this state and at least one-half of the directors shall be citizens of the United States. Any board member of any trust company who becomes indebted to the trust company on any judgment forfeits the position of board member, and the vacancy shall be filled as provided by law.
Source: SL 1995, ch 268, § 10; SL 1998, ch 282, § 32; SL 2006, ch 243, § 11; SL 2007, ch 276, § 1; SL 2009, ch 252, § 1; SL 2011, ch 212, § 11; SL 2015, ch 240, § 4.
51A-6A-14. Officers of governing board--Bond required.
The governing board may elect a chairperson, a president, one or more vice presidents, a secretary, and a cashier. The office of president and cashier may not be filled by the same person. The officers shall hold their offices for a term not to exceed one year and until their successors are elected and qualified. The governing board shall require all officers and employees having the care or handling of the funds of the trust company to give a good and sufficient bond to be executed by an approved corporate surety authorized to do business in this state. The amount and form of the bond shall be approved by the governing board and the director, and it shall be held by the director. The costs of the bonds shall be paid by the trust company. Any officer who becomes indebted to the trust company on any judgment shall forfeit the office and the governing board shall fill the vacancy.
Source: SL 1995, ch 268, § 11.
51A-6A-15. Meetings of governing board--Examination and audit of books and records.
The governing board shall hold at least four regular meetings each year, at least one of which shall be held during each calendar quarter. Unless otherwise provided in the trust company's organizational documents, the governing board or an authorized committee may conduct, or permit any member to participate in, a regular or special meeting through the use of any means of communication by which all members participating may simultaneously hear each other during the meeting. A member participating in a meeting by this means is considered present in person at the meeting. The governing board or an auditor selected by them shall make a thorough examination of the books, records, funds, and securities held by the trust company at each of the quarterly meetings. The result of the examination shall be recorded in detail. If the governing board selects an auditor, the auditor's findings shall be reported directly to the governing board. In lieu of the required four quarterly examinations, the governing board may accept one annual audit by a certified public accountant or an independent auditor approved by the director.
The provisions of this section do not alter, amend, or change the requirement of a public trust company to hold no less than two quarterly governing board meetings with a majority physically present in South Dakota each calendar year pursuant to § 51A-6A-11.1.
Source: SL 1995, ch 268, § 12; SL 2016, ch 231, § 7.
51A-6A-16. Oath of board members.
Each board member shall take and subscribe an oath that the member will administer the affairs of the trust company diligently and honestly and that the member will not knowingly or willfully permit any of the laws relating to trust companies to be violated.
Source: SL 1995, ch 268, § 14.
51A-6A-17. Persons convicted of certain crimes ineligible to serve as board member, officer, or key employee--Civil penalty--Criminal background investigation.
Except with the written consent of the director, no person may serve as a board member, officer, or key employee of a trust company who has been convicted of any felony or any crime involving fraud, dishonesty, or a breach of trust. Any trust company who willfully violates this prohibition is subject to a civil penalty of one thousand dollars for each day the violation continues. A civil penalty imposed pursuant to this section for a single violation may not exceed fifty thousand dollars. Any civil penalty imposed by the director under this section is subject to review by the commission in accordance with chapter 1-26.
As part of any application to obtain authority to transact business as a private trust company, the applicant shall obtain and provide for each proposed incorporator, organizer, board member, manager, officer, and key employee of the proposed company, as applicable, the results of an independent criminal background investigation acceptable to the director, and independent credit report from a consumer reporting agency as described in 15 U.S.C. 1681a(p) as of January 1, 2010, and a report of ongoing or pending litigation.
As part of any application to obtain authority to transact trust company business as a public trust company, each proposed incorporator, organizer, board member, manager, officer, and key employee, as applicable, shall submit to a state and federal criminal background investigation by means of fingerprint checks by the Division of Criminal Investigation and the Federal Bureau of Investigation. Upon application, the division shall submit completed fingerprint cards to the Division of Criminal Investigation for purposes of conducting both the state and federal criminal background investigation. Upon completion of the criminal background check, the Division of Criminal Investigation shall forward to the division all information obtained as a result of the criminal background investigation. For any person described above who is not a citizen of the United States, the director may conduct an international background investigation or require the applicant or person to obtain and provide the results of an international background investigation acceptable to the director. The applicant shall also obtain and provide the results of an independent credit report from a consumer reporting agency as described in 15 U.S.C. 1681a(p) as of January 1, 2010, and a report of ongoing or pending litigation for each person as described above.
Prior to beginning employment with any trust company, each potential director, manager, member, officer, or key employee shall undergo the same investigation process as required above for new applicants. At the discretion of the director, any person subject to the requirements of this section may enter into service on a temporary basis pending receipt of results from the criminal background investigation. For purposes of this section, a key employee does not include an employee whose primary responsibilities are limited to clerical or support duties, and officer does not include any person who is not involved in the ongoing policy making or management of the trust company.
Any trust company shall immediately notify the division of any material change in the background of any person subject to the background investigation process as described above.
The division may require a fingerprint-based state, federal, and international criminal background investigation, as applicable, for any director, officer, or employee, who is the subject of an investigation by the division. Failure to submit to or cooperate with the criminal background investigation is grounds for the denial of an application or may result in the revocation of a trust company's authority to transact trust company business.
The applicant or trust company, as the case may be, shall pay any fees or costs associated with the fingerprinting, background investigations, or reports required by this section. A person who has undergone a state, federal, or international background investigation required by this section, may, at the discretion of the director, be allowed to fulfill this requirement for future trust company employment by sworn affidavit stating that there have been no material changes to the person's background.
Source: SL 1995, ch 268, § 15; SL 2010, ch 232, § 19; SL 2012, ch 252, § 16; SL 2013, ch 239, § 1.
51A-6A-19. Determining capital--Minimum--Purpose of capital--Fidelity bond and liability insurance policy.
For purposes of this section, the capital of a trust company is the total of the aggregate par value of its outstanding shares of capital stock or ownership units, its surplus, and its undivided profits. The minimum capital of a trust company is two hundred thousand dollars. The director may require that the trust company have more capital than the amount specified if the director determines that the amount and character of the anticipated business of the trust company and the safety of the customers so require. This chapter recognizes that capital for a trust company serves a different purpose than does capital for a bank. It is not intended that capital requirements for trust companies be judged by the same standards as banks. Basic protection for fiduciary clients of a trust company shall be provided by the purchase of a fidelity bond and a director's and officer's liability insurance policy. The bond and insurance shall be in an amount of not less than one million dollars each. The trust company shall give notice of cancellation or nonrenewal of the bond or insurance policy to the director within ten days of the receipt of cancellation or nonrenewal. Except as may be provided elsewhere in this chapter, no trust company may reduce voluntarily its capital stock or ownership units or surplus below the amount required in this section.
Source: SL 1995, ch 268, § 17; SL 2002, ch 220, § 2; SL 2006, ch 243, § 2; SL 2008, ch 258, § 8; SL 2013, ch 239, § 3.
51A-6A-19.1. Additional capital requirements--Safety and soundness factors to be considered--Effective date of order--Hearing.
The director may require additional capital for an existing trust company if the director finds the condition and operations of an existing trust company requires additional capital consistent with the safety and soundness of the trust company. The safety and soundness factors to be considered by the director in the exercise of such discretion include:
(1) The nature and type of business conducted;
(2) The nature and degree of liquidity in assets held in a corporate capacity;
(3) The amount of fiduciary assets under management or administration;
(4) The type of fiduciary assets held and the depository of such assets;
(5) The complexity of fiduciary duties and degree of discretion undertaken;
(6) The competence and experience of management;
(7) The extent and adequacy of internal controls;
(8) The presence or absence of annual unqualified audits by an independent certified public accountant;
(9) The reasonableness of business plans for retaining or acquiring additional capital;
(10) The existence and adequacy of insurance obtained or held by the trust company for the purpose of protecting its clients, beneficiaries, and grantors; and
(11) Any other factor deemed relevant by the director.
The proposed effective date of an order requiring an existing trust company to increase its capital must be stated in the order as on or after the thirty-first day after the date of the proposed order. Unless the trust company requests a hearing before the commission in writing before the effective date of the proposed order, the order becomes effective and is final. Any hearing before the commission shall be held pursuant to chapter 1-26.
Source: SL 2010, ch 232, § 20.
51A-6A-19.2. Investments pledged to division for security of trust creditors of trust company--Amount--Income from investments--Pledge increase--Hearing.
Before any trust company authorized by this title transacts any trust company business, the trust company shall pledge to the division, and maintain at all times, investments for the security of the trust creditors of the trust company, including as a priority claim costs incurred by the division in a receivership or liquidation of the trust company if the trust company should fail. The director shall determine the amount of the pledge in an amount deemed appropriate to defray the costs incurred by the division in a receivership or liquidation of the trust company, but the amount of the pledge may not be less than a market value of one hundred thousand dollars, nor exceed five hundred thousand dollars for a private trust company or one million dollars for a public trust company. Notwithstanding the maximum pledge amount allowed under this section, the director may require a public trust company to maintain a pledge of greater than one million dollars if the director finds that an increased pledge amount is required based upon consideration of the factors in § 51A-6A-19.1. The director may authorize a reduction of any previously established pledge, provided that no pledge may be less than a market value of one hundred thousand dollars. All investments pledged to the division shall be held at a depository institution in this state and all costs associated with pledging and holding the investments are the responsibility of the trust company.
The investments pledged to the division shall be of the same nature and quality as those required for public funds under §§ 4-5-6, 4-5-6.1, and 4-5-6.2.
The commission may promulgate rules, pursuant to chapter 1-26, to establish additional investment guidelines or investment options for purposes of the pledge required by this section.
In the event of a receivership of a trust company, the director may, without regard to priorities, preferences, or adverse claims, reduce the pledged investments to cash and, as soon as practicable, utilize the cash to defray the costs associated with the receivership.
Income from the investments pledged shall belong to and be paid to the trust company so long as the trust company continues to conduct its business in the ordinary course and so long as authorized by the director.
If the director requires a trust company to increase its pledge, the director shall provide the trust company with notice and an order setting forth the amount of the pledge. The proposed effective date of the order setting forth the amount of the pledge shall be stated in the order as on or after the thirty-first day after the date of the order. Unless the trust company requests a hearing before the commission in writing before the proposed effective date of the order, the order is effective and final on the proposed effective date. Any hearing before the commission shall be held pursuant to chapter 1-26.
Source: SL 2010, ch 232, § 21; SL 2012, ch 233, § 1; SL 2015, ch 240, § 5; SL 2019, ch 205, § 2.
51A-6A-19.3. Pledge available to satisfy claims upon liquidation, abandonment of trust powers, or resignation.
Upon liquidation, abandonment of trust powers, or resignation from all duties exercised pursuant to § 51A-6A-29, the pledge required by § 51A-6A-19. 2 shall be made available for the reasonable satisfaction of claims involving trust company accounts. Any surplus remaining after the satisfaction of all such claims and costs incurred by the division shall be returned to the trust company. Unless the division has reason to believe that claims are forthcoming, the division shall release any pledge no later than twelve months from the date all affected accounts are moved to a successor trustee, custodian, or administrator.
Source: SL 2013, ch 239, § 2.
51A-6A-20. Payment of subscriptions--Reduction of common stock.
All subscriptions to the stock or ownership units shall be paid in cash. If a trust company in corporate form reduces its common stock and issues preferred stock in lieu of the reduction, it may reduce the par value of the common stock in the proportion that the total amount of capital stock is reduced, but when the preferred stock is retired the par value of the common shares shall be restored.
Source: SL 1995, ch 268, § 18; SL 2012, ch 252, § 17.
51A-6A-21. Transferring stock and ownership units.
The shares of stock and ownership units of any trust company are personal property and shall be transferred on the books of the trust company in such manner as the bylaws or operating regulations of the trust company may direct. No stock or ownership units may be transferred on the books of the trust company when the trust company is in a failing condition, or when its capital is impaired, except upon approval of the director. If a transfer of shares of stock of any trust company, or holding company that owns a majority of the outstanding shares of a trust company, occurs which results through direct or indirect ownership by a stockholder or an affiliated group of stockholders of ten percent or more of the outstanding stock of the trust company, or holding company that owns a majority of the outstanding shares of a trust company, and if additional shares of stock of the trust company are transferred to such stockholders, affiliated group of stockholders, or holding company, the president or other chief executive officer of the trust company shall report the transfer to the director within ten days after transfer of the shares of stock on the books of the trust company.
Source: SL 1995, ch 268, § 19; SL 2013, ch 239, § 4.
51A-6A-22. Increasing capital stock or ownership units.
The capital stock or ownership units of any trust company may be increased. The president and cashier shall forward a verified statement to the director showing the amount of the increase, the names and addresses of the subscribers, the amount subscribed by each, and that the same had been paid in full to the trust company. The date and amount of the increase also shall be certified to the secretary of state.
Source: SL 1995, ch 268, § 20.
51A-6A-23. Registration of capital stock or ownership units.
If the director determines that the capital stock of any trust company is impaired, the director shall notify the trust company to restore the capital stock or ownership units within ninety days of receipt of the notice. Within fifteen days of receipt of the notice, the governing board of the trust company shall levy an assessment on the owners sufficient to restore the capital stock or ownership units. The trust company, with its governing board's approval, may reduce its capital stock or ownership units to the extent of the impairment, if such reduction will not reduce the capital below the amount required by this chapter.
Source: SL 1995, ch 268, § 21.
51A-6A-24. Issuance and retirement of preferred stock.
Any trust company in corporate form may issue preferred stock of one or more classes in amounts approved by the director. The holders of two-thirds of the common stock of the trust company shall approve the issuance at a meeting held for that purpose. Notice shall be given by registered mail to each stockholder at least five days before the date of the meeting under this section. An issuance of preferred stock is not valid until the par value of all stock so issued is paid in. Preferred stock may be retired only if the trust company is in compliance with the capital requirements under § 51A-6A-19 following retirement of the preferred stock and if two-thirds of the holders of common stock of the trust company and the director approve the retirement.
Source: SL 1995, ch 268, § 22; SL 2012, ch 252, § 18; SL 2019, ch 205, § 3.
51A-6A-25. Rights and liability of preferred stockholders--Dividends.
The holders of preferred stock are not liable for assessments to restore any impairment in the capital stock of a trust company. The holders of preferred stock are entitled to receive cumulative dividends, have voting and conversion rights, and have control of management, as may be provided in the articles of incorporation and upon the written approval of the director. The preferred stock shall be retired as provided in the articles of incorporation.
No dividends may be declared or paid on common stock until all cumulative dividends, if any, on the preferred stock have been paid, and if the trust company is dissolved or placed in liquidation, no payments may be made to the holders of common stock until the holders of the preferred stock first have been paid in full for any sums due upon the preferred stock.
Source: SL 1995, ch 268, § 23.
51A-6A-26. Issuance of convertible or nonconvertible capital notes or debentures.
In accordance with normal business considerations and upon approval of owners owning two-thirds of the voting stock or ownership units of the trust company, the trust company may issue convertible or nonconvertible capital notes or debentures in such amounts pursuant to terms and conditions as approved by the director. However, the principal amount of capital notes or debentures outstanding at any time may not exceed an amount equal to one hundred percent of the trust company's paid-in capital stock or ownership units plus fifty percent of the amount of its unimpaired surplus fund. Capital notes or debentures that are by their terms expressly subordinated to the prior payment in full of all liabilities of the trust company are part of the unimpaired capital funds of the trust company.
Source: SL 1995, ch 268, § 24; SL 2015, ch 239, § 6.
51A-6A-27. Dividends not permitted from required capital.
A trust company may not permit to be withdrawn, in the form of dividends, any portion of its capital required under §§ 51A-6A-19 and 51A-6A-19.1.
Source: SL 1995, ch 268, § 25; SL 2015, ch 240, § 6; SL 2019, ch 205, § 4.
51A-6A-28. Dividends from undivided profits or surplus.
The governing board of any trust company may declare dividends from undivided profits or surplus, if the trust company is in compliance with the capital requirements of §§ 51A-6A-19 and 51A-6A-19.1 following payment of the dividend and if the director approves any dividend to be paid from surplus.
Source: SL 1995, ch 268, § 26; SL 2019, ch 205, § 5.
51A-6A-29. Powers of trust company.
A trust company may exercise the following powers necessary or incidental to carrying on a trust company business, including:
(1) Act as agent, custodian, or attorney-in-fact for any person, and, in such capacity, take and hold property on deposit for safekeeping and act as general or special agent or attorney-in-fact in the acquisition, management, sale, assignment, transfer, encumbrance, conveyance, or other disposition of property, in the collection or disbursement of income from or principal of property, and generally in any matter incidental to any of the foregoing;
(2) Act as registrar or transfer agent for any corporation, partnership, association, limited liability company, municipality, state, or public authority, and in such capacity, receive and disburse money, transfer, register, and countersign certificates of stock, bonds, or other evidences of indebtedness or securities, and perform any acts which may be incidental thereto;
(3) Act as trustee or fiduciary under any mortgage or bond issued by a person;
(4) Act as trustee or fiduciary under any trust established by a person;
(5) Act as fiduciary, assignee for the benefit of creditors, receiver, or trustee under or pursuant to the order or direction of any court or public official of competent jurisdiction;
(6) Act as fiduciary, guardian, conservator, assignee, or receiver of the estate of any person and as executor of the last will and testament or administrator, fiduciary, or personal representative of the estate of any deceased person when appointed by a court or public official of competent jurisdiction;
(7) Establish and maintain common trust funds or collective investment funds pursuant to the provisions of chapter 55-6; or
(8) Act in any fiduciary capacity and perform any act as a fiduciary which a South Dakota bank with trust powers may perform in the exercise of those trust powers.
Source: SL 1995, ch 268, § 27; SL 2011, ch 212, § 21; SL 2014, ch 226, § 1.
51A-6A-29.1. Permissible business of trust companies.
A trust company may only carry on a trust company business, as provided in § 51A-6A-29, and such business as is incidental thereto.
Source: SL 2021, ch 203, § 30.
51A-6A-30. Retention of records--Promulgation of rules--Reproduction of records--Duty of confidentiality.
A trust company shall retain its business records in accordance with the provisions of this section. Each trust company shall retain permanently the minute books of meetings of its owners and governing board, its capital stock and ownership unit ledger and capital stock or ownership unit certificate ledger or stubs, its general ledger or the record kept in lieu of a general ledger, its daily statements of condition, and all records which the director shall, in accordance with the provisions of this section, require to be retained permanently. All other records of a trust company shall be retained for such periods as the commission prescribes. The commission shall promulgate rules pursuant to chapter 1-26 classifying all records kept by trust companies, prescribing the period for which records of each class shall be retained, and requiring a record of destruction of records as the commission deems advisable. The periods may be permanent or for a term of years. Before adoption, amendment, or revocation of the rules the commission shall consider:
(1) Actions and administrative proceedings in which the production of trust company records might be necessary or desirable;
(2) State and federal statutes of limitation applicable to such actions or proceedings;
(3) The availability of information contained in trust company records from other sources; and
(4) Any other matters as the commission considers pertinent to the interest of customers and owners of trust companies and of the people of this state having the records available.
Any trust company may destroy any record which has been retained for the period prescribed, in accordance with the terms of this section for retention of records of its class, and is, after it has destroyed a record, under no duty to produce the record.
Instead of retention of the original records, any trust company may cause any of its records in its custody, including those held by it as a fiduciary, to be photographed or otherwise reproduced to permanent form. Any photograph or reproduction has the same force and effect as the original and may be admitted in evidence equally with the original.
Any trust company may cause any transactions, information, and data occurring in the regular course of its operations to be recorded and maintained by electronic means. When the electronic records of the transactions, information, and data are converted to writing, the writings shall constitute the original records of the transactions, information, and data and have the force and effect of the original records.
Nothing in this section may be construed to affect any duty of a trust company to preserve the confidentiality of its records.
Source: SL 1995, ch 268, § 28.
51A-6A-31. Periodic examination of trust company--Report of examination--Cooperative, coordinating and information-sharing agreements among agencies.
The director shall examine each trust company at least once every thirty-six months or more frequently if the director considers it necessary to make a full and careful examination and inquiry into the condition of the affairs of the trust company. For purposes of the examination, the director may administer oaths and examine under oath the board members, officers, employees, and agents of any trust company. The examination shall be reduced to writing by the person making it, and the person's reports shall contain a full, true, and careful statement of the condition of the trust company. The director, in lieu of making a direct examination and inquiry at the trust company office, may examine the trust company in whole or in part by examining the trust company records or documents off-site. For an examination conducted wholly or partially off-site, the director may require production of any records or documents of the trust company at the director's office. The director shall provide a copy of the written examination report to the governing board of the trust company. Neither the director nor any employee of the Division of Banking may have any ownership interest in a trust company.
The director may examine an out-of-state trust institution's trust service offices either on- or off-site to determine whether such offices are being operated in compliance with the laws of this state and in accordance with safe and sound practices.
The director may enter into cooperative, coordinating, and information-sharing agreements with any other supervisory agency or any organization affiliated with or representing one or more supervisory agencies with respect to the periodic examination or other supervision of any trust company or out-of-state trust institution, and the director may accept such agency's or organization's report of examination or investigation in lieu of conducting an examination or investigation.
Source: SL 1995, ch 268, § 29; SL 2006, ch 243, § 1.
51A-6A-32. Examination of fiduciary affairs of officers or employees--Examination of affiliated companies or corporations.
If upon the examination of any trust company, the director considers it necessary, the director may examine the fiduciary affairs of any officer or employee of any trust company; and upon similar determination, the director may examine any investment company or holding company or corporation that is affiliated with any trust company as to matters relevant to the safety and soundness of the trust company. Determinations by the director pursuant to this section are subject to review by the commission pursuant to chapter 1-26.
Source: SL 1995, ch 268, § 30; SL 2014, ch 226, § 3.
51A-6A-33. Examination expenses paid by trust companies--Fees.
The expense of every examination, together with the expense of administering the applicable laws, including salaries, travel expenses, supplies, and equipment, shall be paid by the trust companies of the state. A fee shall be imposed upon a trust company consistent with § 51A-2-36.
Source: SL 1995, ch 268, § 31.
51A-6A-34. Annual report of trust company to director--Form of report--Request for additional reports.
Each trust company shall make at least one report to the director during each year, at a time determined by the director. The director may require additional reports from each trust company if the director considers it advisable. The form of all the reports shall be prescribed by the director. If the director considers it necessary, the director may call upon any trust company for a report of its condition upon any given day. A copy of each request made by the director for a statement from all trust companies doing business under this chapter shall be mailed to each trust company. The copy of the request shall be considered to be legal notice to a trust company.
Source: SL 1995, ch 268, § 32.
51A-6A-35. Authority of trust company revoked upon obstruction or interference with, or refusal to submit to, examination of director.
If any officer of any trust company refuses to submit the books, records, papers, and instruments of the trust company to the examination and inspection of the director or in any manner obstruct or interfere with the examination and investigation of the trust company or refuse to be examined on oath concerning any of the affairs of the trust company, the director may revoke the authority of the trust company to transact business, and with the concurrence of the attorney general, may institute proceedings for the appointment of a receiver for the trust company.
Source: SL 1995, ch 268, § 33.
51A-6A-36. Service of notice of charges--Contents of notice--Temporary cease and desist order.
If the director determines that any trust company is engaging or has engaged, or the director has reasonable cause to believe that the trust company is about to engage, in an unsafe or unsound practice in conducting the business of the trust company, or if the director determines that any trust company is violating or has violated, or the director has reasonable cause to believe that the trust company is about to violate a law, rule, or order of the director or the commission, the director may issue and serve upon the trust company a notice of charges. The notice shall contain a statement of the facts constituting any alleged unsafe or unsound practice or any alleged violation and shall state the time and place at which a hearing will be held by the commission to determine whether an order to cease and desist should be issued by the commission against the trust company. The hearing shall be fixed for a date not earlier than thirty days nor later than sixty days after service of the notice. The hearing shall be conducted pursuant to chapter 1-26. Any determination by the director or the commission under this section is subject to review under chapter 1-26.
Unless the trust company appears at the hearing, the trust company is considered to have consented to the issuance of the cease and desist order. In the event of such consent, or if upon the record made at the hearing, the commission finds that any unsafe or unsound practice or violation specified in the notice of charges has been established, the commission may issue and serve upon the trust company an order to cease and desist from any such practice or violation. The order may, by provisions which may be mandatory or otherwise, require the trust company and its board members, officers, employees, and agents to cease and desist from the practice or violation and to take affirmative action to correct the conditions resulting from the practice or violation. A cease and desist order becomes effective at the time specified in the order, and remains effective and enforceable as provided in the order, except to such extent as it is stayed, modified, terminated, or set aside by action of the commission.
If the director determines that any unsafe or unsound practice or violation specified in the notice of charges served upon the trust company, or the continuation of the practice or violation, is likely to cause insolvency or substantial dissipation of assets or earnings of the trust company, or is likely to otherwise seriously prejudice the interests of its customers, the director may issue a temporary order requiring the trust company to cease and desist from the practice or violation. The order is effective upon service upon the trust company and shall remain effective and enforceable pending the completion of the proceedings pursuant to the notice and until the commission dismisses the charges specified in the notice, or if a cease and desist order is issued against the trust company, until the effective date of the order.
Source: SL 1995, ch 268, § 34.
51A-6A-37. Revocation of franchise for failure to comply with lawful requirements.
Any trust company which refuses or neglects to comply with any requirement lawfully made upon it by the director for a period of ninety days after demand in writing is made forfeits its franchise, and the director shall thereupon revoke its authority to transact business. The director shall give notice of the revocation to the president or other managing officer of the trust company. The attorney general, upon the request of the director, then shall begin action for the appointment of a receiver for the trust company and to dissolve the trust company.
Source: SL 1995, ch 268, § 35.
51A-6A-38. Hearing on revocation of trust authority.
A trust company subject to revocation of trust authority shall be afforded the right to a hearing in accordance with the provisions of chapter 1-26. Any revocation of authority to transact trust business is subject to review in accordance with chapter 1-26.
Source: SL 1995, ch 268, § 36.
51A-6A-39. Confidentiality of information generated by examination--Disclosure--Hearing.
All information the director generates in making an investigation or examination of a state trust company is confidential. All confidential information shall remain the property of the division and shall be furnished to the trust company for its confidential use. Under no circumstances may a trust company disclose a report or any supporting documentation to anyone, other than directors and officers of the trust company or anyone acting in a fiduciary capacity for the trust company, without written permission from the director.
The director shall give ten days' prior written notice of intent to disclose confidential information to the affected trust company. Any trust company which receives a notice may object to the disclosure of the confidential information and shall be afforded the right to a hearing in accordance with the provisions of chapter 1-26. If a trust company requests a hearing, the director may not reveal confidential information prior to the conclusion of the hearing and a ruling. Disclosure of confidential information shall be made only to formal regulatory bodies which clearly have a need for the confidential information. Prior to dissemination of any confidential information, the director shall require a written agreement not to reveal the confidential information by the party receiving the confidential information. In no event may the director disclose confidential information to the general public, any competitor, or any potential competitor of a trust company.
The submission of any information to the division in the course of any investigation or examination may not be construed as waiving, destroying, or otherwise affecting any privilege any person may claim with respect to the information under South Dakota law or federal law.
Source: SL 1995, ch 268, § 37; SL 2008, ch 258, § 9; SL 2012, ch 233, § 3.
51A-6A-40. Correction of unsafe or unsound condition or operation--Appointment of special assistant--Appeal of appointment.
If the director determines that the business of any trust company is being conducted in an unsafe or unsound manner, the director may appoint a special assistant who shall immediately take charge of the operation of the trust company for the purpose of correcting any unsafe or unsound condition or operation. After appointment, the special assistant shall continue to serve under the direction of the director for a period of time as the director determines is reasonable and necessary or until relieved by order of the commission or of a court of competent jurisdiction. The special assistant's salary, which shall be determined by the director, and expenses shall be borne by the trust company under supervision. After an appointment of a special assistant, a trust company may, within thirty days from the date of the notice of the appointment, appeal in writing to the commission. If a trust company appeals, the commission shall fix a date for a hearing which shall be within thirty days from the date of the appeal. The hearing shall be conducted in accordance with the provisions of chapter 1-26. The commission shall render an order as to the correctness or incorrectness of the director's decision to take over the conduct of the trust company, and the order of such commission is subject to review under chapter 1-26.
Source: SL 1995, ch 268, § 38.
51A-6A-41. Insolvency defined.
A trust company is insolvent if:
(1) The actual cash market value of its assets is insufficient to pay its creditor liabilities except that for this purpose unconditional evidence of indebtedness of the United States of America may be valued, at the discretion of the director, at par, cost or fair market value, whichever is the lesser; or
(2) It is unable to meet the demands of its creditors in the usual and customary manner.
Source: SL 1995, ch 268, § 39.
51A-6A-42. Director to take charge of insolvent trust company--Appointment of special assistant.
If it appears upon the examination of any trust company or from any report made to the director that any trust company is insolvent, the director shall take charge of the trust company and all of its property and assets. In so doing the director may appoint a special assistant to take charge temporarily of the affairs of the insolvent trust company until a receiver is appointed. The assistant shall qualify, give bond, and receive compensation the same as the regular examiner, but the compensation shall be paid by the insolvent trust company, or in case of the appointment of a receiver, allowed by the court as costs in the case. No trust company may continue in the charge of a special assistant for a longer period than six months.
Source: SL 1995, ch 268, § 40; SL 2012, ch 252, § 19.
51A-6A-43. Plan for reorganization of insolvent trust company.
The owners of any insolvent trust company and its creditors may formulate a plan for the reorganization of the trust company while the trust company is in the charge of the director or a special assistant or a receiver at any time before a dividend has been paid. The creditors of the insolvent trust company may formulate a plan for the reorganization of the trust company. If the plan is subscribed to in writing by creditors having not less than eighty percent of the known claims against the trust company, a copy of the plan is filed with the director, and the director approves the plan, the plan is legal, valid, and binding upon all creditors of the insolvent trust company to the same extent and with the same effect as if all of the creditors had joined in the execution of the plan.
Source: SL 1995, ch 268, § 41; SL 2015, ch 239, § 7.
51A-6A-44. Appointment of receiver--Bond--Qualifications--Report--Removal.
When the director takes charge of any trust company, the director shall ascertain its actual condition as soon as possible by making a thorough investigation into its affairs and condition. If the director is satisfied that the trust company cannot resume business or liquidate its indebtedness to the satisfaction of its creditors, the director shall appoint a receiver and require the receiver to give such bond as the director considers proper. The director also shall fix reasonable compensation for the receiver, but the compensation for the receiver is subject to the approval of the circuit court of the county in which the trust company is located upon the application of any party in interest.
Any receiver shall have had at least five years of experience with financial institutions. However, upon written application made within thirty days after the findings of insolvency, the director shall appoint as receiver any person whom the holders of more than sixty percent of the claims against the trust company agree upon in writing. The creditors may also agree upon the compensation and charges to be paid the receiver. Any receiver so appointed shall make a complete report to the director covering the receiver's acts and proceedings as a receiver. The director may remove for cause any receiver and appoint the receiver's successor.
Source: SL 1995, ch 268, § 42; SL 2005, ch 260, § 10.
51A-6A-45. Powers and duties of receiver--Order of payment of liabilities.
The receiver, under the direction of the director, shall take charge of any insolvent trust company and all of its assets and property and liquidate the affairs and business for the benefit of clients, creditors, and owners. The receiver may sell or compound all bad and doubtful debts and sell all the property of the trust company upon such terms as the circuit court of the county in which the trust company is located approves. The receiver shall pay over all moneys received to the creditors of the trust company as ordered by the director. In distributing assets of an insolvent trust company in payment of its liabilities, the order of payment, if its assets are insufficient to pay in full all of its liabilities, shall be by category as follows:
(1) The costs and expenses of the receivership and real and personal property taxes assessed against the trust company pursuant to applicable law;
(2) Claims which are secured or given priority by applicable law;
(3) Claims of unsecured creditors;
(4) All other claims exclusive of claims on capital notes and debentures; and
(5) Claims on capital notes and debentures.
If the assets are insufficient for the payment in full of all claims within a category, the claims shall be paid in the order provided by other applicable law or, in the absence of such applicable law, pro rata.
Source: SL 1995, ch 268, § 43.
51A-6A-45.1. Liability of receiver.
No receiver, appointed pursuant to § 51A-6A-44, is liable to any person for good faith compliance with any law, statute, rule, or judgment, decree, or order of a court. Nor is any receiver liable to any person for any action taken or omitted unless a court finds that the receiver acted or failed to act as a result of misfeasance, bad faith, gross negligence, or reckless disregard of duty.
Source: SL 2005, ch 260, § 11.
51A-6A-46. Periodic examination of trust company in the hands of a receiver.
At least once each six months the director shall examine each trust company in the hands of a receiver and shall file a copy of the examination report with the clerk of the circuit court of the county in which the trust company is located. Each receiver shall submit the records and affairs of the trust company to an examination by the director.
Source: SL 1995, ch 268, § 44.
51A-6A-46.1. Suspension, liquidation, order against unsound practice, removal of director or officer, or injunction.
In addition to the powers granted to the director and the commission in §§ 51A-6A-35 to 51A-6A-46, inclusive, the powers granted to the director and commission pursuant to §§ 51A-15-11 to 51A-15-44, inclusive, 51A-2-22, and 51A-2-25 to 51A-2-27, inclusive, may be utilized by the director and the commission with regard to trust companies. The powers granted by §§ 51A-15-11 to 51A-15-44, inclusive, 51A-2-22, and 51A-2-25 to 51A-2-27, inclusive, may be used by the director and the commission in connection with a trust company as a supplement to or as an independent alternative to the powers granted in §§ 51A-6A-35 to 51A-6A-46, inclusive.
Source: SL 2004, ch 312, § 4; SL 2010, ch 232, § 22.
51A-6A-46.2. Disclosure of confidential information in certain actions.
The provisions of §§ 51A-6A-2 and 51A-6A-39 do not apply to the disclosure of information by the director or the commission in connection with the institution and prosecution of an action against an individual pursuant to the provisions of § 51A-2-22 or against a trust company pursuant to the provisions of §§ 51A-15-11 to 51A-15-44, inclusive, or 51A-2-25 to 51A-2-27, inclusive, or 51A-6A-35 to 51A-6A-46, inclusive. Disclosure of confidential information may be made only to formal governmental regulatory bodies which have a need for the confidential information.
Source: SL 2004, ch 312, § 5; SL 2015, ch 240, § 7.
51A-6A-47. Acquisition of trust company--Notice to director--Approval--Order of disapproval--Hearing.
A person acquiring control through direct or indirect ownership by an owner or an affiliated group of owners shall give the director at least sixty days prior written notice of any proposed trust company acquisition. If the director does not issue an order disapproving the proposed acquisition within that time or extend the period during which a disapproval may be issued, the proposed acquisition is approved. The period for disapproval shall be thirty days after notice is received by the director and may be further extended only if the director determines that any acquiring person has not furnished all the information required under § 51A-6A-48 or if in the director's judgment, any material information submitted is substantially inaccurate. An acquisition may be made prior to expiration of the disapproval period if the director issues written notice of the director's intent not to disapprove the action.
If the director disapproves an acquisition, the director shall serve the acquiring person with an order of disapproval. The order shall provide a statement of the basis for the disapproval. Within thirty days after service of an order of disapproval, the acquiring person may request a hearing on the proposed acquisition with the commission. Upon receipt of a timely request, the commission shall conduct a hearing in accordance with the provisions of chapter 1-26. Any disapproval by the commission of a proposed acquisition is subject to review in accordance with chapter 1-26.
Actual expenses incurred by the director or commission in carrying out any investigation that may be necessary or required by statute shall be paid by the person submitting the proposed acquisition.
Source: SL 1995, ch 268, § 45; SL 2013, ch 239, § 6.
51A-6A-48. Contents of notice of proposed acquisition.
A notice of a proposed trust company acquisition shall contain, in the form prescribed by the director, the following information:
(1) The identity, personal history, business background, and experience of any person by whom or on whose behalf the acquisition is to be made, including the person's material business activities and affiliations during the past five years and a description of any material pending legal or administrative proceedings in which the person is a party and any criminal indictment or conviction of the person by a state or federal court;
(2) A statement of the assets and liabilities of any person by whom or on whose behalf the acquisition is to be made, as of the end of the fiscal year for each of the five fiscal years immediately preceding the date of the notice, together with related statements of income and source and application of funds for each of the fiscal years then concluded and an interim statement of the assets and liabilities for any person, together with related statements of income and source and application of funds, as of a date not more than ninety days prior to the date of the notice;
(3) The terms and conditions of the proposed acquisition and the manner in which the acquisition is to be made;
(4) The identity, source, and amount of the funds or other considerations used or to be used in making the acquisition and, if any part of these funds or other considerations has been or is to be borrowed or otherwise obtained for the purpose of making the acquisition, a description of the transaction, the names of the parties to the transaction, and any arrangements, agreements, or understandings with such persons;
(5) Any plans or proposals which any acquiring person making the acquisition may have to liquidate the trust company, to sell its assets or merge it with any company, or to make any other major change in its business or corporate structure or management;
(6) The identification of any person employed, retained, or to be compensated by the acquiring person or by any person on the acquiring person's behalf to make solicitations or recommendations to owners for the purpose of assisting in the acquisition and a brief description of the terms of the employment, retainer, or arrangement for compensation;
(7) Copies of all invitations or tenders or advertisements making a tender offer to owners for purchase of their stock or ownership units to be used in connection with the proposed acquisition; and
(8) Any additional relevant information in such forms as the directors may require by specific request in connection with any particular notice.
Source: SL 1995, ch 268, § 46.
51A-6A-49. Reason for disapproval of acquisition.
The director may disapprove any proposed acquisition if:
(1) The proposed acquisition of control would result in a monopoly or would be in furtherance of any combination or conspiracy to monopolize or attempt to monopolize the trust business in any part of this state;
(2) The financial condition of any acquiring person is such as might jeopardize the financial stability of the trust company or prejudice the interests of the clients of the trust company;
(3) The competence, experience, or integrity of any acquiring person or of any of the proposed management personnel indicates that it would not be in the interest of the clients of the trust company or in the interest of the public to permit such person to control the trust company; or
(4) Any acquiring person neglects, fails, or refuses to furnish the director all the information required by the director.
Source: SL 1995, ch 268, § 47.
51A-6A-50. Procedure for merger, consolidation, conversion, or transfer of assets and liabilities to another bank or trust company.
Before any trust company can merge, consolidate with, convert from a corporation to a limited liability company or from a limited liability company to a corporation under § 47-1A-950 or 47-1A-950.1, or transfer its assets and liabilities to another trust company or bank, it shall file with the director, certified copies of all proceedings of its governing board and owners relating to the merger, consolidation, conversion, or transfer. The owners' proceedings shall show that a majority of the owners voted in favor of the merger, consolidation, conversion, or transfer. The owners' proceedings shall contain a complete copy of the agreement made and entered into, with reference to the merger, consolidation, conversion, or transfer. Upon the filing of the owners' and governing board's proceedings, the director shall make an investigation to determine whether:
(1) The interests of the clients, creditors, and owners of each are protected;
(2) The merger, consolidation, conversion, or transfer is in the public interest; and
(3) The merger, consolidation, conversion, or transfer is made for legitimate purposes.
The director's consent to or rejection of a merger, consolidation, conversion, or transfer shall be based upon the investigation. No merger, consolidation, conversion, or transfer may be made without the consent of the director. The expense of the investigation shall be paid by the persons filing the request.
Source: SL 1995, ch 268, § 48; SL 2012, ch 252, § 20.
51A-6A-50.1. Proceedings to legally dissolve charter of acquired, merged, or consolidated trust company.
If a trust company has been acquired, merged, or consolidated with another trust company or financial institution, or its assets have been purchased and its liabilities assumed by another trust company or financial institution, in any instance other than an emergency, within thirty days thereafter, the directors of the trust company shall institute proceedings to legally dissolve its charter in the same manner as provided for voluntary liquidation in chapter 51A-15. However, no notice need be given pursuant to § 51A-15-3.
Source: SL 2015, ch 240, § 8.
51A-6A-51. Necessity of execution or delivery of deed for merger or consolidation.
When a merger or consolidation of any trust company occurs, the successor consolidated trust company or bank becomes the owner of, and entitled to, the possession of all rights, franchises, and interests, real estate, and personal property as is covered by the merger or consolidation agreement without the necessity of the execution or delivery of a deed or other form of transfer.
Source: SL 1995, ch 268, § 49.
51A-6A-52. Fiduciary capacity of successor trust company.
Upon the merger or consolidation of any trust company, the successor trust company, upon acquiring trust authority, may be appointed to act as trustee, personal representative, conservator, or any other fiduciary capacity to the same extent and with the same authority as the trust company to which it succeeds.
Source: SL 1995, ch 268, § 50.
51A-6A-53. Name of trust company--Name change.
No trust company may take the name of any other trust company incorporated in the state or a name so similar to another as to be easily confused with it. No trust company may change its name until the name change has been submitted to and approved by the director. The director may refuse authority to any trust company violating this provision.
Source: SL 1995, ch 268, § 51.
51A-6A-54. Approval required for changing place of business--Examination and investigation by director.
No trust company incorporated under the laws of this state may change its place of business, from one city or town to another or from one location to another within the same city or town, without the prior approval of the director. Any trust company desiring to change its place of business shall file a written application with the director in the form and containing the information as the director requires. The director shall examine and investigate the application and approve or disapprove the application. The expenses of the examination and investigation shall be paid by the trust company.
Source: SL 1995, ch 268, § 52; SL 2008, ch 258, § 10.
51A-6A-58. Establishment of trust service offices--Application.
After first applying for and obtaining the approval of the director, one or more trust service offices may be established and operated by a trust company incorporated under the laws of this state or by an out-of-state trust institution, if and to the extent that the state, territory, or district in which the out-of-state trust institution is chartered or licensed to engage in a trust company business grants authority for a trust company organized and doing business under the laws of this state to establish an office in that state, territory, or district. An application to establish and operate a trust service office or to relocate an existing trust service office shall be submitted and approved in the manner set forth in § 51A-6A-4.
A trust company may establish a trust service office in another state, territory, or district and may conduct any activities at that office that are permissible for a trust company under the laws of that state, territory, or district subject to the laws of this state and subject to the rules, orders, or declaratory rules of the commission or the director.
The provisions of this section do not apply to a private trust company unless the governing board decides to establish a trust service office in another state, territory, or district.
Source: SL 1995, ch 268, § 56; SL 2005, ch 260, § 14; SL 2008, ch 258, § 11; SL 2016, ch 231, § 8.
51A-6A-61. Membership in federal reserve bank.
Any trust company may become a stockholder in and a member of the federal reserve bank of the federal reserve district where the trust company is located.
Source: SL 1995, ch 268, § 59.
51A-6A-62. Depositing securities into federal reserve bank.
Any trust company when acting as fiduciary, and any trust company when holding securities as custodian for a fiduciary, may deposit, or arrange for the deposit, with the federal reserve bank in its district, of any securities the principal and interest of which the United States or any department, agency, or instrumentality of the United States has agreed to pay, or has guaranteed payment, to be credited to one or more accounts on the books of the federal reserve bank in the name of the trust company. Any account used for this purpose shall be designated as a fiduciary or safekeeping account, and other similar securities may be credited to the account. A trust company depositing securities with a federal reserve bank is subject to any rules with respect to the making and maintenance of the deposits as the director may promulgate pursuant to chapter 1-26. The records of the trust company shall always show the ownership of the securities held in the account.
Source: SL 1995, ch 268, § 60.
51A-6A-63. Registering investments in name of nominee--Liability of trust company.
Any trust company, when acting in this state as a fiduciary or a co-fiduciary with others, may with the consent of its co-fiduciary or co-fiduciaries, if any, cause any investment held in any such capacity, to be registered and held in the name of a nominee or nominees of the trust company. The trust company is liable for the acts of any nominee with respect to any investment so registered.
Source: SL 1995, ch 268, § 61.
51A-6A-64. Common trust funds and collective investment funds.
Any trust company qualified to act as a fiduciary in this state may establish common trust funds or collective investment funds for the purpose of furnishing investments to itself as fiduciary, or to itself and others, as co-fiduciaries. Any trust company qualified to act as fiduciary in this state may, as such fiduciary or co-fiduciary, invest funds that it lawfully holds for investment in the common trust funds or collective investment funds, if the investment is not prohibited by the instrument, judgment, decree, or order creating the fiduciary relationship. Any common trust fund or collective investment funds shall be established and maintained according to the provisions of chapter 55-6.
Source: SL 1995, ch 268, § 62; SL 2011, ch 212, § 22; SL 2014, ch 226, § 2.
51A-6A-66. Exclusion of entity from chapters 51A-5 and 51A-6A--Governing documents--Notice to director.
An entity may be excluded from the provisions of chapters 51A-5 and 51A-6A if:
(1) The entity is established for the exclusive purpose of acting as a trust protector, investment trust advisor, or distribution trust advisor, as defined by § 55-1B-1, or any combination of such purposes;
(2) The entity is acting in such capacity under a trust instrument that names a South Dakota trust company, a South Dakota bank with trust powers, or a national bank with trust powers as trustee;
(3) The entity is not engaged in trust company business with the general public as a public trust company or with any family as a private trust company;
(4) The entity does not hold itself out as being in the business of acting as a fiduciary for hire as either a public or private trust company;
(5) The entity files an annual report with the South Dakota secretary of state and provides a copy to the Division of Banking;
(6) The entity agrees to be subject to examination by the Division of Banking at the discretion of the director; and
(7) The entity does not use the word, trust, in the entity's name in any manner.
The governing documents of any such excluded entity must limit its authorized activities to the functions permitted to a trust protector, investment trust advisor, or distribution trust advisor pursuant to chapter 55-1B, or any combination of such purposes, and limit the performance of those functions with respect to a specifically named trust or family of trusts.
An entity complying with this section shall notify the director of its existence, capacity to act, and the name of the trustee for the trust or family of trusts.
Source: SL 2011, ch 212, § 7; SL 2013, ch 239, § 11; SL 2018, ch 270, § 2; SL 2021, ch 203, § 32.
51A-6A-67. Trust company receivership and liquidation captive insurance company fund.
There is hereby established in the state treasury the trust company receivership and liquidation captive insurance company fund. The Department of Labor and Regulation may enter into an agreement with a captive insurance company for the management of the fund. Money in the fund may be used to pay for trust company receivership and liquidation costs for trust companies chartered and regulated by the Division of Banking as well as administrative and reinsurance costs for the fund. Interest earned on money in the fund shall be deposited into the fund. Unexpended money and any interest that may be credited to the fund shall remain in the fund. Any money in the trust company receivership and liquidation captive insurance company fund is continuously appropriated. Any money deposited into and distributed from the fund shall be set forth in an informational budget as described in § 4-7-7.2.
Source: SL 2016, ch 228, § 4; SDCL § 51A-6-23.
CHAPTER 51A-7
BRANCH BANKS AND DRIVE-IN FACILITIES
51A-7-1 Operation of branches.
51A-7-2 Examination of branches.
51A-7-3 Capital requirements for bank operating branch.
51A-7-4 Establishment of branch banks.
51A-7-5 51A-7-5. Repealed by SL 2008, ch 252, § 31.
51A-7-6 Closing branch--Approval required--Violation as misdemeanor.
51A-7-7 National banks' branching authority.
51A-7-8 Detached drive-in facility--Requirements for construction and operation.
51A-7-9 "Detached" defined.
51A-7-10 Limitation on functions of detached drive-in facility.
51A-7-11 Construction or operation of detached drive-in facility--Approval required.
51A-7-12 Indication of parent bank on branches and drive-in facilities.
51A-7-13 Definition of terms.
51A-7-14 Interstate branches--Approval required.
51A-7-15 Application to establish interstate branch--Fee.
51A-7-16 Restrictions on branches by other states.
51A-7-17 51A-7-17, 51A-7-18. Repealed by SL 2008, ch 252, §§ 38, 39.
51A-7-19 Examination of out-of-state bank's South Dakota branch.
51A-7-20 Reports required from out-of-state bank with South Dakota branch.
51A-7-21 51A-7-21, 51A-7-22. Repealed by SL 2008, ch 252, §§ 40, 41.
51A-7-23 Joint examinations of joint enforcement actions by commission and bank supervisory agencies.
51A-7-24 51A-7-24. Repealed by SL 2008, ch 252, § 42.
51A-7-25 Authority of director in case of violation by South Dakota branch of out-of-state bank.
51A-7-26 Promulgation of rules to establish fees.
51A-7-27 51A-7-27. Repealed by SL 2008, ch 252, § 43.
51A-7-28 Prohibitions concerning bank names.
51A-7-29 Intentional misleading as to source of product, service, or communication prohibited.
51A-7-1. Operation of branches.
A branch bank or mobile branch bank may be operated by a bank only as authorized by this title and by the director under such rules as the commission shall require.
Source: SL 1933 (SS), ch 2, § 2; SL 1935, ch 54; SDC 1939, § 6.0402; SL 1957, ch 11; SDCL §§ 51-8-2, 51-8-3; SL 1969, ch 11, § 6.1; SL 1988, ch 377, § 125; SDCL § 51-20-1; SL 2008, ch 252, § 28.
51A-7-2. Examination of branches.
Every branch bank or mobile branch bank is subject to examination by the director as provided in §§ 51A-2-18 and 51A-2-20 and shall pay the fees prescribed therefor.
Source: SDC 1939, § 6.0402 as added by SL 1957, ch 11; SDCL § 51-8-5; SL 1969, ch 11, § 6.2; SL 1988, ch 377, § 126; SDCL § 51-20-2; SL 2008, ch 252, § 29.
51A-7-3. Capital requirements for bank operating branch.
Any bank operating a branch bank or banks shall have total capital of not less than the minimum amount required by rule of the commission.
Source: SL 1933 (SS), ch 2, § 2; SDC 1939, § 6.0402; SL 1957, ch 11; SDCL, § 51-8-4; SL 1969, ch 11, § 6.3; SL 1982, ch 334, § 2; SL 1988, ch 377, § 127; SDCL, § 51-20-3.
51A-7-4. Establishment of branch banks.
A branch bank may be established de novo or by consolidating or merging with or purchasing the assets of another state bank, national bank or savings and loan association, or another federally insured financial institution.
Source: SL 1933 (SS), ch 2, § 2; SDC 1939, § 6.0402; SL 1957, ch 11; SDCL § 51-8-1; SL 1969, ch 11, § 6.4; SL 1978, ch 351; SL 1981, ch 346, § 41; SL 1990, ch 381; SDCL § 51-20-4; SL 2008, ch 252, § 30.
51A-7-6. Closing branch--Approval required--Violation as misdemeanor.
No branch bank may close without the approval of the director. If a branch is closed the branch certificate shall be surrendered to the division. A violation of this section is a Class 2 misdemeanor.
Source: SL 1984, ch 316; SL 1988, ch 377, § 128; SDCL § 51-20-4.2; SL 2008, ch 252, § 32.
51A-7-7. National banks' branching authority.
Any national bank whose principal place of business is in this state is hereby authorized to do all things and perform all acts which state banks are permitted to do or perform under this chapter, subject to the conditions and restrictions provided for state banks as to exercise of like privileges.
Source: SL 1933 (SS), ch 2, § 2; SDC 1939, § 6.0402; SL 1957, ch 11; SDCL, § 51-8-6; SL 1969, ch 11, § 6.5; SDCL, § 51-20-5.
51A-7-8. Detached drive-in facility--Requirements for construction and operation.
Construction and operation of one detached drive-in facility for each bank and branch bank is authorized so long as such bank or branch bank shall comply with all the provisions of this chapter.
Source: SL 1965, ch 21, § 1; SDCL, § 51-8-8; SL 1969, ch 11, § 6.6; SDCL, § 51-20-6.
51A-7-9. "Detached" defined.
A drive-in facility is "detached" within the meaning of this chapter when any part of any structure in which any of the services of the drive-in facility are carried on is located at least fifty feet from the building in which the main banking room of the bank or branch bank operating the drive-in facility is located.
Source: SL 1965, ch 21, § 2; SDCL, § 51-8-10; SL 1969, ch 11, § 6.7; SL 1981, ch 346, § 43; SDCL, § 51-20-7.
51A-7-10. Limitation on functions of detached drive-in facility.
The only banking services which may be offered or rendered to the public at any detached drive-in facility are services comparable to those customarily performed by a bank teller in a bank. No loan or discount services shall be offered or rendered to the public at any detached drive-in facility except that loan payments may be made and accepted at such facility.
Source: SL 1965, ch 21, § 6; SDCL, § 51-8-13; SL 1969, ch 11, § 6.11; SDCL, § 51-20-11.
51A-7-11. Construction or operation of detached drive-in facility--Approval required.
No detached drive-in facility may be constructed or operated without the prior written approval of the director, in the case of a state bank, or the appropriate federal regulatory authority in the case of a national bank.
Source: SL 1965, ch 21, § 7; SDCL § 51-8-9; SL 1969, ch 11, § 6.12; SDCL § 51-20-12; SL 2008, ch 252, § 33.
51A-7-12. Indication of parent bank on branches and drive-in facilities.
A branch bank, mobile branch bank, or drive-in facility shall clearly indicate the identity of its parent bank.
Source: SL 1981, ch 346, § 70; SDCL § 51-20-13; SL 2008, ch 252, § 34.
51A-7-13. Definition of terms.
Terms used in §§ 51A-7-13 to 51A-7-26, inclusive, mean:
(1) "Acquisition of a branch," the acquisition of a branch located in a host state;
(2) "Bank," a bank as defined in 12 U.S.C. § 1813(h) as of January 1, 1996. The term does not include any foreign bank as defined in § 12 U.S.C. 3101(7) as of January 1, 1996. However, the term includes any foreign bank organized under the laws of a territory of the United States, Puerto Rico, Guam, American Samoa, or the Virgin Islands, the deposits of which are insured by the Federal Deposit Insurance Corporation;
(3) "Bank supervisory agency," any agency of another state with primary responsibility for chartering and supervising banks, the Office of the Comptroller of the Currency, the Federal Deposit Insurance Corporation, the Board of Governors of the Federal Reserve System, or any successor to these agencies;
(4) "Branch," a branch bank as defined by subdivision 51A-1-2(7);
(5) "Director," the director of the Division of Banking;
(6) "Control," control as construed consistently with the provisions of 12 U.S.C. § 1841(a)(2) as of January 1, 1996;
(7) "Home state," for a state bank, the state by which the bank is chartered; for a national bank, the state in which the main office of the bank is located; and for a foreign bank, the state determined to be the home state of the foreign bank pursuant to 12 U.S.C. § 3103(c) as of January 1, 1996;
(8) "Home state regulator," for an out-of-state state bank, the bank supervisory agency of the state in which the bank is chartered;
(9) "Host state," a state, other than the home state of a bank, in which the bank maintains, or seeks to establish and maintain a branch;
(10) "Out-of-state bank," a bank whose home state is a state other than South Dakota;
(11) "Out-of-state state bank," a bank chartered under the laws of any state other than South Dakota;
(12) "State," any state of the United States, the District of Columbia, any territory of the United States, Puerto Rico, Guam, American Samoa, the Trust Territory of the Pacific Islands, the Virgin Islands, and the Northern Mariana Islands;
(13) "South Dakota state bank," a bank chartered under the laws of South Dakota; and
(14) "Commission," the State Banking Commission for South Dakota.
Source: SL 1996, ch 280, § 1; SL 2021, ch 204, § 2.
51A-7-14. Interstate branches--Approval required.
With prior approval of the director, any South Dakota state bank may establish and maintain a branch or acquire a branch in a state other than South Dakota. A South Dakota state bank may conduct any activities at a branch outside of South Dakota that are permissible for a bank chartered by the host state where the branch is located.
Source: SL 1996, ch 280, § 2; SL 2008, ch 252, § 35.
51A-7-15. Application to establish interstate branch--Fee.
No South Dakota state bank may establish or maintain a branch in another state until the application and appropriate fee has been submitted and approved as provided in § 51A-2-16. In acting on an application, the director or commission, as the case may be, may consider the views of the appropriate bank supervisory agencies.
Source: SL 1996, ch 280, § 3; SL 2008, ch 252, § 36.
51A-7-16. Restrictions on branches by other states.
To the extent another state imposes a restriction on the ability of a South Dakota bank to establish, acquire, or retain a branch in that state, the other state's restriction shall apply to the establishment, acquisition, or retention of a branch in South Dakota by a bank from that state.
Source: SL 1996, ch 280, § 4; SL 2008, ch 252, § 37.
51A-7-19. Examination of out-of-state bank's South Dakota branch.
The director may make such examinations of any branch established and maintained in South Dakota pursuant to §§ 51A-7-13 to 51A-7-26, inclusive, by an out-of-state state bank as the director may deem necessary to determine whether the branch is operated in compliance with the laws of South Dakota and in accordance with safe and sound banking practices. The provisions of § 51A-2-18 apply to the examinations.
Source: SL 1996, ch 280, § 7; SL 2021, ch 204, § 3.
51A-7-20. Reports required from out-of-state bank with South Dakota branch.
The director may require periodic reports regarding any out-of-state bank that has established and maintained a branch in South Dakota. The required reports may be provided by the bank or by the bank supervisory agency having primary responsibility for the bank. Any reporting requirements prescribed by the director under this section shall be consistent with the reporting requirements applicable to South Dakota state banks.
Source: SL 1996, ch 280, § 8.
51A-7-23. Joint examinations of joint enforcement actions by commission and bank supervisory agencies.
The commission may enter into joint examinations or joint enforcement actions with other bank supervisory agencies having concurrent jurisdiction over any branch established and maintained in South Dakota by an out-of-state bank or any branch established and maintained by a South Dakota state bank in any host state. The director may at any time take any actions independently if the director deems such actions to be necessary or appropriate to carry out the commission's responsibilities under §§ 51A-7-13 to 51A-7-26, inclusive, or to ensure compliance with the laws of South Dakota. However, in the case of an out-of-state state bank, the director shall recognize the exclusive authority of the home state regulator with respect to matters of safety and soundness.
Source: SL 1996, ch 280, § 11; SL 2021, ch 204, § 4.
51A-7-25. Authority of director in case of violation by South Dakota branch of out-of-state bank.
If it is determined that a branch maintained by an out-of-state state bank in South Dakota is being operated in violation of any provision of the laws of South Dakota or is being operated in an unsafe and unsound manner, the director has the authority to take any enforcement action as though the branch were a South Dakota state bank if the director gives notice to the home state regulator of the enforcement action.
Source: SL 1996, ch 280, § 13.
51A-7-26. Promulgation of rules to establish fees.
The commission may promulgate rules pursuant to chapter 1-26 to establish the fees provided by §§ 51A-7-13 to 51A-7-15, inclusive, and to provide the necessary forms to administer §§ 51A-7-13 to 51A-7-25, inclusive.
Source: SL 1996, ch 280, § 14; SL 2021, ch 204, § 5.
51A-7-28. Prohibitions concerning bank names.
No provision of this chapter permits any person, partnership, association, or corporation to identify a newly formed bank, to rename an existing bank, or to open a branch of a newly formed or existing bank, if the effect of such formation, opening, or renaming would be likely to create confusion between the trade name, trademark, service mark, or trade identity of such bank or branch and an existing bank or branch having prior trade name, trademark, service mark, or trade identity rights in the trade area sought to be entered by such newly formed or renamed bank or branch.
Source: SL 1996, ch 281.
51A-7-29. Intentional misleading as to source of product, service, or communication prohibited.
No person may use the word, bank, or any variation of the word, bank, or logo of an existing bank, trust company, savings association, savings bank, or affiliate in a manner that intentionally misleads a person about the source of origin, affiliation, or sponsorship of a product or service or about the true identity source of a communication regardless of the nature of the communication.
Source: SL 2008, ch 252, § 44.
51A-8-1
"Remote service unit" defined.
51A-8-1.1
Deposits through use of remote service units--Limited to certain financial
institutions.
51A-8-2 to 51A-8-4. Repealed.
51A-8-5
Branch bank provisions inapplicable.
51A-8-6 to 51A-8-8. Repealed.
51A-8-1. "Remote service unit" defined.
The term, remote service unit, as used in this chapter means an automated teller machine or ATM which is a manned or unmanned device located separate and apart from a bank or branch bank through or by means of which information relating to banking services rendered to the public is electronically stored and transmitted, whether instantaneously or otherwise, to a bank and which provides for cash withdrawals and the depositing of funds.
Source: SL 1976, ch 305, § 1; SL 1988, ch 377, § 129; SDCL, § 51-20A-1; SL 1996, ch 282, § 1.
51A-8-1.1. Deposits through use of remote service units--Limited to certain financial institutions.
No person other than a national bank, a bank organized under the laws of this or any state, a savings and loan association or savings bank organized under the laws of the United States or this or any state, or a credit union organized under the laws of the United States, may accept deposits through the use of remote service units.
Source: SL 2005, ch 253, § 1.
51A-8-5. Branch bank provisions inapplicable.
Remote service units as defined in this chapter are not branch banks as provided by chapter 51A-7.
Source: SL 1976, ch 305, § 4; SL 1988, ch 377, § 131; SDCL, § 51-20A-5.
51A-9-1
"Bank service corporation" and "bank services" defined.
51A-9-2
Investment in bank service corporation.
51A-9-3
Authority of bank service corporation.
51A-9-4
Ownership of bank or bank holding company stock prohibited.
51A-9-5
Examination of bank services.
51A-9-1. "Bank service corporation" and "bank services" defined.
Terms as used in this chapter mean:
(1) "Bank service corporation," any corporation organized to perform bank services for one or more banks, each of which owns part of the capital stock of such corporation.
(2) "Bank services," activities which are a part of the business of banking or incidental thereto, including the servicing of mortgages and loans; the leasing of personal property; the operation of travel agencies; the operation of credit bureaus or collection or billing agencies; check and deposit sorting and posting; computation and posting of interest and other charges; preparation and mailing of checks, statements, notices and similar items; any other clerical, bookkeeping, accounting, statistical, or similar functions performed for a bank; or such other related activities as the commission may by rule determine to be part of the business of banking, provided that the receipt of deposits and the making of loans are not bank services for the purpose of this chapter.
Source: SL 1963, ch 29, § 1; SDCL, § 51-9-1; SL 1969, ch 11, § 7.1; SL 1970, ch 265, § 40; SL 1988, ch 377, § 132; SDCL, § 51-21-1.
51A-9-2. Investment in bank service corporation.
Any bank shall have power to purchase capital stock, bonds, debentures, or other such obligations of a bank service corporation.
Source: SL 1963, ch 29, § 2; SDCL, § 51-9-3; SL 1969, ch 11, § 7.2; SDCL, § 51-21-2.
51A-9-3. Authority of bank service corporation.
No bank service corporation may engage in any activity other than the performance of bank services for banks.
Source: SL 1963, ch 29, § 3; SDCL, § 51-9-2; SL 1969, ch 11, § 7.3; SDCL, § 51-21-3.
51A-9-4. Ownership of bank or bank holding company stock prohibited.
No bank service corporation may purchase, hold or acquire the capital stock of any state or national bank or of any bank holding company.
Source: SL 1970, ch 265, § 41; SL 1988, ch 377, § 133; SDCL, § 51-21-3.1.
51A-9-5. Examination of bank services.
Any bank services performed by a bank service corporation for any bank, whether on or off the premises of such bank, shall, as to such bank, be subject to regulation and examination to the same extent as if such bank services were performed by the bank itself on the premises of such bank.
Source: SL 1963, ch 29, § 6; SDCL, § 51-9-4; SL 1969, ch 11, § 7.4; SDCL, § 51-21-4.
51A-10-1
"Deposit" or "deposits" defined.
51A-10-2
Minors' accounts.
51A-10-3
Deposits in name of two or more persons.
51A-10-4
Deposits in trust for another.
51A-10-5
Tax liability on payments to survivors of deposits in name of two or more persons
or in trust for another.
51A-10-6
Statement of account between bank and depositor--Limitation on depositor's recourse
after statement rendered.
51A-10-7
Duty of depositor to examine statement of account and vouchers.
51A-10-8
Misdemeanor to certify check where drawer's funds insufficient.
51A-10-9
Preferential deposits.
51A-10-10
Substitution or exchange of securities deposited to qualify as depository for funds of
governmental subdivisions.
51A-10-11
Loans prohibited when reserve deficient.
51A-10-1. "Deposit" or "deposits" defined.
The word "deposit" or "deposits" shall be construed to be the unpaid balance of money or its equivalent, including "deposits subject to check"; "dividends unpaid"; "savings deposits"; "special deposits"; "trust deposits"; "certified checks" and "cashier's checks outstanding"; "demand certificates of deposit"; "time certificates of deposit"; "collections made but not remitted"; and "due to other banks," on which the bank is primarily liable except "overdrafts on correspondents"; or other terms of like import. If any bank has borrowed money on its bills payable, pursuant to a contract which grants permission to the loaning bank to appropriate and to apply any credit balance which the books of the loaning bank show to be due or owing to the borrowing bank, to be credited on such bills payable without regard to the date of maturity thereof, the money received on such bills payable by such borrowing banks shall be deemed "deposits."
Source: SL 1915, ch 102, art 2, § 30; RC 1919, § 8977; SDC 1939, § 6.0412; SDCL, § 51-10-1; SL 1969, ch 11, § 8.1; SL 1970, ch 265, § 42; SL 1988, ch 377, § 134; SDCL, § 51-22-1.
51A-10-2. Minors' accounts.
A bank may operate its deposit account in the name of a minor or in the name of two or more persons, one or more of whom are minors, with the same effect upon its liability as if such minors were of full age.
Source: SL 1909, ch 222, art 2, § 44; SL 1915, ch 102, art 2, § 48; RC 1919, § 8996; SDC 1939, § 6.0413; SDCL, § 51-10-10; SL 1969, ch 11, § 8.3; SDCL, § 51-22-3.
51A-10-3. Deposits in name of two or more persons.
Whenever a deposit has been made or shall hereafter be made, in any bank in the names of two or more persons, payable to any of them or payable to the survivor of them, such deposit or any part thereof, or any interest or dividend thereon, may be paid to any one or more of said persons whether the other be living or not, and the receipt or acquittance of the person or persons so paid shall be a valid and sufficient release and discharge to the bank for any payment so made.
Source: SL 1911, ch 128; RC 1919, § 8997; SDC 1939, § 6.0414; SL 1951, ch 13; SDCL, § 51-10-11; SL 1969, ch 11, § 8.4; SDCL, § 51-22-5.
51A-10-4. Deposits in trust for another.
Whenever any deposit is made in a bank by a person which in form is in trust for another, but no other or further notice of the existence and terms of a legal and valid trust is given in writing to the bank, in the event of the death of the trustee, the deposit or any part thereof, may be paid to the person for whom the deposit was made, together with the dividends or interest thereon, whether or not such person is a minor.
Source: SL 1969, ch 11, § 8.5; SDCL, § 51-22-6.
51A-10-5. Tax liability on payments to survivors of deposits in name of two or more persons or in trust for another.
No bank so paying any such survivor or survivors under §§ 51A-10-3 and 51A-10-4 is liable for any estate, inheritance, or succession taxes due this state.
Source: SL 1969, ch 11, § 8.6; SL 1970, ch 265, § 44; SDCL, § 51-22-7; SL 1992, ch 88, § 13; SL 1993, ch 94, § 7.
51A-10-6. Statement of account between bank and depositor--Limitation on depositor's recourse after statement rendered.
When a statement of account has been rendered by a bank to a depositor accompanied by vouchers, if any, which are the basis for debit entries in such account, or the depositor's passbook has been written up by the bank showing the condition of the depositor's account and delivered to such depositor with like accompaniment of vouchers, if any, such account shall, after a period of six years from the date of its rendition, in the event no objection thereto has been theretofore made by the depositor, be deemed finally adjusted and settled and its correctness conclusively presumed and such depositor shall thereafter be barred from questioning the incorrectness of such account for any cause.
Source: SL 1963, ch 28, § 1; SDCL, § 51-10-19; SL 1969, ch 11, § 8.7; SL 1981, ch 346, § 47; SDCL, § 51-22-8.
51A-10-7. Duty of depositor to examine statement of account and vouchers.
Nothing in § 51A-10-6 shall be construed to relieve the depositor from the duty imposed by law of exercising due diligence in the examination of such account and vouchers, if any, when rendered by the bank and of immediate notification to the bank upon discovery of any error therein, nor from the legal consequences of neglect of such duty; nor to prevent the application of § 57A-4-406 to cases governed thereby.
Source: SL 1963, ch 28, § 2; SDCL, § 51-10-20; SL 1969, ch 11, § 8.7; SL 1970, ch 265, § 45; SDCL, § 51-22-9.
51A-10-8. Misdemeanor to certify check where drawer's funds insufficient.
It is a Class 2 misdemeanor for any officer or employee of any bank to certify any check, draft, or order drawn upon such bank unless the person drawing the same has on deposit an amount of money equal to the amount specified therein. Any check, draft, or order so certified by a duly authorized officer of such bank shall be a good and valid obligation of such bank.
Source: SL 1909, ch 222, art 2, § 34; SL 1915, ch 102, art 2, § 38; RC 1919, § 8986; SDC 1939, § 6.0415; SDCL, § 51-10-13; SL 1969, ch 11, § 8.8; SL 1990, ch 158, § 29; SDCL, § 51-22-10.
51A-10-9. Preferential deposits.
No bank may give preference to any depositor or creditor by pledging the assets of the bank as collateral security except as provided in § 51A-4-13 and as follows:
(1) The bank may deposit with the treasurer of the United States so much of its assets as may be necessary to qualify as a depository for federal funds and bankruptcy court funds;
(2) A bank, in order to qualify as a depository of funds deposited by the state, any political subdivision thereof, including counties, municipalities, townships, and school districts, or by any officer, commission, board, bureau, or agency of the state or political subdivision or any tribal government, shall segregate as security, investment securities as provided in §§ 51A-4-25 and 51A-4-26, or irrevocable standby letters of credit, or a surety bond, in accordance with § 4-6A-3, a sum equal to one hundred percent of the amount deposited in excess of the amount insured by the Federal Deposit Insurance Corporation;
(3) A bank may pledge securities to guarantee deposit of out-of-state municipal, school district, county, or state funds in excess of the amount insured by the federal deposit insurance corporation;
(4) The public deposits preferred by this section are hereby granted a paramount, preferred, and perfected first lien on the bank assets so deposited or segregated or pledged.
Source: SDC 1939, § 6.0418; SL 1941, ch 17; SL 1957, ch 13; SL 1963, ch 25; SDCL §§ 51-10-15 to 51-10-17; SL 1969, ch 11, § 8.10; SL 1974, ch 39, § 16; SL 1982, ch 334, § 4; SL 1986, ch 44, § 14; SL 1987, ch 45, § 3; SDCL § 51-22-12; SL 1991, ch 390, § 7; SL 1992, ch 335; SL 1997, ch 273, § 1; SL 2002, ch 221, § 1.
51A-10-10. Substitution or exchange of securities deposited to qualify as depository for funds of governmental subdivisions.
Any bank pledging such securities pursuant to § 51A-10-9 may substitute or exchange, at any time it deems it advisable or desirable and without concurrence of the depositor, or any officers of such depositors, eligible securities of like nature and character for securities pledged, if:
(1) Such securities so substituted or exchanged shall at the time of such substitution or exchange, have a market value of at least equal to the market value of the securities released; and
(2) In the event of such substitution or exchange, the holder or custodian of the securities shall, on the same day, forward by registered or certified mail to the public deposit protection commission and the depository bank, a receipt specifically describing and identifying both the securities so substituted or exchanged and those released and returned to the depository bank.
Source: SDC 1939, § 6.0418 as added by SL 1957, ch 12; SDCL, § 51-10-18; SL 1969, ch 11, § 8.11; SL 1982, ch 28, § 18; SL 1988, ch 377, § 138; SDCL, § 51-22-13.
51A-10-11. Loans prohibited when reserve deficient.
Whenever the reserve of any bank shall fall below the legal amount required, such bank shall not increase its loans or discounts otherwise than by discounting or purchasing bills of exchange payable at sight or on demand.
Source: SL 1909, ch 222, art 2, § 28; SL 1915, ch 102, art 2, § 32; RC 1919, § 8979; SDC 1939, § 6.0427; SDCL, § 51-10-8; SL 1969, ch 11, § 8.14; SDCL, § 51-22-17.
51A-11-1
Definition of terms.
51A-11-2
Regulation of safe deposit by commission.
51A-11-3
Fiduciary's access to safe deposit.
51A-11-4
Power of attorney.
51A-11-5
Minor's lease of safe deposit.
51A-11-6
Joint leaseholds in safe deposit.
51A-11-7
Death of lessee--Procedures for opening and delivery of contents of safe deposit.
51A-11-7.1
Death of joint lessee or other having right of access--Notification of lessor.
51A-11-8
Corporate lessee.
51A-11-9
Adverse claims to safe deposit.
51A-11-10
Unpaid rental--Procedures for opening safe deposit and disposition of contents.
51A-11-1. Definition of terms.
Terms used in this chapter, unless the context otherwise plainly requires, shall mean:
(1) "Lessee," a person contracting with the lessor for the use of a safe deposit box;
(2) "Lessor," a bank or branch bank which engages in the business of renting safe deposit facilities;
(3) "Safe deposit box," a box, vault, or other receptacle maintained by a lessor in its vault and the purpose of which is to secure the property of a lessee.
Source: SL 1969, ch 11, § 9.1; SDCL, § 51-23-1.
51A-11-2. Regulation of safe deposit by commission.
The leasing of safe deposit boxes by a lessor shall be subject to such rules as the commission may prescribe, and such rules shall be promulgated with a view toward ensuring as much privacy and security to the lessee as sound banking practice will allow.
Source: SL 1969, ch 11, § 9.2; SL 1988, ch 377, § 143; SDCL, § 51-23-2.
51A-11-3. Fiduciary's access to safe deposit.
Where a safe deposit box is made available by a lessor to one or more persons acting as fiduciaries, the lessor may, except as otherwise expressly provided in the lease or the writings pursuant to which such fiduciaries are acting, allow access thereto as follows:
(1) By any one or more of the persons acting as personal representatives;
(2) By any one or more of the persons otherwise acting as fiduciaries when authorized in writing signed by all other persons so acting;
(3) By any agent authorized in writing, signed by all of the persons acting as fiduciaries.
Source: SL 1969, ch 11, § 9.3; SDCL § 51-23-3.
51A-11-4. Power of attorney.
Where a lessor without knowledge of the death or of an adjudication of legal incompetence of the lessee, deals with his agent pursuant to a written power of attorney signed by such lessee, the transaction binds the lessee's estate and the lessee.
Source: SL 1969, ch 11, § 9.4; SDCL, § 51-23-4.
51A-11-5. Minor's lease of safe deposit.
A bank may lease a safe deposit box to and in connection therewith deal with a minor with the same effect as if leasing to and dealing with a person of full legal capacity.
Source: SL 1969, ch 11, § 9.5; SDCL, § 51-23-5.
51A-11-6. Joint leaseholds in safe deposit.
Joint leaseholds in and to a safe deposit box may be created by contract with two or more persons, including minors, named as lessees. The terms of the contract may provide that any one or more of the lessees, or the survivor or survivors of the lessee or lessees shall have access and entry to the safe deposit box and the right to remove the contents from the box whether the other lessee or lessees be living, incompetent, or dead, and in case of such removal the lessor is not liable for the removal. The existence of a joint leasehold agreement in and to a safe deposit box shall in no way affect a determination as to what persons hold title to the contents of such box.
Source: SL 1969, ch 11, § 9.6; SL 1970, ch 265, § 48; SDCL 51-23-6; SL 2000, ch 229, § 17.
51A-11-7. Death of lessee--Procedures for opening and delivery of contents of safe deposit.
If only one lessee is named in the lease agreement covering a safe deposit box rental and such lessee shall die, the safe deposit box may be opened at any time thereafter and all contents may be delivered, without inventory, to the personal representative or special administrator of a deceased lessee, and without liability to the lessor.
In the alternative, after the lessee's death, the safe deposit box may be opened at any time, in the presence of those persons presenting the key thereto and claiming to be interested in the contents thereof, by two employees of the lessor, one of whom shall be an officer of the lessor. The employees may remove all instruments of a testamentary nature and personally deliver or forward them by registered or certified mail to the probate court having apparent jurisdiction. The employees may deliver life insurance policies contained in the box to the beneficiary named in the policies. Any and all other contents of the box so opened shall be kept and retained by the lessor and shall be delivered only to the parties legally entitled to the same.
If no person presents the key to the safe deposit box within six months after the death of the lessee, the lessor, by two employees, one of whom shall be an officer of said lessor, may open the box by forcible entry and remove the contents and deliver the same to the probate court, subject to the payment of rentals, of expenses, and the repairs.
This section applies if all of the lessees under a joint leasehold agreement are deceased.
Source: SL 1969, ch 11, § 9.7; SL 1970, ch 265, § 49; SDCL 51-23-7; SL 2000, ch 229, § 18.
51A-11-7.1. Death of joint lessee or other having right of access--Notification of lessor.
Any person or representative having a right of access to a safe deposit box or other receptacle of similar character shall, upon the death of any other person having a right of access to such box or receptacle, notify the person, firm, partnership, association, limited liability company, joint-stock company, or corporation from whom the box or receptacle is leased or rented of the death of such person prior to accessing the box or receptacle.
Source: SL 2002, ch 222, § 6.
51A-11-8. Corporate lessee.
If the lessee is a corporation and the president, treasurer, or secretary certifies that certain designated persons are authorized to enter the box, the lessor may permit such designated person to enter without liability therefor.
Source: SL 1969, ch 11, § 9.8; SDCL, § 51-23-8.
51A-11-9. Adverse claims to safe deposit.
Adverse claims to the contents of a safe deposit box shall be governed by § 51A-1-3, insofar as such section may be applicable to this chapter.
Source: SL 1969, ch 11, § 9.9; SDCL, § 51-23-9.
51A-11-10. Unpaid rental--Procedures for opening safe deposit and disposition of contents.
If the rental due on a safe deposit box has not been paid for one year, the lessor may send a notice by registered or certified mail to the last known address of the lessee stating that the safe deposit box will be opened and its contents stored at the expense of the lessee unless payment of the rental is made within thirty days. After such time the box may be opened in the presence of an officer of the lessor and a notary public. The notary public shall issue a certificate reciting the name of the lessee, the date of the opening of the box, the names of the witnesses present, and a list of its contents. The certificate with the contents of the box shall be included in a sealed package marked with the lessee's name and date of opening, and it shall then be placed in the general vaults of the lessor at a rental not exceeding the rental previously charged for the box until it is claimed or delivered to the state treasurer for disposal pursuant to chapter 43-41B. The state treasurer shall reimburse the lessor for unpaid box rentals from the proceeds of the package, if any.
Source: SL 1969, ch 11, § 9.10; SL 1970, ch 265, § 50; SL 1974, ch 301, § 2; SL 1982, ch 28, § 18; SDCL, § 51-23-10.
CHAPTER 51A-12
BANK LOANS
51A-12-1 Application to bank loans.
51A-12-2 Loan or credit limitation.
51A-12-2.1 Application for exception to agricultural loan or credit limitation.
51A-12-2.2 Expiration of exception--New exception request.
51A-12-2.3 Loan defined.
51A-12-2.4 Derivative transaction defined.
51A-12-3 51A-12-3. Repealed by SL 1993, ch 351, § 1.
51A-12-4 Loan to customer used for partnership or corporation.
51A-12-5 Discounting not considered as money borrowed for purposes of loan limitation.
51A-12-6 Maximum amount of loans by bank to its executive officers, directors, and certain shareholders.
51A-12-7 51A-12-7. Repealed by SL 1994, ch 365, § 2.
51A-12-8 Liability of officers and directors for excessive loans.
51A-12-9 Nonrisk and government guaranteed loans not included in loan limits.
51A-12-10 Sale of surplus federal reserve funds and excess bank funds not loan.
51A-12-11 Mortgage on real estate.
51A-12-12 Revolving credit authorized.
51A-12-13 Collection of certain credit service charges by bank.
51A-12-14 Right of offset on loans.
51A-12-15 Compounding interest and service fees.
51A-12-16 Security interests authorized.
51A-12-17 Maintenance of deposit as condition for loan.
51A-12-1. Application to bank loans.
This chapter applies to bank loans.
Source: SL 1969, ch 11, § 10.1; SL 1970, ch 265, § 52; SL 1983, ch 13, § 11; SDCL § 51-24-1; SL 2012, ch 252, § 21.
51A-12-2. Loan or credit limitation.
Except as otherwise provided in this title, no bank organized as a corporation or limited liability company may loan, or otherwise extend credit, to any corporation, partnership, or individual, an amount greater than the sum of:
(1) Twenty percent of its capital stock or members' equity and surplus; and
(2) Ten percent of its undivided profit.
Such limit shall be determined for each calendar quarter on the basis of the bank's quarterly report of condition for the immediately previous calendar quarter.
Source: SL 1909, ch 222, art 2, § 29; SL 1915, ch 102, art 2, § 33; RC 1919, § 8980; SL 1923, ch 114; SL 1927, ch 59, § 1; SDC 1939, § 6.0428; SL 1943, ch 18; SL 1947, ch 27; SL 1957, ch 14; SL 1961, ch 19; SL 1963, ch 27; SDCL, § 51-11-7; SL 1969, ch 11, § 10.2; SL 1981, ch 346, § 52; SL 1987, ch 359; SL 1988, ch 377, § 144; SL 1990, ch 382; SDCL, § 51-24-2; SL 2004, ch 289, § 11.
51A-12-2.1. Application for exception to agricultural loan or credit limitation.
A state chartered bank in satisfactory condition, with the consent of its governing board, may request an exception to the loan or credit limitation as provided in § 51A-12-2 from the director. The bank shall apply for such an exception on forms prescribed by the director. The director may approve the exception if the loan is not on the loan watch list or problem loan report of the bank, or classified at the most recent regulatory examination, and the loan shall be:
(1) Fully secured by the fair market value of the collateral and may not exceed one hundred percent of the discounted value assigned by the bank to the collateral;
(2) An agricultural loan in the bank's normal trade area; and
(3) Originated by the requesting bank.
No loan approved under this section may exceed an amount greater than the sum of twenty-five percent of the bank's capital stock or members' equity, surplus, and undivided profits. Such limit shall be determined on the basis of the bank's quarterly report of condition for the immediately previous calendar quarter and remain in effect until the loan expires as provided in § 51A-12-2.2. The aggregate balance of all loans or extensions of credit made by a bank pursuant to this section may not exceed one hundred percent of the bank's tier one leverage capital.
Source: SL 2012, ch 234, § 1.
51A-12-2.2. Expiration of exception--New exception request.
Any exception granted by the director under § 51A-12-2.1 expires when the agricultural operating loan matures or twelve months after the exception is granted, whichever occurs first. A new exception request shall be submitted prior to the renewal of the agricultural operating loan if the loan to be renewed would exceed the loan or credit limitation as provided in § 51A-12-2, unless otherwise approved by the director.
Source: SL 2012, ch 234, § 2.
51A-12-2.3. Loan defined.
For the purpose of calculating loan or credit limitations pursuant to § 51A-12-2, a loan includes any credit exposure to a borrower arising from a derivative transaction, repurchase agreement, reverse repurchase agreement, securities lending transaction, or securities borrowing transaction between a bank and that borrower.
Source: SL 2013, ch 240, § 1.
51A-12-2.4. Derivative transaction defined.
For purposes of § 51A-12-2.3, a derivative transaction is any transaction that is a contract, agreement, swap, warrant, note, or option that is based in whole, or in part, on the value of any interest in, or any quantitative measure or the occurrence of any event relating to interest rates.
Source: SL 2013, ch 240, § 2.
51A-12-4. Loan to customer used for partnership or corporation.
A loan or other extension of credit to a customer, the proceeds of which the customer intends to place in a partnership in which he is a partner or a corporation in which he is a stockholder, is not required to be combined with obligations of the partnership or corporation for the purpose of § 51A-12-2 unless the loan is made in reliance on the assets and repayment ability of the partnership or the corporation.
Source: SL 1969, ch 11, § 10.2; SL 1970, ch 265, § 53; SDCL, § 51-24-4; SL 1993, ch 351, § 2.
51A-12-5. Discounting not considered as money borrowed for purposes of loan limitation.
For the purposes of § 51A-12-2, the discount of bills of exchange drawn in good faith against actual existing values, and the discount of commercial paper actually owned by the person negotiating the same shall not be considered as money borrowed.
Source: SL 1909, ch 222, art 2, § 29; SL 1915, ch 102, art 2, § 33; RC 1919, § 8980; SL 1923, ch 114; SL 1927, ch 59, § 1; SDC 1939, § 6.0428; SL 1943, ch 18; SL 1947, ch 27; SL 1957, ch 14; SL 1961, ch 19; SL 1963, ch 27; SDCL, § 51-11-9; SL 1969, ch 11, § 10.3; SDCL, § 51-24-5.
51A-12-6. Maximum amount of loans by bank to its executive officers, directors, and certain shareholders.
The maximum amount of loans by a bank to its executive officers, its directors, and its shareholders who individually own more than ten percent of the capital stock of the bank or its parent bank holding company, shall be set by rules promulgated by the commission pursuant to chapter 1-26. The commission rule may not be more restrictive than restrictions imposed by that bank's primary federal regulator.
Loans to any partnership or corporation in which such officers, directors, and shareholders own an aggregate interest of twenty percent or more shall be included as a loan to the officers, directors, and shareholders.
Source: SDC 1939, § 6.0429; SDCL, § 51-11-12; SL 1969, ch 11, § 10.5; SL 1979, ch 321, § 2; SL 1981, ch 346, § 53; SL 1988, ch 377, § 147; SDCL, § 51-24-8; SL 1994, ch 365, § 1.
51A-12-8. Liability of officers and directors for excessive loans.
The issuing officer, the chief executive or managing officer and the board of directors of a bank shall be held personally liable for all excessive loans, until they are in compliance, including overdrafts which could create excess. Such liability shall remain in effect for so long as any such loans may be in excess of the amount limited by law.
Source: SL 1909, ch 222, art 2, § 38; SL 1915, ch 102, art 2, § 42; RC 1919, § 8990; SDC 1939, § 6.0431; SDCL, § 51-11-11; SL 1969, ch 11, § 10.6; SL 1981, ch 346, § 55; SL 1988, ch 377, § 149; SDCL, § 51-24-9.
51A-12-9. Nonrisk and government guaranteed loans not included in loan limits.
For the purpose of determining whether a loan is within the loan limits established by this chapter, that portion of a loan described in subdivisions (1), (2) and (3) of this section may not be considered as part of the loan:
(1) That portion of a loan which is secured by a certificate of deposit, time savings certificate or prior evidence of obligation from the bank to the borrower, which obligation is not payable on demand by the borrower;
(2) That portion of a loan secured by bonds, notes, certificates of indebtedness or treasury bills of the United States or by other such obligations, which are backed by the full faith and credit of any department, agency, bureau, board, commission or establishment of the United States or any corporation owned directly or indirectly by the United States;
(3) That portion of a loan secured by unconditional takeout commitments or guarantees of any department, agency, bureau, board, commission or establishment of the state of South Dakota, or of the United States or any corporation owned directly or indirectly by the United States.
Source: SL 1981, ch 346, § 60; SL 1986, ch 402; SDCL, § 51-24-14; SL 1988, ch 377, § 152; SL 1989, ch 411, § 3; SDCL, § 51-24-9.1.
51A-12-10. Sale of surplus federal reserve funds and excess bank funds not loan.
The sale of surplus federal reserve funds and excess bank funds is not considered loans or obligations and are not subject to any limitation based on capital stock and surplus.
Source: SL 1969, ch 11, § 10.4; SDCL, § 51-24-7; SL 1988, ch 377, § 146; SDCL, § 51-24-9.2.
51A-12-11. Mortgage on real estate.
A bank may lend on the security of a first or subsequent mortgage on real estate.
Source: SL 1969, ch 11, § 10.7; SL 1981, ch 346, § 56; SL 1988, ch 377, § 150; SDCL, § 51-24-10.
51A-12-12. Revolving credit authorized.
A bank may extend credit and collect a credit service charge through a revolving loan account arrangement with a debtor which permits the debtor to obtain loans from time to time by cash advances, by the purchase or satisfaction by the bank of obligations of the debtor incurred pursuant to a credit transaction, or otherwise under a credit card, check-credit, overdraft checking or other similar credit plan. A revolving loan account arrangement between a bank located in the State of South Dakota and a debtor shall be governed by the laws of the State of South Dakota.
Source: SL 1969, ch 11, § 10.8; SL 1981, ch 346, § 58; SL 1987, ch 360, § 1; SL 1988, ch 377, § 151; SDCL § 51-24-12; SL 2014, ch 227, § 1.
51A-12-13. Collection of certain credit service charges by bank.
Notwithstanding any other provisions of law, a bank may contract for and collect the following credit service charges in connection with the extensions of credit made pursuant to § 51A-12-12, in an amount agreed to by the bank and the debtor either initially or pursuant to a change in terms authorized in § 54-11-12:
(1) Membership fees, whether assessed on an annual or other periodic basis;
(2) Transaction fees;
(3) Interest charges permitted by § 54-3-1.1;
(4) Charges for exceeding a designated credit limit;
(5) Charges for stopping payment;
(6) Charges for each return of a dishonored check, negotiable order of withdrawal or draft; and
(7) Other charges made in connection with the revolving loan or charge account arrangement.
All of the fees and charges permitted by this section shall be deemed interest. No fee, expense or other charge whatsoever may be taken or received by a bank under a revolving loan or charge account arrangement except as provided in this section.
Source: SL 1987, ch 360, § 2; SDCL, § 51-24-12.1; SL 2021, ch 204, § 6.
51A-12-14. Right of offset on loans.
In addition to the general lien created by § 44-11-11 in favor of a bank on all property in possession of the bank belonging to its customers, a bank may offset against all loan balances, whether principal or interest, owed to the bank by a customer, all or any portion of the bank's obligation to the customer in the form of certificates of deposit, time savings certificates and any other form of deposit.
Source: SL 1981, ch 346, § 61; SDCL, § 51-24-15.
51A-12-15. Compounding interest and service fees.
A bank may compound the interest or service fees charged on loans when disclosed in writing to the borrower.
Source: SL 1981, ch 346, § 62; SDCL, § 51-24-16.
51A-12-16. Security interests authorized.
A credit agreement, or any agreement executed in connection therewith, may provide for the creation of a security interest in any personal or real property, including any goods under such agreement, to secure payment of a debtor's outstanding indebtedness under such agreement.
Source: SL 1983, ch 359, § 1; SDCL, § 51-24-17.
51A-12-17. Maintenance of deposit as condition for loan.
A bank may require a borrower to maintain funds on deposit as a condition precedent to the granting of credit or any loan.
Source: SL 1983, ch 359, § 2; SDCL, § 51-24-18.
51A-13-1
Books and accounts required by director--Civil penalty.
51A-13-2
Reports to director.
51A-13-3
Failure to report--Civil penalty.
51A-13-4
Fiduciary examinations.
51A-13-5
Preservation of records.
51A-13-1. Books and accounts required by director--Civil penalty.
Every bank shall keep such books and accounts as the director may require for the purpose of showing the true condition of the bank, and shall keep accurate, convenient, and complete records of such transactions and accounts in permanent form. Any bank which fails or refuses to open and keep such books or accounts shall be subject to a civil penalty of fifty dollars for each day it violates this section, and the director shall have authority to institute legal proceedings for the recovery of such penalty.
Source: SL 1915, ch 102, art 2, § 21; RC 1919, § 8968; SDC 1939, § 6.0434; SDCL, § 51-12-1; SL 1969, ch 11, § 11.1; SL 1970, ch 265, § 56; SL 1980, ch 24, § 87; SDCL, § 51-25-1.
51A-13-2. Reports to director.
Every bank shall make a report to the director at least once during each calendar year at such times as the director shall require, on forms which he shall prescribe. The director may require additional special reports as frequently as the director deems necessary. The director may accept copies of federal reports to comply with this section.
Source: SDC 1939, § 6.0435; SDCL, §§ 51-12-2, 51-12-5; SL 1969, ch 11, § 11.2; SL 1981, ch 346, § 63; SL 1988, ch 377, § 153; SDCL, § 51-25-2; SL 1995, ch 269, § 1.
51A-13-3. Failure to report--Civil penalty.
Any bank failing to make and transmit to the director any report as required by this title, is subject to a civil penalty of fifty dollars for each day during which such failure continues; and if any bank fails or refuses to pay such penalty, the director shall institute proceedings for the recovery thereof.
Source: SDC 1939, § 6.0435; SDCL, § 51-12-6; SL 1969, ch 11, § 11.4; SL 1970, ch 265, § 58; SL 1980, ch 24, § 88; SDCL, § 51-25-4; SL 1995, ch 269, § 2.
51A-13-4. Fiduciary examinations.
Only summary examinations and reports shall be required with respect to fiduciary activities which are subject to court accountings.
Source: SL 1969, ch 11, § 11.5; SDCL, § 51-25-5.
51A-13-5. Preservation of records.
Every bank shall retain and preserve its bank records and supporting documents for a period of time set forth in rules issued by the commission.
Source: SL 1969, ch 11, § 11.6; SL 1970, ch 265, § 59; SL 1988, ch 377, § 155; SDCL, § 51-25-6.
51A-14-1
Merger or consolidation of banks.
51A-14-2
Purchase of assets and assumption of liabilities.
51A-14-3
Conversion from state bank to national bank.
51A-14-4
Conversion from national bank, federal savings association, or federal savings bank
to state bank.
51A-14-5
Liquidation procedures in the event of reorganization.
51A-14-6
Emergency takeover.
51A-14-7
Valuation of dissident shareholders' stock.
51A-14-1. Merger or consolidation of banks.
A bank authorized under this title may merge or consolidate with another state bank, national bank or savings and loan association organized pursuant to 12 U.S.C. § 1464 as amended as of January 1, 1990. The provisions of §§ 51A-2-16 and 51A-3-7 to 51A-3-12, inclusive, govern applications for mergers and consolidations.
Source: SL 1909, ch 222, art 2, § 24; SL 1911, ch 255, § 31; SL 1915, ch 102, art 2, § 27; RC 1919, §§ 8974, 9061; SDC 1939, § 6.0404; SDCL § 51-13-1; SL 1969, ch 11, § 12.1; SL 1979, ch 325; SL 1981, ch 346, § 64; SL 1988, ch 377, § 156; SL 1990, ch 383, § 1; SDCL § 51-26-1; SL 2012, ch 252, § 22.
51A-14-2. Purchase of assets and assumption of liabilities.
A bank may purchase the assets and assume the liabilities of another state bank, national bank or savings and loan association organized pursuant to 12 U.S.C. § 1464 as amended as of January 1, 1990. The provisions of §§ 51A-2-16 and 51A-3-7 to 51A-3-12, inclusive, govern such applications.
Source: SL 1981, ch 346, § 65; SDCL § 51-26-4; SL 1988, ch 377, § 159; SL 1990, ch 383, § 2; SDCL § 51-26-1.1; SL 2012, ch 252, § 23.
51A-14-3. Conversion from state bank to national bank.
Any bank may make application for reorganization as a national bank under the laws of the United States. The bank shall forward to the director a copy of a resolution of the board of directors to convert to a national bank. In the event such bank secures a certificate from the comptroller of the currency authorizing it to transact business as a national bank, such national bank shall take and hold all the assets, real and personal, of such state bank, subject to all liabilities existing against such bank at the time of such reorganization, and shall immediately notify the director of such reorganization and transfer. At the time of reorganization, the directors of such bank shall institute proceedings to dissolve legally the old state bank charter in the same manner as provided herein for dissolution under voluntary liquidation.
Source: SL 1909, ch 222, art 2, § 22; SL 1915, ch 102, art 2, § 25; RC 1919, § 8972; SDC 1939, § 6.0406; SDCL, § 51-13-2; SL 1969, ch 11, § 12.2; SL 1988, ch 377, § 157; SDCL, § 51-26-2.
51A-14-4. Conversion from national bank, federal savings association, or federal savings bank to state bank.
Any national bank, federal savings association, or federal savings bank that desires to take the necessary steps to effect dissolution as a national bank, a federal savings association or a federal savings bank with the federal regulatory authority having jurisdiction may make application to the director to reorganize as a state bank. An application for conversion to a state bank shall consist of a letter of intent signed by a majority of the institution's board of directors together with any additional information required by the director. The stockholders of the national bank, federal savings association, or federal savings bank shall make, execute, and acknowledge articles of incorporation as required by this title. Upon receipt of an application for approval of a conversion, the director shall conduct such investigation as he may deem necessary to ascertain whether:
(1) The letter of intent and supporting items satisfy the requirements of this title;
(2) The plan of conversion adequately protects the interests of depositors;
(3) The requirements for a conversion under all applicable laws have been satisfied, and the resulting state bank would satisfy the requirements for banks authorized by this title; and
(4) The resulting state bank will possess an adequate capital structure.
Upon filing and approval of such articles as provided by this title, and upon the issuance of a certificate of authority by the director as provided herein, the institution may transact business as a state bank, and thereupon all assets, real and personal, of the dissolved national bank, federal savings association, or federal savings bank shall be vested in and become the property of the state bank.
Source: SDC 1939, § 6.0407; SDCL § 51-13-3; SL 1969, ch 11, § 12.3; SL 1988, ch 377, § 158; SDCL § 51-26-3; SL 1993, ch 352; SL 2012, ch 252, § 24.
51A-14-5. Liquidation procedures in the event of reorganization.
If a bank has been merged or consolidated with another bank or the bank's assets have been purchased and the bank's liabilities assumed by another bank, in any instance other than an emergency, within thirty days thereafter, the directors of the bank shall institute proceedings to legally dissolve the bank's charter in the same manner as provided for voluntary liquidation in chapter 51A-15. However, no notice need be given pursuant to § 51A-15-3. Approval by the director of the merger, consolidation, or purchase of assets and assumption of liabilities constitutes approval of the voluntary liquidation as provided in § 51A-15-1. However, the approval is subject to approval of the proposal to liquidate and dissolve by a vote of two-thirds of the outstanding stock of the liquidating bank at a meeting called for the purpose of considering such action.
Source: SL 1981, ch 346, § 66; SL 1988, ch 377, § 160; SL 1989, ch 411, § 4; SDCL § 51-26-5; SL 2015, ch 239, § 8.
51A-14-6. Emergency takeover.
If the director, pursuant to § 51A-15-21, or if the commission deems it necessary that a state bank, national bank, or savings and loan association organized pursuant to 12 U.S.C. § 1464 as amended as of January 1, 1990, be merged, consolidated, or its assets purchased and its liabilities assumed in order to protect the depositors and the public from unsound practices, and another bank is willing to merge, consolidate, or purchase the assets and assume the liabilities of such financial institution, the commission may declare that such merger, consolidation, or purchase of assets and assumption of liabilities shall constitute an emergency takeover. The commission may waive any requirement, whether by law or by rule, relative to required application materials, thoroughness of the director's investigation, and length of time before the commission may act. Nothing in this section limits in any way the rights of shareholders of either financial institution to approve the transaction and the manner required by state or federal law.
Source: SL 1981, ch 346, § 67; SL 1988, ch 377, § 161; SL 1990, ch 383, § 3; SDCL § 51-26-6; SL 2012, ch 252, § 25.
51A-14-7. Valuation of dissident shareholders' stock.
The provisions of §§ 47-1A-1107 to 47-1A-1107.4, inclusive, and §§ 47-1A-1302 to 47-1A-1331.2, inclusive, apply when establishing the valuation of shares of bank stock owned by dissident shareholders.
Source: SL 1984, ch 317; SL 1988, ch 377, § 162; SDCL, § 51-26-7; SL 2005, ch 202, § 17.
51A-15-1
Voluntary liquidation--Requirements for approval.
51A-15-2
Ceasing to do business and winding up affairs on voluntary liquidation.
51A-15-3
Notice of voluntary liquidation--Manner of publication--Contents.
51A-15-4
Resignation of fiduciary positions and settlement of accounts on voluntary
liquidation.
51A-15-5
Disposition of safe deposit on voluntary liquidation.
51A-15-6
Depositor's or creditor's rights not impaired by voluntary liquidation--Return of safe
deposit rental.
51A-15-7
Distribution of assets after discharge of obligations on voluntary liquidation--Disposition of unclaimed distributions.
51A-15-8
Authority of director to take possession of bank in voluntary liquidation.
51A-15-9
Reports of progress in voluntary liquidation--Order and certificate of dissolution.
51A-15-10
Cancellation of voluntary liquidation.
51A-15-11
Director's authority to suspend activities and take possession of bank--Grounds.
51A-15-12
"Insolvent" defined.
51A-15-13
Receipt of deposits by insolvent bank unlawful--Felony.
51A-15-14
Notice of suspension and possession.
51A-15-15
Management and control powers of director in possession.
51A-15-16
Circuit court jurisdiction of proceedings--Venue.
51A-15-17
Change of venue.
51A-15-18
Director's appointment of Federal Deposit Insurance Corporation as receiver in
liquidation proceedings.
51A-15-19
Powers of Federal Deposit Insurance Corporation as receiver in liquidation
proceedings--Actions to recover money damages.
51A-15-20
Postponement of limitation periods on director's taking actions.
51A-15-21
Director's authority to take action in emergency without majority consent of
commission.
51A-15-22
Applications to enjoin director from suspending activities and taking possession of
bank.
51A-15-23
Proceedings exempt from open meetings and administrative procedure laws.
51A-15-24
Reorganization of bank by director--Distribution and effect of reorganization plan.
51A-15-25
Execution of lien on assets of bank in director's or receiver's possession prohibited--Powers of director.
51A-15-26
Borrowing money by director in possession.
51A-15-27
Expenses of director paid from assets.
51A-15-28
Requirements for adoption of reorganization plan.
51A-15-29
Modification of reorganization plan or liquidation of bank--Grounds and notice
requirements.
51A-15-30
Limitations on powers of director or receiver in liquidating bank.
51A-15-31
Executory contracts of bank terminated after commencement of liquidation.
51A-15-32
Fiduciary positions of bank terminated after commencement of liquidation.
51A-15-33
Subrogation rights of Federal Deposit Insurance Corporation in liquidation of bank.
51A-15-34
Notice of liquidation by director or receiver.
51A-15-35
Disposition of safe deposit boxes in liquidation by director or receiver.
51A-15-36
Settlement of claims by director or receiver in liquidation proceedings.
51A-15-37
Objections to schedule of determinations in settlement of claims.
51A-15-38
Partial distributions to claim holders authorized--Final distribution.
51A-15-1. Voluntary liquidation--Requirements for approval.
Any bank may file an application with the commission to voluntarily liquidate and dissolve. Such application may be approved by the commission upon finding:
(1) The proposal to liquidate and dissolve has been approved by a vote of two-thirds of the outstanding voting stock at a meeting called for the purpose of considering such action.
(2) The bank is solvent and has sufficient liquid assets to forthwith pay off depositors and creditors.
Source: SL 1969, ch 11, § 13.1; SL 1970, ch 265, § 60; SL 1988, ch 377, § 163; SDCL, § 51-27-1.
51A-15-2. Ceasing to do business and winding up affairs on voluntary liquidation.
Upon approval by the commission, pursuant to § 51A-15-1, a bank shall forthwith cease to do business, shall have only the powers necessary to effect an orderly liquidation and shall proceed to pay its depositors and creditors and to wind up its affairs.
Source: SL 1969, ch 11, § 13.2; SDCL, § 51-27-2.
51A-15-3. Notice of voluntary liquidation--Manner of publication--Contents.
Within thirty days of the approval, a notice of voluntary liquidation shall be:
(1) Mailed to the last known post-office address of each depositor, creditor, person interested in funds held as a fiduciary, lessee of a safe deposit box or bailor of property;
(2) Posted conspicuously on the premises of the bank; and
(3) Published as the director shall require.
The bank shall mail with the notice a statement of the amount shown on its books to be the claim of the depositor or creditor. The notice shall also demand that property held by the bank as bailee or in a safe deposit box be withdrawn by the person entitled thereto within thirty days. The notice shall direct that objections of depositors and creditors, if the amount claimed differs from that in such statement be filed with the bank before a specified date which shall not be less than sixty days from the date of first publication in accordance with the procedure described therein. The notice shall also include such other information as the director or the bank may deem pertinent.
Source: SL 1969, ch 11, § 13.2 (2); SL 1970, ch 265, § 61; SDCL, § 51-27-3.
51A-15-4. Resignation of fiduciary positions and settlement of accounts on voluntary liquidation.
As soon after approval as may be practicable the bank shall resign all fiduciary positions and take such action as may be necessary to settle its fiduciary accounts.
Source: SL 1969, ch 11, § 13.2 (3); SDCL, § 51-27-4.
51A-15-5. Disposition of safe deposit on voluntary liquidation.
The contents of safe deposit boxes which have not been removed within thirty days after demand shall be opened and the contents dealt with in the manner provided for boxes upon which the payment of rental is in default and the sealed packages containing the contents and the certificates together with any other unclaimed property held by the bank as bailee and certified inventories thereof shall be transferred to the state treasurer who shall retain it for one year unless sooner claimed by the person entitled thereto. After one year the state treasurer shall dispose of the property pursuant to chapter 43-41B.
Source: SL 1969, ch 11, § 13.2 (4); SL 1974, ch 301, § 3; SDCL, § 51-27-5.
51A-15-6. Depositor's or creditor's rights not impaired by voluntary liquidation--Return of safe deposit rental.
The approval of an application for voluntary liquidation shall not impair any right of a depositor or creditor to payment in full and all lawful claims of creditors and depositors shall promptly be paid. The unearned portion of the rental of a safe deposit box shall be returned to the lessee.
Source: SL 1969, ch 11, § 13.2 (5); SL 1970, ch 265, § 62; SDCL, § 51-27-6.
51A-15-7. Distribution of assets after discharge of obligations on voluntary liquidation--Disposition of unclaimed distributions.
Any assets remaining after the discharge of all obligations shall be distributed to the stockholders in accordance with their respective interests. No such distribution shall be made before:
(1) All claims of depositors and creditors have been paid, or, in the case of any disputed claim, the bank has transmitted to the director a sum adequate to meet any liability that may be judicially determined;
(2) Any funds payable to a depositor or creditor and unclaimed have been transmitted to the state treasurer; and
(3) Approved by the director.
Any unclaimed distribution to a stockholder or depositor shall be held until ninety days after the final distribution and then transmitted to the state treasurer for disposition pursuant to chapter 43-41B.
Source: SL 1969, ch 11, § 13.2 (6); SL 1970, ch 265, § 63; SL 1974, ch 301, § 4; SDCL, § 51-27-7.
51A-15-8. Authority of director to take possession of bank in voluntary liquidation.
Where a bank has commenced voluntary liquidation and the director finds that the assets will be insufficient for the full discharge of all obligations or that completion of the liquidation has been unduly delayed, he may take possession and complete the liquidation in the manner provided in this chapter for involuntary liquidations.
Source: SL 1969, ch 11, § 13.3; SDCL, § 51-27-8.
51A-15-9. Reports of progress in voluntary liquidation--Order and certificate of dissolution.
The director may require reports of the progress of a bank engaged in voluntary liquidation and whenever he is satisfied that the liquidation has been properly completed he shall cancel the charter and enter an order of dissolution. The filing of a certified copy of such order with the secretary of state shall be deemed authority for the issuance of a certificate of dissolution.
Source: SL 1969, ch 11, § 13.4; SL 1970, ch 265, § 64; SDCL, § 51-27-9; SL 2005, ch 202, § 19.
51A-15-10. Cancellation of voluntary liquidation.
A bank may, at any time prior to the director's cancellation of its charter, revoke its intention to voluntarily liquidate under § 51A-15-1, if it receives approval of its action upon an affirmative vote of at least two-thirds of the voting shares of the bank. Written evidence of its intentions delivered to the director prior to cancellation are considered an effective revocation.
Source: SL 1988, ch 377, § 164; SDCL, § 51-27-9.1.
51A-15-11. Director's authority to suspend activities and take possession of bank--Grounds.
After a hearing with three days' oral or written notice to a majority of the members of the board of directors, the director may, with the consent of a majority of the members of the commission, suspend all activities and take possession of the business and property of a bank if the director finds:
(1) The bank's capital is impaired or the bank is otherwise in an unsound condition;
(2) The bank's business is being conducted in an unlawful or unsound manner;
(3) The bank is unable to continue normal operations;
(4) The bank refuses to permit, obstructs, or impedes an examination as provided in § 51A-2-18;
(5) The bank places its affairs and assets under the control of the director;
(6) A parent corporation refuses to permit, obstructs, or impedes an examination as provided in § 51A-2-37;
(7) The bank is insolvent; or
(8) The bank's insurance has been terminated pursuant to an action initiated by the Federal Deposit Insurance Corporation under 12 U.S.C. § 1818(a), as of January 1, 2015.
Source: SL 1909, ch 222, art 1, § 9; SL 1909, ch 222, art 2, § 20; SL 1911, ch 256, §§ 9, 26; SL 1915, ch 102, art 1, § 9; SL 1915, ch 102, art 2, § 23; RC 1919, §§ 8925, 8970, 9056; SDC 1939, § 6.0604; SDCL § 51-14-11; SL 1969, ch 11, § 13.5; SL 1970, ch 265, § 65; SL 1981, ch 346, § 68; SL 1982, ch 336, § 2; SL 1988, ch 377, § 165; SDCL § 51-27-10; SL 2015, ch 239, § 9.
51A-15-12. "Insolvent" defined.
"Insolvent" means incapable of meeting the demands of creditors or having liabilities which exceed assets.
Source: SL 1982, ch 336, § 1; SDCL, § 51-27-10.1.
51A-15-13. Receipt of deposits by insolvent bank unlawful--Felony.
No bank may receive any deposit when insolvent. No officer, director or employee who knows, or in the proper performance of his duty should know, of such insolvency may receive or authorize the receipt of such deposit. Any person violating this section shall be guilty of a Class 5 felony.
Source: SL 1891, ch 27, § 25; RCivC 1903, § 871; SL 1909, ch 222, art 2, § 45; SL 1911, ch 255, § 12; SL 1915, ch 102, art 2, § 49; RC 1919, §§ 8998, 9042; SDC 1939, § 6.9909; SDCL, § 51-10-3; SL 1969, ch 11, § 1.7; SL 1970, ch 265, § 1; SL 1980, ch 24, § 77; SDCL, § 51-15-7; SL 1988, ch 377, § 6; SDCL, § 51-27-10.2.
51A-15-14. Notice of suspension and possession.
The director shall suspend the activities and take possession pursuant to § 51A-15-11 or 51A-15-21 by posting upon the premises a notice reciting that all activities shall be suspended and that the director is assuming possession pursuant to this chapter and the time, not earlier than the posting of the notice, when the director's possession is deemed to commence. The notice shall also be posted to the division's website. The director shall notify the appropriate federal reserve bank of an action to take possession of any bank which is a member of the federal reserve system.
Source: SL 1969, ch 11, § 13.6(1); SL 1988, ch 377, § 166; SDCL § 51-27-11; SL 2012, ch 252, § 26; SL 2015, ch 239, § 10.
51A-15-15. Management and control powers of director in possession.
When the director has taken possession he shall be vested with the full and exclusive power of management and control, including the power to assess outstanding capital stock, continue or to discontinue the business, to stop or to limit the payment of its obligations, to employ any necessary assistants, to execute any instrument in the name of the bank, to commence, defend and conduct in its name any action or proceeding in which it may be a party, to terminate his possession by restoring the bank to its board of directors and to reorganize or liquidate the bank in accordance with this chapter. As soon as practicable after taking possession the director shall make an inventory of the assets and file a copy thereof with the circuit court.
Source: SL 1911, ch 256, §§ 11, 14; SL 1915, ch 102, art 1, §§ 12, 15; RC 1919, §§ 8928, 8931; SL 1931, ch 88; SDC 1939, §§ 6.0607, 6.0608; SDCL, §§ 51-14-19, 51-14-22; SL 1969, ch 11, § 13.6 (2); SDCL, § 51-27-12.
51A-15-16. Circuit court jurisdiction of proceedings--Venue.
The circuit court shall have original jurisdiction over all proceedings brought under this chapter. The venue of such proceedings shall be in the county in which the bank's principal place of business is located.
Source: SL 1909, ch 222, art 2, § 25; SL 1915, ch 102, art 2, § 28; RC 1919, § 8975; SDC 1939, § 6.0601; SDCL, § 51-14-3; repealed SL 1969, ch 11, § 14.1; re-enacted SL 1970, ch 265, § 76; SDCL, § 51-27-12.1.
51A-15-17. Change of venue.
At any time after the commencement of a proceeding under this chapter, the director may apply to the court for an order changing the venue to any other county of this state in which he deems that such proceeding may be most economically and efficiently conducted.
Source: SL 1970, ch 265, § 76; SDCL, § 51-27-12.2.
51A-15-18. Director's appointment of Federal Deposit Insurance Corporation as receiver in liquidation proceedings.
The director may appoint the Federal Deposit Insurance Corporation as receiver for a bank of which he has taken possession. Upon filing with the court an order of appointment of the receiver and a certificate indicating the acceptance by the Federal Deposit Insurance Corporation, the possession of all the assets, business, and property, and the title thereto, shall be deemed transferred to such corporation. The director shall be forever thereafter relieved from all responsibility and liability in respect to the liquidation of the bank.
Source: SL 1935, ch 60, §§ 1, 7, 8; SDC 1939, § 6.0626; SDCL, §§ 51-14-15, 51-14-17; SL 1969, ch 11, § 13.25; SL 1970, ch 265, § 74; SDCL, § 51-27-37; SL 1988, ch 377, § 187; SDCL, § 51-27-12.3.
51A-15-19. Powers of Federal Deposit Insurance Corporation as receiver in liquidation proceedings--Actions to recover money damages.
The Federal Deposit Insurance Corporation may liquidate, reorganize, merge, or consolidate the bank in such manner as is permitted by the laws of the United States or by this chapter, possessing all rights, powers, duties, and obligations of the commission and director as therein set forth including the right to operate the trust department of any such bank which is qualified to do the business of a trust company.
A claim, proceeding, or action seeking to recover money damages may not be brought by the State of South Dakota, the Division of Banking, the Federal Deposit Insurance Corporation, Resolution Trust Corporation, or other federal banking regulatory agency against any director or officer, including any former director or officer, of any insured state chartered or federally chartered bank or financial depository institution as defined in the Financial Institutions Reform, Recovery and Enforcement Act of 1989, or bank chartered pursuant to Title 51A and its predecessors, unless such claim or action arises out of the gross negligence, or willful or intentional misconduct of such officer or director during his term of office with such insured financial institution. The provisions of this section shall be retroactive.
Source: SDC 1939, § 6.0626; SDCL, § 51-14-16; SL 1969, ch 11, § 13.25; SL 1970, ch 265, § 75; SDCL, §§ 51-27-12.4, 51-27-38; SL 1993, ch 353.
51A-15-20. Postponement of limitation periods on director's taking actions.
When the director has caused the suspension and taken possession of a bank, there shall be a postponement until six months after the commencement of such possession actions of the date upon which any period of limitation fixed by a statute or agreement would otherwise expire on a claim or right of action of the bank, or upon which an appeal must be taken or a pleading or other document must be filed by the bank in any pending action or proceeding.
Source: SL 1969, ch 11, § 13.6 (3); SL 1988, ch 377, § 167; SDCL, § 51-27-13.
51A-15-21. Director's authority to take action in emergency without majority consent of commission.
If, in the opinion of the director, an emergency exists which will result in serious losses to the depositors and creditors, he may suspend all activities and take possession of a bank without the consent of a majority of the members of the commission.
Source: SL 1969, ch 11, § 13.7 (1); SL 1982, ch 336, § 3; SL 1988, ch 377, § 168; SDCL, § 51-27-14.
51A-15-22. Applications to enjoin director from suspending activities and taking possession of bank.
Within three days after the director has suspended and taken possession of the property and business of a bank, that bank may apply to the circuit court to enjoin further proceedings. The court, after requiring the director to show cause why further proceedings should not be enjoined and after a hearing and a determination upon the merit of the facts, may dismiss the application, or may enjoin the director from further proceedings, and may void any appointment of a receiver, and direct him or the receiver to surrender the property and business to the bank. This section provides the exclusive method for challenging the actions of the director under this chapter.
Source: SL 1969, ch 11, § 13.7 (2); SL 1970, ch 265, § 66; SL 1982, ch 336, § 4; SL 1988, ch 377, § 169; SDCL, § 51-27-15.
51A-15-23. Proceedings exempt from open meetings and administrative procedure laws.
Proceedings under chapter 51A-15 are exempt from the provisions of chapters 1-25 and 1-26.
Source: SL 1982, ch 336, § 6; SDCL, §§ 51-27-15.1, 51-27-40.
51A-15-24. Reorganization of bank by director--Distribution and effect of reorganization plan.
If the director of the Division of Banking determines to reorganize a bank he shall enter an order proposing a reorganization plan. A copy of the plan shall be sent to each depositor and creditor who will not receive payment of his claim in full under the plan together with notice that the director will proceed to effect the reorganization unless, within fifteen days, the plan is disapproved in writing by persons holding one-third or more of the aggregate amount of those claims. A department, agency, or political subdivision of this state holding a claim which will not be paid in full is authorized to participate as any other creditor.
Source: SL 1969, ch 11, § 13.7 (3); SL 1982, ch 336, § 5; SDCL, § 51-27-16.
51A-15-25. Execution of lien on assets of bank in director's or receiver's possession prohibited--Powers of director.
No judgment, lien or attachment may be executed upon any asset of the bank while it is in possession of the director. Upon the election of the director or receiver in connection with a liquidation or reorganization:
(1) Any lien or attachment, other than an attorney's or mechanic's lien, obtained upon any asset of the bank during the director's possession or within four months prior to commencement thereof shall be vacated except liens created by the director while in possession.
(2) Any transfer of an asset of the bank made after or in contemplation of its insolvency with intent to effect a preference shall be voided.
Source: SL 1909, ch 222, art 1, § 12; SL 1911, ch 256, § 25; SL 1915, ch 102, art 1, § 22; RC 1919, § 8938; SL 1925, ch 94; SL 1929, ch 74; SDC 1939, § 6.0620; SDCL, § 51-14-30; SL 1969, ch 11, § 13.8; SL 1988, ch 377, § 170; SDCL, § 51-27-17.
51A-15-26. Borrowing money by director in possession.
With the approval of the commission, the director may borrow money in the name of the bank in his possession and may pledge its assets as security for the loan.
Source: SL 1933, ch 54, § 1; SDC 1939, § 6.0629; SDCL, § 51-14-25; SL 1969, ch 11, § 13.9; SDCL, § 51-27-18.
51A-15-27. Expenses of director paid from assets.
All necessary and reasonable expenses of the director's suspension and taking possession of a bank and of its reorganization or liquidation shall be paid from the assets thereof.
Source: SL 1911, ch 256, § 15; SL 1915, ch 102, art 1, § 14; SL 1917, ch 140, § 4; RC 1919, § 8930; SL 1925, ch 93, § 2; SDC 1939, § 6.0619; SL 1941, ch 18; SDCL, § 51-14-51; SL 1969, ch 11, § 13.10; SL 1970, ch 265, § 67; SL 1988, ch 377, § 171; SDCL, § 51-27-19.
51A-15-28. Requirements for adoption of reorganization plan.
No plan of reorganization may be prescribed under this chapter unless, in the opinion of the director or receiver:
(1) The plan is feasible and fair to all classes of depositors, creditors and stockholders;
(2) The face amount of the interest accorded to any class of depositors, creditors or stockholders under the plan does not exceed the value of the assets upon the liquidation less the full amount of the claims of all prior classes, subject, however, to any fair adjustment for new capital that any class will pay under the plan;
(3) The plan provides for the issuance of common stock in an amount that will provide an adequate ratio to assets;
(4) Any exchange of new common stock for obligations or stock of the bank will be effected in inverse order to the priorities in liquidation of the classes that will retain an interest in the bank and upon terms that fairly adjust any change in the relative interests of the respective classes that will be produced by the exchange;
(5) The plan assures the removal of any director, officer or employee responsible for any unsound or unlawful action or the existence of any unsound condition;
(6) Any merger or consolidation provided by the plan conforms to the requirement of this title.
Source: SL 1969, ch 11, § 13.11; SL 1970, ch 20, § 1 (5); SL 1988, ch 377, § 172; SDCL, § 51-27-20.
51A-15-29. Modification of reorganization plan or liquidation of bank--Grounds and notice requirements.
Whenever in the course of reorganization supervening conditions render a plan of reorganization unfair or its execution impractical, the director may modify the plan or liquidate the bank. Any such action shall be taken by order upon reasonable notice.
Source: SL 1969, ch 11, § 13.12; SL 1970, ch 265, § 68; SDCL, § 51-27-21.
51A-15-30. Limitations on powers of director or receiver in liquidating bank.
In liquidating a bank the director or receiver may exercise any power thereof but he may not, without the approval of the circuit court:
(1) Sell any asset of the bank having an appraised value in excess of five thousand dollars;
(2) Compromise or release any claim which exceeds five thousand dollars, exclusive of interest; or
(3) Make any payment on any claim, other than a claim upon an obligation incurred by the director or receiver, before preparing and filing a schedule of his determinations in accordance with subdivision 51A-15-36 (3).
Source: SL 1925, ch 103, §§ 1 to 3; SDC 1939, § 6.0614; SDCL, § 51-14-37; SL 1969, ch 11, § 13.13; SL 1988, ch 377, § 173; SDCL, § 51-27-22.
51A-15-31. Executory contracts of bank terminated after commencement of liquidation.
Within six months of the commencement of involuntary liquidation, the director or receiver may by his election terminate any executory contract for services or advertising to which a bank is a party or any obligation of a bank as a lessee. A lessor who receives sixty days' notice of the director's or receiver's election to terminate such a lease shall have no claim for rent other than rent accrued to the date of termination nor for damages for such termination.
Source: SL 1969, ch 11, § 13.14; SL 1970, ch 265, § 69; SL 1988, ch 377, § 174; SDCL, § 51-27-23.
51A-15-32. Fiduciary positions of bank terminated after commencement of liquidation.
As soon after the commencement of involuntary liquidation as is practicable, the director or receiver shall take the necessary steps to terminate all fiduciary positions held by a bank and take such action as may be necessary to surrender all property held by such bank as a fiduciary and to settle its fiduciary accounts.
Source: SL 1969, ch 11, § 13.15; SL 1970, ch 265, § 70; SL 1988, ch 377, § 175; SDCL, § 51-27-24.
51A-15-33. Subrogation rights of Federal Deposit Insurance Corporation in liquidation of bank.
The right of any agency of the United States insuring deposits of a bank in liquidation, to be subrogated to the rights of depositors upon payment of their claim shall not be less extensive than the law of the United States requires as a condition of the authority to issue such insurance or make such payment.
Source: SL 1969, ch 11, § 13.16; SDCL, § 51-27-25.
51A-15-34. Notice of liquidation by director or receiver.
As soon after commencement of liquidation by the director or receiver as practicable, he shall proceed as in § 51A-15-3 relating to voluntary liquidation by banks, except that no notice need be sent relating to fiduciary accounts as therein mentioned.
Source: SL 1969, ch 11, § 13.17; SL 1988, ch 377, § 176; SDCL, § 51-27-26.
51A-15-35. Disposition of safe deposit boxes in liquidation by director or receiver.
Safe deposit boxes in banks being liquidated by the director, the contents of which have not been removed before the date specified, shall be disposed of by the director or receiver as in § 51A-15-5.
Source: SL 1969, ch 11, § 13.18; SL 1988, ch 377, § 177; SDCL, § 51-27-27.
51A-15-36. Settlement of claims by director or receiver in liquidation proceedings.
Within six months after the last day specified in the notice for the filing of claims or such longer period as may be allowed by the circuit court, the director or receiver shall:
(1) Reject any claim determined to be invalid;
(2) Determine the amount, if any, owing to each known creditor or depositor and the priority class of his claim under this chapter;
(3) Prepare a schedule of such determinations for filing in the circuit court; and
(4) Provide for legal publication in such newspapers as he shall determine, once a week for three successive weeks a notice of the time when and where the schedule of determinations will be available for inspection; and the date, not sooner than thirty days thereafter, when the director or receiver will file his schedule in court.
Source: SL 1911, ch 256, § 13; SL 1915, ch 102, art 1, § 17; RC 1919, § 8933; SDC 1939, § 6.0611; SDCL, §§ 51-14-33, 51-14-34; SL 1969, ch 11, § 13.19; SL 1970, ch 265, § 71; SL 1988, ch 377, § 178; SDCL, § 51-27-28.
51A-15-37. Objections to schedule of determinations in settlement of claims.
Within twenty days after the filing of the schedule, pursuant to subdivision 51A-15-36 (3) any creditor, depositor or stockholder may file with the circuit court an objection to any determination made. Any objections so filed shall be heard and determined by the court, upon such notice to the director or receiver and interested claimants as the court may prescribe. If the objection is sustained the court shall direct an appropriate modification of the schedule.
Source: SL 1915, ch 102, art 1, § 17; RC 1919, § 8933; SDC 1939, § 6.0611; SDCL, § 51-14-35; SL 1969, ch 11, § 13.20; SL 1970, ch 265, § 72; SL 1988, ch 377, § 179; SDCL, § 51-27-29.
51A-15-38. Partial distributions to claim holders authorized--Final distribution.
After filing his schedule the director or receiver may, from time to time, make partial distribution to the holders of claims which are undisputed or have been allowed by the court, if a proper reserve is established for the payment of disputed claims. As soon as is practicable after the determination of all objections the director or receiver shall make final distribution.
Source: SL 1911, ch 256, §§ 16, 21, 22; SL 1915, ch 102, art 1, §§ 18 to 20; RC 1919, §§ 8934 to 8936; SL 1919, ch 118; SDC 1939, § 6.0618; SDCL, § 51-14-53; SL 1969, ch 11, § 13.20; SL 1988, ch 377, § 180; SDCL, § 51-27-30.
51A-15-39. Priority of claims in liquidation proceedings.
The following claims shall have priority:
(1) First, public deposits that are subject to chapter 4-6A and § 51A-10-9;
(2) Then, obligations incurred by the director or receiver;
(3) Then, total deposits of each depositor;
(4) Then, all taxes due on a pro rata basis;
(5) Then, wages and salaries of officers and employees earned during the three-month period preceding the director's possession in an amount not exceeding the normal amount of compensation due;
(6) Then, fees and assessments due to the division on a pro rata basis;
(7) Then, all other claims on a pro rata basis exclusive of claims by holders of capital notes and debentures.
Source: SL 1969, ch 11, § 13.21 (1); SL 1988, ch 377, § 181; SL 1989, ch 411, § 5; SDCL, § 51-27-31.
51A-15-40. Payment of claims not filed within time prescribed.
After the payment of all claims filed within the time prescribed by § 51A-15-36 the director or receiver shall pay all other legal claims.
Source: SL 1969, ch 11, § 13.21 (2); SL 1988, ch 377, § 182; SDCL, § 51-27-32.
51A-15-41. Prorata payment of claims authorized.
If the sum available for any class is insufficient to provide payment in full, such sum shall be distributed to the claimants in the class on a pro rata basis.
Source: SL 1969, ch 11, § 13.21 (3); SL 1988, ch 377, § 183; SDCL, § 51-27-33.
51A-15-42. Distribution of assets remaining after liquidation.
When the director or receiver has liquidated a bank, any assets remaining after all claims have been paid shall be distributed to the stockholders in accordance with their respective interests.
Source: SL 1911, ch 256, § 19; SL 1915, ch 102, art 1, § 24; RC 1919, § 8940; SDC 1939, § 6.0630; SDCL, § 51-14-64; SL 1969, ch 11, § 13.22; SL 1988, ch 377, § 184; SDCL, § 51-27-34.
51A-15-43. Disposition of unclaimed funds after liquidation.
Unclaimed funds remaining after the completion of the liquidation shall be transferred to the state treasurer for disposal pursuant to chapter 43-41B.
Source: SDC 1939, § 6.0618; SDCL, § 51-14-54; SL 1969, ch 11, § 13.23; SL 1974, ch 301, § 5; SL 1988, ch 377, § 185; SDCL, § 51-27-35.
51A-15-44. Accounting by director or receivers after liquidation--Cancellation of charter--Order and certificate of dissolution.
When the assets have been distributed in accordance with this chapter, the director or receiver shall file an account with the circuit court. Upon approval thereof, the director or receiver shall be relieved of liability in connection with the liquidation and the court shall cancel the charter and enter an order of dissolution. The filing of a certified copy of such order with the secretary of state shall be deemed authority for the issuance of a certificate of dissolution.
Source: SL 1927, ch 58, §§ 10, 11; SL 1933, ch 55, §§ 10, 11; SDC 1939, § 6.0631; SDCL, § 51-14-62; SL 1969, ch 11, § 13.24; SL 1970, ch 265, § 73; SL 1988, ch 377, § 186; SDCL, § 51-27-36; SL 2005, ch 202, § 18.
51A-15-45. Instruments affecting real estate executed on behalf of insolvent banks validated.
All real estate mortgages, assignments and satisfactions of real estate mortgages and all assignments of sheriff's certificates of sale and all sales made and deeds executed by a receiver of an insolvent suspended national bank, by the board of trustees or local liquidation committee or corporation of an insolvent suspended state bank, or by the director, in charge of an insolvent suspended state bank or by a duly appointed, qualified and acting examiner in charge, either in the name of the director, or in his own name as examiner in charge of such insolvent suspended state bank, are hereby legalized, cured and validated.
Source: SL 1949, ch 20; SDC Supp 1960, § 65.0327; SDCL, §§ 51-14-66, 51-27-39.
51A-16-1 to 51A-16-17. Repealed.
CHAPTER 51A-17
MONEY TRANSMISSION
51A-17-1 Repealed.
51A-17-2 Repealed.
51A-17-2.1 Repealed.
51A-17-2.2 Repealed.
51A-17-2.3 Repealed.
51A-17-2.4 Repealed.
51A-17-2.5 Repealed.
51A-17-2.6 Repealed.
51A-17-2.7 Repealed.
51A-17-2.8 Repealed.
51A-17-3 Repealed.
51A-17-4 Repealed.
51A-17-5 Repealed.
51A-17-6 Repealed.
51A-17-7 Repealed.
51A-17-8 Repealed.
51A-17-9 Repealed.
51A-17-10 Repealed.
51A-17-10.1 Repealed.
51A-17-10.2 Repealed.
51A-17-10.3 Repealed.
51A-17-11 Repealed.
51A-17-12 Repealed.
51A-17-13 Repealed.
51A-17-14 Repealed.
51A-17-15 Repealed.
51A-17-16 Repealed.
51A-17-17 Repealed.
51A-17-18 Repealed.
51A-17-19 Repealed.
51A-17-20 Repealed.
51A-17-21 Repealed.
51A-17-22 Repealed.
51A-17-22.1 Repealed.
51A-17-22.2 Repealed.
51A-17-22.3 Repealed.
51A-17-23 Repealed.
51A-17-24 Repealed.
51A-17-25 Repealed.
51A-17-26 Repealed.
51A-17-27 Repealed.
51A-17-28 Repealed.
51A-17-29 Repealed.
51A-17-30 Repealed.
51A-17-31 Repealed.
51A-17-32 Repealed.
51A-17-33 Repealed.
51A-17-34 Repealed.
51A-17-35 Repealed.
51A-17-36 Repealed.
51A-17-37 Repealed.
51A-17-38 Repealed.
51A-17-39 Repealed.
51A-17-40 Repealed.
51A-17-41 Repealed.
51A-17-42 Repealed.
51A-17-43 Repealed.
51A-17-44 Repealed by SL 2012, ch 252, § 27.
51A-17-45 Repealed.
51A-17-46 Repealed.
51A-17-47 Repealed.
51A-17-48 Repealed.
51A-17-49 Repealed.
51A-17-50 Repealed.
51A-17-51 Repealed.
51A-17-52 Definitions.
51A-17-53 Exemptions to chapter.
51A-17-54 Director's authority.
51A-17-55 Confidentiality--Disclosure of information.
51A-17-56 Examination or investigation by director--Production required--Costs.
51A-17-57 Director participation in multistate supervisory processes.
51A-17-58 Conflict with federal law.
51A-17-59 License required to engage in money transmission--Exceptions.
51A-17-60 Licensing--Director authority.
51A-17-61 Application for license--Fee--Waiver.
51A-17-62 Individual controlling a licensee or applicant--Information required.
51A-17-63 Background report--Individual in control residing outside United States.
51A-17-64 Complete application--Notice--Approval and denial.
51A-17-65 Complete application--Meaning.
51A-17-66 Complete application--Investigation.
51A-17-67 Multistate licensing process--Investigations.
51A-17-68 Written denial of decision--Appeal.
51A-17-69 Initial license term.
51A-17-70 Annual renewal of license--Fee--Renewal term--Renewal report.
51A-17-71 License revocation or suspension--Compliance required.
51A-17-72 Acquisition of control--Approval required--Application--Fee--Promulgation of rules.
51A-17-73 Acquisition of control--Application--Completion.
51A-17-74 Acquisition of control--Application--Completion meaning.
51A-17-75 Acquisition of control--Application--Investigation.
51A-17-76 Multistate licensing--Investigation.
51A-17-77 Acquisition of control--Denial of application--Appeal.
51A-17-78 Acquisition of control--Exceptions.
51A-17-79 Notice of acquisition of control.
51A-17-80 Acquisition of control--Further exceptions.
51A-17-81 Acquisition of control--Application--Determination.
51A-17-82 Multistate licensing--Determination--Investigation.
51A-17-83 Notice of adding or replacing key individual by licensee--Notice of disapproval by director.
51A-17-84 License report of condition--Requirements of report.
51A-17-85 Filing of financial statement--Certificate of opinion.
51A-17-86 Report of licensee's authorized delegates.
51A-17-87 Report of bankruptcy, administrative proceeding, or revocation or suspension of license.
51A-17-88 Filing of reports required by federal law.
51A-17-89 Maintenance of records.
51A-17-90 Requirements for licensee to conduct business through authorized delegate--Licensee to notify delegates of license.
51A-17-91 Prohibition if unlicensed.
51A-17-92 Jurisdiction.
51A-17-93 Licensee's duty to forward money received for transmission--Failure to forward.
51A-17-94 Exception--Request for refund by sender.
51A-17-95 Electronic receipt.
51A-17-96 Receipt for money received for transmission--Requirements for receipt.
51A-17-97 Required disclosure of division information on receipt or licensee's website.
51A-17-98 Payroll processing services requirements.
51A-17-99 Tangible net worth of licensee.
51A-17-100 Surety bond--Amount of surety bond required.
51A-17-101 Maintenance of permissible investments.
51A-17-102 Permissible investments described.
51A-17-103 Letter of credit requirements.
51A-17-104 Expiration of letter of credit--Funds held in trust by director.
51A-17-105 Documents issuer of letter of credit required to present prior to expiration of letter of credit.
51A-17-106 Designation by director of agent as beneficiary to a letter of credit.
51A-17-107 Director to participate in multistate processes on letters of credit.
51A-17-108 Additional permissible investments described.
51A-17-109 Virtual currency.
51A-17-110 Suspension or revocation of license.
51A-17-111 Suspension or revocation of an authorized delegate.
51A-17-112 Cease and desist order by director.
51A-17-113 Consent order.
51A-17-114 False statement, misrepresentation, or false certification--Service without license--Penalty.
51A-17-115 Civil penalty.
51A-17-116 Order to cease and desist--Service.
51A-17-117 Uniformity.
51A-17-118 Validity--Provisions severable.
51A-17-119 Effective date.
51A-17-120 Consent to South Dakota jurisdiction.
51A-17-121 Deposit of moneys--Banking special revenue fund.
51A-17-122 Sharing of information collected and retained by the director.
51A-17-1. Repealed.
Source: SL 2008, ch 253, § 1; SL 2015, ch 241, § 1; SL 2022, ch 178, § 1; SL 2023, ch 159, § 1; SL 2024, ch 196, § 72.
51A-17-4. Repealed.
Source: SL 2008, ch 253, § 4; SL 2015, ch 241, § 3; SL 2019, ch 206, § 1; SL 2024, ch 196, § 83.
51A-17-10. Repealed.
Source: SL 2008, ch 253, § 10; SL 2022, ch 178, § 5; SL 2023, ch 159, § 9; SL 2024, ch 196, § 89.
51A-17-20. Repealed.
Source: SL 2008, ch 253, § 20; SL 2015, ch 241, § 2; SL 2019, ch 206, § 6; SL 2024, ch 196, § 102.
51A-17-22. Repealed.
Source: SL 2008, ch 253, § 22; SL 2022, ch 178, § 6; SL 2023, ch 159, § 13; SL 2024, ch 196, § 104.
51A-17-44. Repealed by SL 2012, ch 252, § 27.
51A-17-52. Definitions.
Terms used in this chapter mean:
(1) "Acting in concert," persons knowingly acting together with a common goal of jointly acquiring control of a licensee whether or not pursuant to an express agreement;
(2) "Authorized delegate," a person a licensee designates to engage in money transmission on behalf of the licensee;
(3) "Average daily money transmission liability," the amount of the licensee's outstanding money transmission obligations in this state at the end of each day in a given period of time, added together, and divided by the total number of days in the given period of time. For purposes of calculating average daily money transmission liability under this chapter for any licensee required to do so, the given period of time is the quarters ending March thirty-first, June thirtieth, September thirtieth, and December thirty-first;
(4) "Bank Secrecy Act," the Bank Secrecy Act, 31 U.S.C. § 5311, et seq. and its implementing regulations (January 1, 2024);
(5) "Closed loop stored value," stored value that is redeemable by the issuer only for goods or services provided by the issuer or its affiliate or franchisees of the issuer or its affiliate, except to the extent required by applicable law to be redeemable in cash for its cash value;
(6) "Control:"
(a) The power to vote, directly or indirectly, at least twenty-five percent of the outstanding voting shares or voting interests of a licensee or person in control of a licensee; the power to elect or appoint a majority of key individuals or executive officers, managers, directors, trustees; other persons exercising managerial authority of a person in control of a licensee; or the power to exercise, directly or indirectly, a controlling influence over the management or policies of a licensee or person in control of a licensee;
(b) A person is presumed to exercise a controlling influence when the person holds the power to vote, directly or indirectly, at least ten percent of the outstanding voting shares or voting interests of a licensee or person in control of a licensee. A person presumed to exercise a controlling influence as defined by this section can rebut the presumption of control if the person is a passive investor;
(c) For purposes of determining the percentage of a person controlled by any other person, the person's interest shall be aggregated with the interest of any other immediate family member, including the person's spouse, parents, children, siblings, mothers- and fathers-in-law, sons- and daughters-in-law, brothers- and sisters-in-law, and any other person who shares the person's home;
(7) "Eligible rating," a credit rating of any of the three highest rating categories provided by an eligible rating service, whereby each category may include rating category modifiers, such as "plus" or "minus" for S&P or the equivalent for any other eligible rating service. Long-term credit ratings are deemed eligible if the rating is equal to A- or higher by S&P or the equivalent from any other eligible rating service. Short-term credit ratings are deemed eligible if the rating is equal to or higher than A-2 or SP-2 by S&P or the equivalent from any other eligible rating service. In the event that ratings differ among eligible rating services, the highest rating shall apply when determining whether a security bears an eligible rating;
(8) "Eligible rating service," any nationally recognized statistical rating organization as defined by the U.S. Securities and Exchange Commission, and any other organization designated by the director by rule or order;
(9) "Federally insured depository financial institution," a bank, credit union, savings and loan association, trust company, savings association, savings bank, industrial bank, or industrial loan company organized under the laws of the United States or any state of the United States, when the bank, credit union, savings and loan association, trust company, savings association, savings bank, industrial bank, or industrial loan company has federally insured deposits;
(10) "In this state," at a physical location within this state for a transaction requested in person. For a transaction requested electronically or by phone, the provider of money transmission may determine if the person requesting the transaction is "in this state" by relying on other information provided by the person regarding the location of the individual's residential address or a business entity's principal place of business or other physical address location and any records associated with the person that the provider of money transmission may have that indicate the location, including but not limited to an address associated with an account;
(11) "Individual," a natural person;
(12) "Key individual," any individual ultimately responsible for establishing or directing policies and procedures of the licensee, such as an executive officer, manager, director, or trustee;
(13) "Licensee," a person licensed under this chapter;
(14) "Material litigation," litigation that, according to United States generally accepted accounting principles, is significant to a person's financial health and would be required to be disclosed in the person's annual audited financial statements, report to shareholders, or similar records;
(15) "Money," a medium of exchange that is authorized or adopted by the United States or a foreign government. The term includes a monetary unit of account established by an intergovernmental organization or by agreement between two or more governments. Money does not include any central bank digital currency;
(16) "Monetary value," a medium of exchange, whether or not redeemable in money;
(17) "Money transmission," any of the following:
(a) Selling or issuing payment instruments to a person located in this state;
(b) Selling or issuing stored value to a person located in this state; or
(c) Receiving money for transmission from a person located in this state.
The term includes payroll processing services. The term does not include the provision solely of online or telecommunications services or network access;
(18) "MSB accredited state," a state agency that is accredited by the Conference of State Bank Supervisors and Money Transmitter Regulators Association for money transmission licensing and supervision;
(19) "Multistate licensing process," any agreement entered into by and among state regulators relating to coordinated processing of applications for money transmission licenses, applications for the acquisition of control of a licensee, control determinations, or notice and information requirements for a change of key individuals;
(20) "NMLS," the Nationwide Multistate Licensing System and Registry developed by the Conference of State Bank Supervisors and the American Association of Residential Mortgage Regulators and owned and operated by the State Regulatory Registry, LLC, or any successor or affiliated entity, for the licensing and registration of persons in financial services industries;
(21) "Outstanding money transmission obligations," must be established and extinguished in accordance with applicable state law and:
(a) Any payment instrument or stored value issued or sold by the licensee to a person located in the United States or reported as sold by an authorized delegate of the licensee to a person that is located in the United States that has not yet been paid or refunded by or for the licensee, or escheated in accordance with applicable abandoned property laws; or
(b) Any money received for transmission by the licensee or an authorized delegate in the United States from a person located in the United States that has not been received by the payee or refunded to the sender, or escheated in accordance with applicable abandoned property laws;
(c) For purposes of this section, "in the United States" shall include, to the extent applicable, a person in any state, territory, or possession of the United States; the District of Columbia; the Commonwealth of Puerto Rico; or a U.S. military installation that is located in a foreign country;
(22) "Passive investor," a person that:
(a) Does not have the power to elect a majority of key individuals or executive officers, managers, directors, trustees, or other persons exercising managerial authority of a person in control of a licensee;
(b) Is not employed by and does not have any managerial duties of the licensee or person in control of a licensee;
(c) Does not have the power to exercise, directly or indirectly, a controlling influence over the management or policies of a licensee or person in control of a licensee; and
(d) Either attests to (a), (b), and (c) in a form and in a medium prescribed by the director or commits to the passivity characteristics of (a), (b), and (c) in a written document;
(23) "Payment instrument," a written or electronic check, draft, money order, traveler's check, or other written or electronic instrument for the transmission or payment of money or monetary value, whether or not negotiable. The term does not include stored value or any instrument that is redeemable by the issuer only for goods or services provided by the issuer or its affiliate or franchisees of the issuer or its affiliate, except to the extent required by applicable law to be redeemable in cash for its cash value, or is not sold to the public but issued and distributed as part of a loyalty, rewards, or promotional program;
(24) "Payroll processing services," receiving money for transmission pursuant to a contract with a person to deliver wages or salaries, make payment of payroll taxes to state and federal agencies, make payments relating to employee benefit plans, or make distributions of other authorized deductions from wages or salaries. The term payroll processing services does not include an employer performing payroll processing services on its own behalf or on behalf of its affiliate or a professional employment organization subject to regulation under other applicable state law;
(25) "Person," any individual, general partnership, limited partnership, limited liability company, corporation, trust, association, joint stock corporation, or other corporate entity identified by the director;
(26) "Receiving money for transmission" or "money received for transmission," receiving money or monetary value in the United States for transmission within or outside the United States by electronic or other means;
(27) "Stored value," monetary value representing a claim against the issuer evidenced by an electronic or digital record and that is intended and accepted for use as a means of redemption for money or monetary value or payment for goods or services. The term includes, but is not limited to, "prepaid access" as defined by 31 C.F.R. § 1010.100 (January 1, 2024). Notwithstanding the foregoing, the term "stored value" does not include a payment instrument, closed loop stored value, or stored value not sold to the public but issued and distributed as part of a loyalty, rewards, or promotional program; and
(28) "Tangible net worth," the aggregate assets of a licensee excluding all intangible assets, less liabilities, as determined in accordance with United States generally accepted accounting principles.
Source: SL 2024, ch 196, § 1.
51A-17-53. Exemptions to chapter.
This chapter does not apply to:
(1) An operator of a payment system to the extent that it provides processing, clearing, or settlement services, between or among persons exempted by this section or licensees, in connection with wire transfers, credit card transactions, debit card transactions, stored-value transactions, automated clearing house transfers, or similar funds transfers;
(2) A person appointed as an agent of a payee to collect and process a payment from a payor to the payee for goods or services, other than the money transmission itself, provided to the payor by the payee, provided that:
(a) There exists a written agreement between the payee and the agent directing the agent to collect and process payments from payors on the payee's behalf;
(b) The payee holds the agent out to the public as accepting payments for goods or services on the payee's behalf; and
(c) Payment for the goods and services is treated as received by the payee upon receipt by the agent so that the payor's obligation is extinguished and there is no risk of loss to the payor if the agent fails to remit the funds to the payee;
(3) A person that acts as an intermediary by processing payments between an entity that has directly incurred an outstanding money transmission obligation to a sender, and the sender's designated recipient, provided that the entity:
(a) Is properly licensed or exempt from licensing requirements under this Act;
(b) Provides a receipt, electronic record, or other written confirmation to the sender identifying the entity as the provider of money transmission in the transaction; and
(c) Bears sole responsibility to satisfy the outstanding money transmission obligation to the sender, including the obligation to make the sender whole in connection with any failure to transmit the funds to the sender's designated recipient;
(4) The United States, a department, agency, or instrumentality thereof, or its agent;
(5) Money transmission by the United States Postal Service or by an agent of the United States Postal Service;
(6) A state, county, city, or any other governmental agency or governmental subdivision or instrumentality of a state, or its agent;
(7) A federally insured depository financial institution, bank holding company, office of an international banking corporation, foreign bank that establishes a federal branch pursuant to the International Bank Act, 12 U.S.C. § 3102 (January 1, 2024), corporation organized pursuant to the Bank Service Corporation Act, 12 U.S.C. §§ 1861-1867 (January 1, 2024), or corporation organized under the Edge Act, 12 U.S.C. §§ 611-633 (January 1, 2024);
(8) Electronic funds transfer of governmental benefits for a federal, state, county, or governmental agency by a contractor on behalf of the United States or a department, agency, or instrumentality thereof, or on behalf of a state or governmental subdivision, agency, or instrumentality thereof;
(9) A board of trade designated as a contract market under the federal Commodity Exchange Act, 7 U.S.C. §§ 1-25 (January 1, 2024), or a person that, in the ordinary course of business, provides clearance and settlement services for a board of trade to the extent of its operation as or for the board;
(10) A registered futures commission merchant under the federal commodities laws to the extent of its operation as a merchant;
(11) A person registered as a securities broker-dealer under federal or state securities laws to the extent of its operation as a broker-dealer;
(12) An individual employed by a licensee, authorized delegate, or any person exempted from the licensing requirements of this chapter when acting within the scope of employment and under the supervision of the licensee, authorized delegate, or exempted person as an employee and not as an independent contractor;
(13) A person expressly appointed as a third-party service provider to or agent of an entity exempt under subdivision (7) of this section, solely to the extent that:
(a) The service provider or agent is engaging in money transmission on behalf of and pursuant to a written agreement with the exempt entity that sets forth the specific functions that the service provider or agent is to perform; and
(b) The exempt entity assumes all risk of loss and all legal responsibility for satisfying the outstanding money transmission obligations owed to purchasers and holders of the outstanding money transmission obligations upon receipt of the purchaser's or holder's money or monetary value by the service provider or agent;
(14) A person exempt by regulation or order if the director finds the exemption to be in the public interest and that the regulation of the person is not necessary for the purposes of this chapter;
(15) A South Dakota chartered trust company; and
(16) A person appointed as an agent of a payor for purposes of providing payroll processing services for which the agent would otherwise need to be licensed, provided all of the following apply:
(a) There is a written agreement between the payor and the agent that directs the agent to provide payroll processing services on the payor’s behalf;
(b) The payor holds the agent out to employees and other payees as providing payroll processing services on the payor’s behalf; and
(c) The payor’s obligation to a payee, including an employee or any other party entitled to receive funds via the payroll processing services provided by the agent, shall not be extinguished if the agent fails to remit the funds to the payee.
The director may require that any person claiming to be exempt from licensing pursuant to this section provide information and documentation to the director demonstrating that it qualifies for any claimed exemption.
Source: SL 2024, ch 196, § 2.
51A-17-54. Director's authority.
(1) In order to carry out the purposes of this chapter, the director may, subject to the provisions of subdivisions 51A-17-55(1) and (4):
(a) Enter into agreements or relationships with other government officials or federal and state regulatory agencies and regulatory associations in order to improve efficiencies and reduce regulatory burden by standardizing methods or procedures, and sharing resources, records, or related information obtained under this chapter;
(b) Use, hire, contract, or employ analytical systems, methods, or software to examine or investigate any person subject to this chapter;
(c) Accept, from other state or federal government agencies or officials, licensing, examination, or investigation reports made by the other state or federal government agencies or officials; and
(d) Accept audit reports made by an independent certified public accountant or other qualified third-party auditor for an applicant or licensee and incorporate the audit report in any report of examination or investigation.
(2) The director has the broad administrative authority to administer, interpret, and enforce this chapter and to recover the cost of administering and enforcing this chapter by imposing and collecting proportionate and equitable fees and costs associated with applications, examinations, investigations, and other actions required to achieve the purpose of this chapter.
Source: SL 2024, ch 196, § 3.
51A-17-55. Confidentiality--Disclosure of information.
(1) Except as otherwise provided in this section, all information or reports obtained by the director from an applicant, licensee, or authorized delegate and all information contained in or related to an examination, investigation, operating report, or condition report prepared by, on behalf of, or for the use of the director, or financial statements, balance sheets, or authorized delegate information are confidential and are not subject to disclosure under this state's open records law.
(2) The director may disclose information not otherwise subject to disclosure under this section to representatives of state or federal agencies who promise in a record that they will maintain the confidentiality of the information or where the director finds that the release is reasonably necessary for the protection and interest of the public in accordance with this state’s open records law.
(3) This section does not prohibit the director from disclosing to the public a list of all licensees or the aggregated financial or transactional data concerning those licensees.
(4) Information contained in the records of the division that is not confidential and may be made available to the public either on the division website, upon receipt by the division of a written request, or in NMLS must include:
(a) The name, business address, telephone number, and unique identifier of a licensee;
(b) The business address of a licensee's registered agent for service;
(c) The name, business address, and telephone number of all authorized delegates;
(d) The terms of or a copy of any bond filed by a licensee, provided that confidential information, including, but not limited to, prices and fees for the bond is redacted; and
(e) Copies of any non-confidential final orders of the division relating to any violation of this chapter or regulations implementing this chapter; and
(f) Imposition of a non-confidential administrative fine or penalty under this chapter.
Source: SL 2024, ch 196, § 4.
51A-17-56. Examination or investigation by director--Production required--Costs.
(1) The director may conduct an examination or investigation of a licensee or authorized delegate or otherwise take independent action authorized by this chapter or by a rule adopted or order issued under this chapter as reasonably necessary or appropriate to administer and enforce this chapter, regulations implementing this chapter, and other applicable law, including the Bank Secrecy Act and other federal and state laws pertaining to money laundering. The director may:
(a) Conduct an examination either on-site or off-site as the director may reasonably require;
(b) Conduct an examination in conjunction with an examination conducted by representatives of other state agencies or agencies of another state or the federal government;
(c) Accept the examination report of another state agency or an agency of another state or the federal government, or a report prepared by an independent accounting firm, which on being accepted is considered for all purposes as an official report of the director; and
(d) Summon and examine under oath a key individual or employee of a licensee or authorized delegate and require the person to produce records regarding any matter related to the condition and business of the licensee or authorized delegate.
(2) A licensee or authorized delegate must provide, and the director must have full and complete access to, all records the director may reasonably require to conduct a complete examination. The records must be provided at the location and in the format specified by the director, provided the director may utilize multistate record production standards and examination procedures when such standards will reasonably achieve the requirements of this section.
(3) Unless otherwise directed by the director, a licensee must pay all costs reasonably incurred in connection with an examination of the licensee or the licensee's authorized delegates.
Source: SL 2024, ch 196, § 5.
51A-17-57. Director participation in multistate supervisory processes.
(1) To efficiently and effectively administer and enforce this chapter and to minimize regulatory burden, the director is authorized and encouraged to participate in multistate supervisory processes established between states and coordinated through the Conference of State Bank Supervisors, Money Transmitter Regulators Association, and affiliates and successors thereof for all licensees that hold licenses in this state and other states. As a participant in multistate supervision, the director may:
(a) Cooperate, coordinate, and share information with other state and federal regulators in accordance with § 51A-17-55;
(b) Enter into written cooperation, coordination, or information-sharing contracts or agreements with organizations the membership of which is made up of state or federal governmental agencies; and
(c) Cooperate, coordinate, and share information with organizations the membership of which is made up of state or federal governmental agencies, provided that the organizations agree in writing to maintain the confidentiality and security of the shared information in accordance with § 51A-17-55.
(2) The director may not waive, and nothing in this section constitutes a waiver of, the director's authority to conduct an examination or investigation or otherwise take independent action authorized by this chapter or a rule adopted or order issued under this chapter to enforce compliance with applicable state or federal law.
(3) A joint examination or investigation, or acceptance of an examination or investigation report, does not waive an examination assessment provided for in this chapter.
Source: SL 2024, ch 196, § 6.
51A-17-58. Conflict with federal law.
(1) In the event state money transmission jurisdiction is conditioned on a federal law, any inconsistencies between a provision of this chapter and the federal law governing money transmission shall be governed by the applicable federal law to the extent of the inconsistency.
(2) In the event of any inconsistencies between this chapter and a federal law that governs pursuant to this section, the director may provide interpretive guidance that:
(a) Identifies the inconsistency; and
(b) Identifies the appropriate means of compliance with federal law.
Source: SL 2024, ch 196, § 7.
51A-17-59. License required to engage in money transmission--Exceptions.
(1) A person may not engage in the business of money transmission or advertise, solicit, or hold itself out as providing money transmission unless the person is licensed under this chapter.
(2) This section does not apply to:
(a) A person that is an authorized delegate of a person licensed under this chapter acting within the scope of authority conferred by a written contract with the licensee; or
(b) A person that is exempt pursuant to § 51A-17-53 and does not engage in money transmission outside the scope of such exemption.
(3) A license issued under §§ 51A-17-64 to 51A-17-69, inclusive, is not transferable or assignable.
Source: SL 2024, ch 196, § 8.
51A-17-60. Licensing--Director authority.
(1) To establish consistent licensing between this state and other states, the director is authorized and encouraged to:
(a) Implement all licensing provisions of this chapter in a manner that is consistent with other states that have adopted this chapter or multistate licensing processes; and
(b) Participate in nationwide protocols for licensing cooperation and coordination among state regulators provided that such protocols are consistent with this chapter.
(2) In order to fulfill the purposes of this chapter, the director is authorized and encouraged to establish relationships or contracts with NMLS or other entities designated by NMLS to enable the director to:
(a) Collect and maintain records;
(b) Coordinate multistate licensing processes and supervision processes;
(c) Process fees; and
(d) Facilitate communication between the division and licensees or other persons subject to this chapter.
(3) The director is authorized and encouraged to utilize NMLS for all aspects of licensing in accordance with this chapter, including, but not limited to, license applications, applications for acquisitions of control, surety bonds, reporting, criminal history background checks, credit checks, fee processing, and examinations.
(4) The director is authorized and encouraged to utilize NMLS forms, processes, and functionalities in accordance with this chapter. In the event NMLS does not provide functionality, forms, or processes for a provision of this chapter, the director is authorized and encouraged to strive to implement the requirements in a manner that facilitates uniformity with respect to licensing, supervision, reporting, and regulation of licensees which are licensed in multiple jurisdictions.
(5) For the purpose of participating in the Nationwide Multistate Licensing System and Registry, the director is authorized to waive or modify, in whole or in part, by rule, regulation or order, any or all of the requirements and to establish new requirements as reasonably necessary to participate in the Nationwide Multistate Licensing System and Registry.
Source: SL 2024, ch 196, § 9.
51A-17-61. Application for license--Fee--Waiver.
(1) Applicants for a license must apply in a form and in a medium as prescribed by the director. Each form must contain content as set forth by rule, regulation, instruction, or procedure of the director and may be changed or updated by the director in accordance with applicable law in order to carry out the purposes of this chapter and maintain consistency with NMLS licensing standards and practices. The application must state or contain, as applicable:
(a) The legal name and residential and business addresses of the applicant and any fictitious or trade name used by the applicant in conducting its business;
(b) A list of any criminal convictions of the applicant and any material litigation in which the applicant has been involved in the ten-year period next preceding the submission of the application;
(c) A description of any money transmission previously provided by the applicant and the money transmission that the applicant seeks to provide in this state;
(d) A list of the applicant's proposed authorized delegates and the locations in this state where the applicant and its authorized delegates propose to engage in money transmission;
(e) A list of other states in which the applicant is licensed to engage in money transmission and any license revocations, suspensions, or other disciplinary action taken against the applicant in another state;
(f) Information concerning any bankruptcy or receivership proceedings affecting the licensee or a person in control of a licensee;
(g) A sample form of contract for authorized delegates, if applicable;
(h) A sample form of payment instrument or stored value, as applicable;
(i) The name and address of any federally insured depository financial institution through which the applicant plans to conduct money transmission; and
(j) Any other information the director or NMLS reasonably requires with respect to the applicant.
(2) If an applicant is a corporation, limited liability company, partnership, or other legal entity, the applicant must also provide:
(a) The date of the applicant's incorporation or formation and state or country of incorporation or formation;
(b) If applicable, a certificate of good standing from the state or country in which the applicant is incorporated or formed;
(c) A brief description of the structure or organization of the applicant, including any parents or subsidiaries of the applicant, and whether any parents or subsidiaries are publicly traded;
(d) The legal name, any fictitious or trade name, all business and residential addresses, and the employment, as applicable, in the ten-year period next preceding the submission of the application of each key individual and person in control of the applicant;
(e) A list of any criminal convictions and material litigation in which a person in control of the applicant that is not an individual has been involved in the ten-year period preceding the submission of the application;
(f) A copy of audited financial statements of the applicant for the most recent fiscal year and for the two-year period next preceding the submission of the application or, if determined to be acceptable to the director, certified unaudited financial statements for the most recent fiscal year or other period acceptable to the director;
(g) A certified copy of unaudited financial statements of the applicant for the most recent fiscal quarter;
(h) If the applicant is a publicly traded corporation, a copy of the most recent report filed with the United States Securities and Exchange Commission under Section 13 of the federal Securities Exchange Act of 1934, 15 U.S.C. § 78m (January 1, 2024);
(i) If the applicant is a wholly owned subsidiary of a corporation publicly traded in the United States, a copy of audited financial statements for the parent corporation for the most recent fiscal year or a copy of the parent corporation's most recent report filed under Section 13 of the U.S. Securities Exchange Act of 1934, 15 U.S.C. § 78m (January 1, 2024) or for a corporation publicly traded outside the United States, a copy of similar documentation filed with the regulator of the parent corporation's domicile outside the United States;
(j) The name and address of the applicant's registered agent in this state; and
(k) Any other information the director reasonably requires with respect to the applicant.
(3) Each application must be accompanied by a nonrefundable application fee not to exceed five hundred dollars and a license fee not to exceed one thousand dollars. The license fee must be refunded if the application is denied. The director shall establish the application and license fees by rules promulgated pursuant to chapter 1-26.
(4) The director may waive one or more requirements of this section or permit an applicant to submit other information in lieu of the required information.
Source: SL 2024, ch 196, § 10.
51A-17-62. Individual controlling a licensee or applicant--Information required.
Any individual in control of a licensee or applicant or any individual that seeks to acquire control of a licensee, or each key individual must furnish to the director through NMLS the following items:
(1) The individual's fingerprints for submission to the Federal Bureau of Investigation and the director for purposes of a national criminal history background check, unless the person currently resides outside of the United States and has resided outside of the United States for the last ten years; and
(2) Personal history and experience in a form and in a medium prescribed by the director to obtain the following:
(a) An independent credit report from a consumer reporting agency unless the individual does not have a Social Security number, in which case, this requirement shall be waived;
(b) Information related to any criminal convictions or pending charges; and
(c) Information related to any regulatory or administrative action and any civil litigation involving claims of fraud, misrepresentation, conversion, mismanagement of funds, breach of fiduciary duty, or breach of contract.
Source: SL 2024, ch 196, § 11.
51A-17-63. Background report--Individual in control residing outside United States.
If any individual in control of a licensee or applicant or any individual that seeks to acquire control of a licensee or each key individual has resided outside of the United States at any time in the last ten years, the individual must also provide an investigative background report prepared by an independent search firm that meets the following requirements:
(1) At a minimum, the search firm shall:
(a) Demonstrate that the search firm has sufficient knowledge, resources, and employs accepted and reasonable methodologies to conduct the research of the background report; and
(b) Not be affiliated with or have an interest with the individual the search firm is researching, and
(2) At a minimum, the investigative background report must be written in the English language and must contain the following:
(a) If available in the individual's current jurisdiction of residency, a comprehensive credit report or any equivalent information obtained or generated by the independent search firm to accomplish the report, including a search of the court data in the countries, provinces, states, cities, towns, and contiguous areas where the individual resided and worked;
(b) Criminal records information for the past ten years, including, but not limited to, felonies, misdemeanors, or similar convictions for violations of law in the countries, provinces, states, cities, towns, and contiguous areas where the individual resided and worked;
(c) Employment history;
(d) Media history, including an electronic search of national and local publications, wire services, and business applications; and
(e) Financial services-related regulatory history, including but not limited to, money transmission, securities, banking, insurance, and mortgage-related industries.
Source: SL 2024, ch 196, § 12.
51A-17-64. Complete application--Notice--Approval and denial.
When an application for an original license under this Act appears to include all the items and addresses all of the matters that are required, the application is complete, and the director must promptly notify the applicant in a record of the date on which the application is determined to be complete.
(1) The director must approve or deny the application within one hundred twenty days after the completion date; or
(2) If the application is not approved or denied within one hundred twenty days after the completion date:
(a) The application is approved; and
(b) The license takes effect as of the first business day after expiration of the one hundred twenty-day period.
(c) The director may for good cause extend the application period.
Source: SL 2024, ch 196, § 13.
51A-17-65. Complete application--Meaning.
A determination by the director that an application is complete and is accepted for processing means only that the application, on its face, appears to include all of the items, including the criminal background check response from the FBI, addresses all of the matters that are required, and is not an assessment of the substance of the application or of the sufficiency of the information provided.
Source: SL 2024, ch 196, § 14.
51A-17-66. Complete application--Investigation.
When an application is filed and considered complete under §§ 51A-17-64 and 51A-17-65, the director must investigate the applicant's financial condition and responsibility, financial and business experience, character, and general fitness. The director may conduct an on-site investigation of the applicant, the reasonable cost of which the applicant must pay. The director must issue a license to an applicant under §§ 51A-17-64 to 51A-17-69, inclusive, if the director finds that all of the following conditions have been fulfilled:
(1) The applicant has complied with §§ 51A-17-61 to 51A-17-63, inclusive; and
(2) The financial condition and responsibility, financial and business experience, competence, character, and general fitness of the applicant; and the competence, experience, character, and general fitness of the key individuals and persons in control of the applicant indicate that it is in the interest of the public to permit the applicant to engage in money transmission.
Source: SL 2024, ch 196, § 15.
51A-17-67. Multistate licensing process--Investigations.
If an applicant avails itself or is otherwise subject to a multistate licensing process:
(1) The director is authorized and encouraged to accept the investigation results of a lead investigative state for the purpose of § 51A-17-66 if the lead investigative state has sufficient staffing, expertise, and minimum standards; or
(2) If the division is a lead investigative state, the director is authorized and encouraged to investigate the applicant pursuant to § 51A-17-66 and the timeframes established by agreement through the multistate licensing process, provided, however, that in no case shall such a timeframe be noncompliant with the application period in § 51A-17-64.
Source: SL 2024, ch 196, § 16.
51A-17-68. Written denial of decision--Appeal.
The director shall issue a formal written notice of the denial of a license application within thirty days of the decision to deny the application. The director shall set forth in the notice of denial the specific reasons for the denial of the application. An applicant whose application is denied by the director under this section may appeal within thirty days after receipt of the written notice of the denial pursuant to chapter 1-26.
Source: SL 2024, ch 196, § 17.
51A-17-69. Initial license term.
The initial license term begins on the day the application is approved. The license shall expire on December thirty-first of the year in which the license term began, unless the initial license date is between November first and December thirty-first, in which instance the initial license term runs through December thirty-first of the following year.
Source: SL 2024, ch 196, § 18.
51A-17-70. Annual renewal of license--Fee--Renewal term--Renewal report.
(1) A license under this chapter shall be renewed annually.
(a) The director shall establish an annual renewal fee, not to exceed one thousand dollars, by rule promulgated pursuant to chapter 1-26.
(b) The annual renewal fee must be paid no more than sixty days before the license expiration.
(c) The renewal term shall be for a period of one year and shall begin on January first of each year after the initial license term and shall expire on December thirty-first of the year the renewal term begins.
(2) A licensee shall submit a renewal report with the renewal fee in a form and in a medium prescribed by the director. The renewal report must state or contain a description of each material change in information submitted by the licensee in its original license application which has not been reported to the director.
(3) The director for good cause may grant an extension of the renewal date.
(4) The director is authorized and encouraged to utilize NMLS to process license renewals provided that such functionality is consistent with this section.
Source: SL 2024, ch 196, § 19.
51A-17-71. License revocation or suspension--Compliance required.
Maintenance of License.
(1) If a licensee does not continue to meet the qualifications or satisfy the requirements that apply to an applicant for a new money transmission license, the director may suspend or revoke the licensee's license in accordance with the procedures established by this chapter or other applicable state law for the suspension or revocation.
(2) An applicant for a money transmission license must demonstrate that it meets or will meet, and a money transmission licensee must at all times meet, the requirements in §§ 51A-17-99 to 51A-17-101, inclusive.
Source: SL 2024, ch 196, § 20.
51A-17-72. Acquisition of control--Approval required--Application--Fee--Promulgation of rules.
(1) Any person, or group of persons acting in concert, seeking to acquire control of a licensee must obtain the written approval of the director prior to acquiring control. An individual is not deemed to acquire control of a licensee and is not subject to these acquisition of control provisions when that individual becomes a key individual in the ordinary course of business.
(2) A person, or group of persons acting in concert, seeking to acquire control of a licensee must, in cooperation with the licensee:
(a) Submit an application in a form and in a medium prescribed by the director; and
(b) Submit a nonrefundable fee not to exceed one thousand dollars. The director shall establish the fee by rule promulgated pursuant to chapter 1-26.
(3) Upon request, the director may permit a licensee or the person, or group of persons acting in concert, to submit some or all information required by the director pursuant to this section without using NMLS.
(4) The application required by this section shall include information required by §§ 51A-17-62 and 51A-17-63 for any new key individuals that have not previously completed the requirements of §§ 51A-17-62 and 51A-17-63 for a licensee.
Source: SL 2024, ch 196, § 21.
51A-17-73. Acquisition of control--Application--Completion.
When an application for acquisition of control under § 51A-17-72 appears to include all the items and address all of the matters that are required, the application shall be considered complete and the director shall promptly notify the applicant in a record of the date on which the application was determined to be complete and:
(1) The director shall approve or deny the application within sixty days after the completion date; or
(2) If the application is not approved or denied within sixty days after the completion date:
(a) The application is approved; and
(b) The person, or group of persons acting in concert, are not prohibited from acquiring control.
(3) The director may for good cause extend the application period.
Source: SL 2024, ch 196, § 22.
51A-17-74. Acquisition of control--Application--Completion meaning.
A determination by the director that an application for acquisition of control under § 51A-17-72 is complete and is accepted for processing means only that the application, on its face, appears to include all of the items and address all of the matters that are required, and is not an assessment of the substance of the application or of the sufficiency of the information provided.
Source: SL 2024, ch 196, § 23.
51A-17-75. Acquisition of control--Application--Investigation.
When an application for acquisition of control under § 51A-17-72 is filed and considered complete under § 51A-17-73, the director must investigate the financial condition and responsibility, financial and business experience, character, and general fitness of the person, or group of persons acting in concert, seeking to acquire control. The director shall approve an acquisition of control pursuant to this § 51A-17-72 if the director finds that all of the following conditions have been fulfilled:
(1) The requirements of subdivisions 51A-17-72(2) and (4) have been met, as applicable; and
(2) The financial condition and responsibility, financial and business experience, competence, character, and general fitness of the person, or group of persons acting in concert, seeking to acquire control; and the competence, experience, character, and general fitness of the key individuals and persons that would be in control of the licensee after the acquisition of control indicate that it is in the interest of the public to permit the person, or group of persons acting in concert, to control the licensee.
Source: SL 2024, ch 196, § 24.
51A-17-76. Multistate licensing--Investigation.
If an applicant for acquisition of control under § 51A-17-72 avails itself or is otherwise subject to a multistate licensing process:
(1) The director is authorized and encouraged to accept the investigation results of a lead investigative state for the purpose of § 51A-17-73 if the lead investigative state has sufficient staffing, expertise, and minimum standards; or
(2) If this state is a lead investigative state, the director is authorized and encouraged to investigate the applicant pursuant to § 51A-17-73 and the timeframes established by agreement through the multistate licensing process.
Source: SL 2024, ch 196, § 25.
51A-17-77. Acquisition of control--Denial of application--Appeal.
The director shall issue a formal written notice of the denial of an application to acquire control within thirty days of the decision to deny the application. The director must set forth in the notice of denial the specific reasons for the denial of the application. An applicant whose application is denied by the director under this section may appeal within thirty days after receipt of the written notice of the denial pursuant to chapter 1-26.
Source: SL 2024, ch 196, § 26.
51A-17-78. Acquisition of control--Exceptions.
The requirements of subdivisions 51A-17-72(1) and (2) do not apply to any of the following:
(1) A person that acts as a proxy for the sole purpose of voting at a designated meeting of the shareholders or holders of voting shares or voting interests of a licensee or a person in control of a licensee;
(2) A person that acquires control of a licensee by devise or descent;
(3) A person that acquires control of a licensee as a personal representative, custodian, guardian, conservator, or trustee, or as an officer appointed by a court of competent jurisdiction or by operation of law;
(4) A person that is exempt under subdivision 51A-17-53(7);
(5) A person that the director determines is not subject to subdivision 51A-17-72(1) based on the public interest;
(6) A public offering of securities of a licensee or a person in control of a licensee; or
(7) An internal reorganization of a person in control of the licensee where the ultimate person in control of the licensee remains the same.
Source: SL 2024, ch 196, § 27.
51A-17-79. Notice of acquisition of control.
Persons in § 51A-17-78 in cooperation with the licensee shall notify the director within fifteen days after the acquisition of control.
Source: SL 2024, ch 196, § 28.
51A-17-80. Acquisition of control--Further exceptions.
(1) The requirements in subdivisions 51A-17-72(1) and (2) do not apply to a person that has complied with and received approval to engage in money transmission under this chapter or was identified as a person in control in a prior application filed with and approved by the director or by an MSB accredited state pursuant to a multistate licensing process, provided that:
(a) The person has not had a license revoked or suspended or controlled a licensee that has had a license revoked or suspended while the person was in control of the licensee in the previous five years;
(b) If the person is a licensee, the person is well managed and has received at least a satisfactory rating for compliance at its most recent examination by an MSB accredited state if such rating was given;
(c) The licensee to be acquired is projected to meet the requirements of §§ 51A-17-99 to 51A-17-101, inclusive, after the acquisition of control is completed, and if the person acquiring control is a licensee, that licensee is also projected to meet the requirements of §§ 51A-17-100 to 51A-17-102, inclusive, after the acquisition of control is completed;
(d) The licensee to be acquired will not implement any material changes to its business plan as a result of the acquisition of control, and if the person acquiring control is a licensee, that licensee also will not implement any material changes to its business plan as a result of the acquisition of control; and
(e) The person provides notice of the acquisition in cooperation with the licensee and attests to subsections (a) through (d) in this section in a form and in a medium prescribed by the director.
(2) If the notice is not disapproved within thirty days after the date on which the notice was determined to be complete, the notice is deemed approved.
Source: SL 2024, ch 196, § 29.
51A-17-81. Acquisition of control--Application--Determination.
Before filing an application for approval to acquire control of a licensee a person may request in writing a determination from the director as to whether the person would be considered a person in control of a licensee upon consummation of a proposed transaction. If the director determines that the person would not be a person in control of a licensee, the proposed person and transaction is not subject to the requirements of subdivisions 51A-17-72(1) and (2).
Source: SL 2024, ch 196, § 30.
51A-17-82. Multistate licensing--Determination--Investigation.
If a multistate licensing process includes a determination pursuant to § 51A-17-81 and an applicant avails itself or is otherwise subject to the multistate licensing process:
(1) The director is authorized and encouraged to accept the control determination of a lead investigative state with sufficient staffing, expertise, and minimum standards for the purpose of § 51A-17-81; or
(2) If this state is a lead investigative state, the director is authorized and encouraged to investigate the applicant pursuant to § 51A-17-81 and the timeframes established by agreement through the multistate licensing process.
Source: SL 2024, ch 196, § 31.
51A-17-83. Notice of adding or replacing key individual by licensee--Notice of disapproval by director.
(1) A licensee adding or replacing any key individual must:
(a) Provide notice in a manner prescribed by the director within fifteen days after the effective date of the key individual's appointment; and
(b) Provide information as required by §§ 51A-17-62 and 51A-17-63 within forty-five days of the effective date.
(2) Within ninety days of the date on which the notice provided pursuant to this section was determined to be complete, the director may issue a notice of disapproval of a key individual if the competence, experience, character, or integrity of the individual would not be in the best interests of the public or the customers of the licensee to permit the individual to be a key individual of such licensee.
(3) A notice of disapproval must contain a statement of the basis for disapproval and shall be sent to the licensee and the disapproved individual. A licensee may appeal a notice of disapproval pursuant chapter 1-26 within thirty days of receipt of such notice of disapproval.
(4) If the notice provided pursuant to this section is not disapproved within ninety days after the date on which the notice was determined to be complete, the key individual is deemed approved.
(5) If a multistate licensing process includes a key individual notice review and disapproval process pursuant to this section and the licensee avails itself or is otherwise subject to the multistate licensing process:
(a) The director is authorized and encouraged to accept the determination of another state if the investigating state has sufficient staffing, expertise, and minimum standards for the purpose of this section; or
(b) If this state is a lead investigative state, the director is authorized and encouraged to investigate the applicant pursuant to this section and the timeframes established by agreement through the multistate licensing process.
Source: SL 2024, ch 196, § 32.
51A-17-84. License report of condition--Requirements of report.
(1) Each licensee must submit a report of condition within forty-five days of the end of the calendar quarter, or within any extended time as the director may prescribe.
(2) The report of condition must include:
(a) Financial information at the licensee level;
(b) Nationwide and state-specific money transmission transaction information in every jurisdiction in the United States where the licensee is licensed to engage in money transmission;
(c) Permissible investments report;
(d) Transaction destination country reporting for money received for transmission, if applicable; and
(e) Any other information the director reasonably requires with respect to the licensee. The director is authorized and encouraged to utilize NMLS for the submission of the report required by subdivision (1) of this section and is authorized to change or update as necessary the requirements of this section to carry out the purposes of this chapter and maintain consistency with NMLS reporting.
(3) The information required by subsection 2(d) of this section shall only be included in a report of condition submitted within forty-five days of the end of the fourth calendar quarter.
Source: SL 2024, ch 196, § 33.
51A-17-85. Filing of financial statement--Certificate of opinion.
(1) Each licensee shall, within ninety days after the end of each fiscal year, or within any extended time as the director may prescribe, file with the director:
(a) An audited financial statement of the licensee for the fiscal year prepared in accordance with United States generally accepted accounting principles; and
(b) Any other information as the director may reasonably require.
(2) The audited financial statements shall be prepared by an independent certified public accountant or independent public accountant who is satisfactory to the director.
(3) The audited financial statements shall include or be accompanied by a certificate of opinion of the independent certified public accountant or independent public accountant that is satisfactory in form and content to the director. If the certificate of opinion is qualified, the director may order the licensee to take any action as the director may find necessary to enable the independent or certified public accountant or independent public accountant to remove the qualification.
Source: SL 2024, ch 196, § 34.
51A-17-86. Report of licensee's authorized delegates.
(1) Each licensee must submit a report of authorized delegates within forty-five days of the end of the calendar quarter. The director is authorized and encouraged to utilize NMLS for the submission of the report required by this section provided that such functionality is consistent with the requirements of this section.
(2) The authorized delegate report must include, at a minimum, each authorized delegate's:
(a) Company legal name;
(b) Taxpayer employer identification number;
(c) Principal provider identifier;
(d) Physical address;
(e) Mailing address;
(f) Any business conducted in other states;
(g) Any fictitious or trade name;
(h) Contact person name, phone number, and email;
(i) Start date as licensee’s authorized delegate;
(j) End date acting as licensee’s authorized delegate, if applicable;
(k) Court orders pursuant to § 51A-17-92; and
(l) Any other information the director reasonably requires with respect to the authorized delegate.
Source: SL 2024, ch 196, § 35.
51A-17-87. Report of bankruptcy, administrative proceeding, or revocation or suspension of license.
(1) A licensee must file a report with the director within one business day after the licensee has reason to know of the occurrence of any of the following events:
(a) The filing of a petition by or against the licensee under the United States Bankruptcy Code, 11 U.S.C. § 101-110 (January 1, 2024) for bankruptcy or reorganization;
(b) The filing of a petition by or against the licensee for receivership, the commencement of any other judicial or administrative proceeding for its dissolution or reorganization, or the making of a general assignment for the benefit of its creditors; or
(c) The commencement of a proceeding to revoke or suspend its license in a state or country in which the licensee engages in business or is licensed.
(2) A licensee must file a report with the director within three business day after the licensee has reason to know of the occurrence of any of the following events:
(a) A charge or conviction of the licensee or of a key individual or person in control of the licensee for a felony; or
(b) A charge or conviction of an authorized delegate for a felony.
Source: SL 2024, ch 196, § 36.
51A-17-88. Filing of reports required by federal law.
A licensee and its authorized delegates must file all reports required by federal currency reporting, record keeping, and suspicious activity reporting requirements as set forth in the Bank Secrecy Act and other federal and state laws pertaining to money laundering. The timely filing of a complete and accurate report required under this section with the appropriate federal agency is deemed compliant with the requirements of this section.
Source: SL 2024, ch 196, § 37.
51A-17-89. Maintenance of records.
(1) Licensee shall maintain the following records, for determining its compliance with this chapter for at least three years:
(a) A record of each outstanding money transmission obligation sold;
(b) A general ledger posted at least monthly containing all asset, liability, capital, income, and expense accounts;
(c) Bank statements and bank reconciliation records;
(d) Records of outstanding money transmission obligations;
(e) Records of each outstanding money transmission obligation paid within the three-year period;
(f) A list of the last known names and addresses of all of the licensee's authorized delegates; and
(g) Any other records the director reasonably requires by rule.
(2) The items specified in subdivision (1) of this section may be maintained in any form of record.
(3) Records specified in subdivision (1) of this section may be maintained outside this state if the records are made accessible to the director on seven business-days' notice that is sent in a record.
(4) All records maintained by the licensee as required in this section are open to inspection by the director pursuant to subdivision 51A-17-56(1).
Source: SL 2024, ch 196, § 38.
51A-17-90. Requirements for licensee to conduct business through authorized delegate--Licensee to notify delegates of license.
(1) In this section, "remit" means to make direct payments of money to a licensee or its representative authorized to receive money or to deposit money in a bank in an account specified by the licensee.
(2) Before a licensee is authorized to conduct business through an authorized delegate or allows a person to act as the licensee's authorized delegate, the licensee must:
(a) Adopt, and update as necessary, written policies and procedures reasonably designed to ensure that the licensee's authorized delegates comply with applicable state and federal law;
(b) Enter into a written contract that complies with subdivision (4) of this section; and
(c) Conduct a reasonable risk-based background investigation sufficient for the licensee to determine whether the authorized delegate has complied and will likely comply with applicable state and federal law.
(3) An authorized delegate must operate in full compliance with this chapter.
(4) The written contract required by subdivision (2) of this section must be signed by the licensee and the authorized delegate and, at a minimum, must:
(a) Appoint the person signing the contract as the licensee's authorized delegate with the authority to conduct money transmission on behalf of the licensee;
(b) Set forth the nature and scope of the relationship between the licensee and the authorized delegate and the respective rights and responsibilities of the parties;
(c) Require the authorized delegate to agree to fully comply with all applicable state and federal laws, rules, and regulations pertaining to money transmission, including this chapter and regulations implementing this chapter, relevant provisions of the Bank Secrecy Act and the other federal and state laws pertaining to money laundering;
(d) Require the authorized delegate to remit and handle money and monetary value in accordance with the terms of the contract between the licensee and the authorized delegate;
(e) Impose a trust on money and monetary value net of fees received for money transmission for the benefit of the licensee;
(f) Require the authorized delegate to prepare and maintain records as required by this chapter or regulations implementing this chapter, or as reasonably requested by the director;
(g) Acknowledge that the authorized delegate consents to examination or investigation by the director;
(h) State that the licensee is subject to regulation by the director and that, as part of that regulation, the director may suspend or revoke an authorized delegate designation or require the licensee to terminate an authorized delegate designation; and
(i) Acknowledge receipt of the written policies and procedures required under subsection 2(a) of this section.
(5) If the licensee's license is suspended, revoked, surrendered, or expired, the licensee must, within five business days, provide documentation to the director that the licensee has notified all applicable authorized delegates of the licensee whose names are in a record filed with the director of the suspension, revocation, surrender, or expiration of a license. Upon suspension, revocation, surrender, or expiration of a license, applicable authorized delegates shall immediately cease to provide money transmission as an authorized delegate of the licensee.
(6) An authorized delegate of a licensee holds in trust for the benefit of the licensee all money net of fees received from money transmission. If any authorized delegate commingles any funds received from money transmission with any other funds or property owned or controlled by the authorized delegate, all commingled funds and other property shall be considered held in trust in favor of the licensee in an amount equal to the amount of money net of fees received from money transmission.
(7) An authorized delegate may not use a subdelegate to conduct money transmission on behalf of a licensee.
Source: SL 2024, ch 196, § 39.
51A-17-91. Prohibition if unlicensed.
A person shall not engage in the business of money transmission on behalf of a person not licensed under this chapter or not exempt pursuant to § 51A-17-53. A person that engages in such activity, provides money transmission to the same extent as if the person were a licensee, shall be jointly and severally liable with the unlicensed or nonexempt person.
Source: SL 2024, ch 196, § 40.
51A-17-92. Jurisdiction.
(1) The circuit court in an action brought by a licensee shall have jurisdiction to grant appropriate equitable or legal relief, including without limitation prohibiting the authorized delegate from directly or indirectly acting as an authorized delegate for any licensee in this state and the payment of restitution, damages, or other monetary relief if the circuit court finds that an authorized delegate failed to remit money in accordance with the written contract required by subdivision 51A-17-90(2) or as otherwise directed by the licensee or required by law.
(2) If the circuit court issues an order prohibiting a person from acting as an authorized delegate for any licensee pursuant to subdivision (1) of this section, the licensee that brought the action must report the order to the director within thirty days and must report the order through NMLS within ninety days.
(3) An authorized delegate who holds money in trust for the benefit of a licensee and knowingly fails to remit more than two thousand, five hundred dollars of such money is guilty of a Class 6 felony.
(4) An authorized delegate who holds money in trust for the benefit of a licensee and knowingly fails to remit no more than two thousand, five hundred dollars of such money is guilty of a Class 1 misdemeanor.
Source: SL 2024, ch 196, § 41.
51A-17-93. Licensee's duty to forward money received for transmission--Failure to forward.
(1) Every licensee shall forward all money received for transmission in accordance with the terms of the agreement between the licensee and the sender unless the licensee has a reasonable belief or a reasonable basis to believe that the sender may be a victim of fraud or that a crime or violation of law, rule, or regulation has occurred, is occurring, or may occur.
(2) If a licensee fails to forward money received for transmission in accordance with this section, the licensee must respond to inquiries by the sender with the reason for the failure unless providing a response would violate a state or federal law, rule, or regulation.
Source: SL 2024, ch 196, § 42.
51A-17-94. Exception--Request for refund by sender.
(1) This section does not apply to:
(a) Money received for transmission subject to the federal Remittance Rule, 12 C.F.R. § 1005.30 to § 1005.36, inclusive (January 1, 2024); or
(b) Money received for transmission pursuant to a written agreement between the licensee and payee to process payments for goods or services provided by the payee.
(2) Every licensee shall refund to the sender within ten days of receipt of the sender's written request for a refund of any and all money received for transmission unless any of the following occurs:
(a) The money has been forwarded within ten days of the date on which the money was received for transmission;
(b) Instructions have been given committing an equivalent amount of money to the person designated by the sender within ten days of the date on which the money was received for transmission;
(c) The agreement between the licensee and the sender instructs the licensee to forward the money at a time that is beyond ten days of the date on which the money was received for transmission. If funds have not yet been forwarded in accordance with the terms of the agreement between the licensee and the sender, the licensee shall issue a refund in accordance with the other provisions of this section; or
(d) The refund is requested for a transaction that the licensee has not completed based on a reasonable belief or a reasonable basis to believe that a crime or violation of law, rule, or regulation has occurred, is occurring, or may occur.
(e) The refund request does not enable the licensee to identify the sender's name and address or telephone number or identify the particular transaction to be refunded in the event the sender has multiple transactions outstanding.
Source: SL 2024, ch 196, § 43.
51A-17-95. Electronic receipt.
(1) Section 51A-17-96 does not apply to:
(a) Money received for transmission subject to the federal Remittance Rule, 12 C.F.R. Part 1005 Subpart B (January 1, 2024);
(b) Money received for transmission that is not primarily for personal, family, or household purposes;
(c) Money received for transmission pursuant to a written agreement between the licensee and payee to process payments for goods or services provided by the payee; or
(d) Payroll processing services.
(2) For purposes of this chapter, the term "receipt" means a paper receipt, electronic record, or other written confirmation. For a transaction conducted in person, the receipt may be provided electronically if the sender requests or agrees to receive an electronic receipt. For a transaction conducted electronically or by phone, a receipt may be provided electronically. All electronic receipts shall be provided in a retainable form.
Source: SL 2024, ch 196, § 44.
51A-17-96. Receipt for money received for transmission--Requirements for receipt.
Every licensee or its authorized delegate shall provide the sender a receipt for money received for transmission.
(1) The receipt shall contain the following information, as applicable:
(a) The name of the sender;
(b) The name of the designated recipient;
(c) The date of the transaction;
(d) The unique transaction or identification number;
(e) The name of the licensee, NMLS Unique ID, the licensee's business address, and the licensee’s customer service telephone number;
(f) The amount of the transaction in United States dollars;
(g) Any fee charged by the licensee to the sender for the transaction; and
(h) Any taxes collected by the licensee from the sender for the transaction.
(2) The receipt required by this section must be in English and in the language principally used by the licensee or authorized delegate to advertise, solicit, or negotiate, either orally or in writing, for a transaction conducted in person, electronically, or by phone, if other than English.
Source: SL 2024, ch 196, § 45.
51A-17-97. Required disclosure of division information on receipt or licensee's website.
In addition to the contact information required in subsection 51A-17-96(1)(e), every licensee or authorized delegate must include on a receipt or disclose on the licensee's website or mobile application the name and phone number of the division and a statement that the licensee's customers can contact the division with questions or complaints about the licensee's money transmission services.
Source: SL 2024, ch 196, § 46.
51A-17-98. Payroll processing services requirements.
(1) A licensee that provides payroll processing services must:
(a) Issue reports to clients detailing client payroll obligations in advance of the payroll funds being deducted from an account; and
(b) Make available worker paystubs or an equivalent statement to workers.
(2) Subdivision (1) of this section does not apply to a licensee providing payroll processing services where the licensee’s client designates the intended recipients to the licensee and is responsible for providing the disclosures required by subsection 1(b) of this section.
Source: SL 2024, ch 196, § 47.
51A-17-99. Tangible net worth of licensee.
(1) A licensee under this chapter must maintain at all times a tangible net worth of the greater of one hundred thousand dollars or three percent of total assets for the first one hundred million dollars, two percent of additional assets for one hundred million dollars to one billion dollars, and one-half of one percent of additional assets over one billion dollars.
(2) Tangible net worth must be demonstrated at initial application by the applicant’s most recent audited or unaudited financial statements pursuant to subsection 51A-17-61(2)(f).
(3) Notwithstanding the foregoing provisions of this section, the director shall have the authority, for good cause shown, to exempt, in-part or in whole, from the requirements of this section any applicant or licensee.
Source: SL 2024, ch 196, § 48.
51A-17-100. Surety bond--Amount of surety bond required.
(1) An applicant for a money transmission license must provide, and a licensee at all times must maintain, security consisting of a surety bond in a form satisfactory to the director or, with the director's approval, a deposit instead of a bond in accordance with this section.
(2) The amount of the required security shall be:
(a) The greater of one hundred thousand dollars or an amount equal to one hundred percent of the licensee's average daily money transmission liability in this state calculated for the most recently completed three-month period, up to a maximum of five hundred thousand dollars; or
(b) In the event that the licensee's tangible net worth exceeds ten percent of total assets, the licensee shall maintain a surety bond of one hundred thousand dollars.
(3) A licensee that maintains a bond in the maximum amount provided for in subsection 2(a) or (b) of this section, as applicable, shall not be required to calculate its average daily money transmission liability in this state for purposes of this section.
(4) A licensee may exceed the maximum required bond amount pursuant to subdivision 51A-17-102(5).
Source: SL 2024, ch 196, § 49.
51A-17-101. Maintenance of permissible investments.
(1) A licensee shall maintain at all times permissible investments that have a market value computed in accordance with United States generally accepted accounting principles of not less than the aggregate amount of all of its outstanding money transmission obligations.
(2) Except for permissible investments enumerated in § 51A-17-102, the director, with respect to any licensee, may by rule or order limit the extent to which a specific investment maintained by a licensee within a class of permissible investments may be considered a permissible investment, if the specific investment represents undue risk to customers, not reflected in the market value of investments.
(3) Permissible investments, even if commingled with other assets of the licensee, are held in trust for the benefit of the purchasers and holders of the licensee's outstanding money transmission obligations in the event of insolvency, the filing of a petition by or against the licensee under the United States Bankruptcy Code, 11 U.S.C. § 101 to 110 (January 1, 2024) for bankruptcy or reorganization, the filing of a petition by or against the licensee for receivership, the commencement of any other judicial or administrative proceeding for its dissolution or reorganization, or in the event of an action by a creditor against the licensee who is not a beneficiary of this statutory trust. No permissible investments impressed with a trust pursuant to this section shall be subject to attachment, levy of execution, or sequestration by order of any court, except for a beneficiary of this statutory trust.
(4) Upon the establishment of a statutory trust in accordance with subdivision (3) of this section or when any funds are drawn on a letter of credit pursuant to subdivision 51A-17-102(4), the director shall notify the applicable regulator of each state in which the licensee is licensed to engage in money transmission, if any, of the establishment of the trust or the funds drawn on the letter of credit, as applicable. Notice shall be deemed satisfied if performed pursuant to a multistate agreement or through NMLS. Funds drawn on a letter of credit, and any other permissible investments held in trust for the benefit of the purchasers and holders of the licensee's outstanding money transmission obligations, are deemed held in trust for the benefit of such purchasers and holders on a pro rata and equitable basis in accordance with statutes pursuant to which permissible investments are required to be held in this state, and other states, as applicable. Any statutory trust established hereunder shall be terminated upon extinguishment of all of the licensee's outstanding money transmission obligations.
(5) The director, by rule or by order, may allow other types of investments that the director determines are of sufficient liquidity and quality to be a permissible investment. The director is authorized to participate in efforts with other state regulators to determine that other types of investments are of sufficient liquidity and quality to be a permissible investment.
Source: SL 2024, ch 196, § 50.
51A-17-102. Permissible investments described.
The following investments are permissible under § 51A-17-101:
(1) Cash, including demand deposits, savings deposits, and funds in such accounts held for the benefit of the licensee's customers in a federally-insured depository financial institution, and cash equivalents, including ACH items in transit to the licensee and ACH items or international wires in transit to a payee, cash in transit via armored car, cash in smart safes, cash in licensee-owned locations, debit card or credit card-funded transmission receivables owed by any bank, or money market mutual funds rated "AAA" by S&P, or the equivalent from any eligible rating service;
(2) Certificates of deposit or senior debt obligations of an insured depository institution, as defined in section 3 of the Federal Deposit Insurance Act, 12 U.S.C. § 1813 (January 1, 2024) or as defined under the federal Credit Union Act, 12 U.S.C. § 1781 (January 1, 2024);
(3) An obligation of the United States or a commission, agency, or instrumentality thereof; an obligation that is guaranteed fully as to principal and interest by the United States; or an obligation of a state or a governmental subdivision, agency, or instrumentality thereof;
(4) The full drawable amount of an irrevocable standby letter of credit for which the stated beneficiary is the director that stipulates that the beneficiary need only draw a sight draft under the letter of credit and present it to obtain funds up to the letter of credit amount within seven days of presentation of the items required by § 51A-17-105; and
(5) One hundred percent of the surety bond or deposit provided for under § 51A-17-100 that exceeds the average daily money transmission liability in this state.
Source: SL 2024, ch 196, § 51.
51A-17-103. Letter of credit requirements.
The letter of credit referenced in subdivision 51A-17-102(4) must:
(1) Be issued by a federally-insured depository financial institution, a foreign bank that is authorized under federal law to maintain a federal agency or federal branch office in a state or states, or a foreign bank that is authorized under state law to maintain a branch in a state that bears an eligible rating or whose parent company bears an eligible rating and is regulated, supervised, and examined by United States federal or state authorities having regulatory authority over banks, credit unions, and trust companies;
(2) Be irrevocable, unconditional, and indicate that it is not subject to any condition or qualifications outside of the letter of credit;
(3) Not contain reference to any other agreements, documents or entities, or otherwise provide for any security interest in the licensee; and
(4) Contain an issue date and expiration date, and expressly provide for automatic extension, without a written amendment, for an additional period of one year from the present or each future expiration date, unless the issuer of the letter of credit notifies the director in writing by certified or registered mail or courier mail or other receipted means, at least sixty days prior to any expiration date, that the irrevocable letter of credit will not be extended.
Source: SL 2024, ch 196, § 52.
51A-17-104. Expiration of letter of credit--Funds held in trust by director.
In the event of any notice of expiration or non-extension of a letter of credit issued under subdivision 51A-17-102(4), the licensee shall be required to demonstrate to the satisfaction of the director, fifteen days prior to expiration, that the licensee maintains and will maintain permissible investments in accordance with subdivision 51A-17-101(1) upon the expiration of the letter of credit. If the licensee is not able to do so, the director may draw on the letter of credit in an amount up to the amount necessary to meet the licensee's requirements to maintain permissible investments in accordance with subdivision 51A-17-101(1). Any such draw shall be offset against the licensee's outstanding money transmission obligations. The drawn funds shall be held in trust by the director or the director’s designated agent, to the extent authorized by law, as agent for the benefit of the purchasers and holders of the licensee's outstanding money transmission obligations.
Source: SL 2024, ch 196, § 53.
51A-17-105. Documents issuer of letter of credit required to present prior to expiration of letter of credit.
The letter of credit referenced in subdivision 51A-17-102(4) shall provide that the issuer of the letter of credit will honor, at sight, a presentation made by the beneficiary to the issuer of the following documents on or prior to the expiration date of the letter of credit:
(1) The original letter of credit, including any amendments; and
(2) A written statement from the beneficiary stating that any of the following events have occurred:
(a) The filing of a petition by or against the licensee under the United States Bankruptcy Code, 11 U.S.C. § 101 to 110 (January 1, 2024) for bankruptcy or reorganization;
(b) The filing of a petition by or against the licensee for receivership or the commencement of any other judicial or administrative proceeding for its dissolution or reorganization;
(c) The seizure of assets of a licensee by a director pursuant to an emergency order issued in accordance with applicable law, on the basis of an action, violation, or condition that has caused or is likely to cause the insolvency of the licensee; or
(d) The beneficiary has received notice of expiration or non-extension of a letter of credit and the licensee failed to demonstrate to the satisfaction of the beneficiary that the licensee will maintain permissible investments in accordance with subdivision 51A-17-101(1) upon the expiration or non-extension of the letter of credit.
Source: SL 2024, ch 196, § 54.
51A-17-106. Designation by director of agent as beneficiary to a letter of credit.
The director may designate an agent to serve on the director's behalf as beneficiary to a letter of credit so long as the agent and letter of credit meet requirements established by the director. The director's agent may serve as agent for multiple licensing authorities for a single irrevocable letter of credit if the proceeds of the drawable amount for the purposes of this subdivision 51A-17-102(4) are assigned to the director.
Source: SL 2024, ch 196, § 55.
51A-17-107. Director to participate in multistate processes on letters of credit.
The director is authorized and encouraged to participate in multistate processes designed to facilitate the issuance and administration of letters of credit, including, but not limited to, services provided by the NMLS and State Regulatory Registry, LLC.
Source: SL 2024, ch 196, § 56.
51A-17-108. Additional permissible investments described.
Unless permitted by the director, by rule or by order, to exceed the limit as set forth herein, the following investments are permissible under § 51A-17-101 to the extent specified:
(1) Receivables that are payable to a licensee from its authorized delegates in the ordinary course of business that are less than seven days old, up to fifty percent of the aggregate value of the licensee's total permissible investments;
(2) Of the receivables permissible under subdivision (1) of this section, receivables that are payable to a licensee from a single authorized delegate in the ordinary course of business may not exceed ten percent of the aggregate value of the licensee's total permissible investments;
(3) The following investments are permissible up to twenty percent per category and combined up to fifty percent of the aggregate value of the licensee's total permissible investments:
(a) A short-term investment, an investment lasting up to six months, bearing an eligible rating;
(b) Commercial paper bearing an eligible rating;
(c) A bill, note, bond, or debenture bearing an eligible rating;
(d) U.S. tri-party repurchase agreements collateralized at one hundred percent or more with U.S. government or agency securities, municipal bonds, or other securities bearing an eligible rating;
(e) Money market mutual funds rated less than "AAA" and equal to or higher than "A-" by S&P or the equivalent from any other eligible rating service; and
(f) A mutual fund or other investment fund composed solely and exclusively of one or more permissible investments listed in subdivisions 51A-17-102(1) to (3), inclusive;
(4) Cash, including demand deposits, savings deposits, and funds in such accounts held for the benefit of the licensee's customers, at foreign depository institutions are permissible up to ten percent of the aggregate value of the licensee's total permissible investments if the licensee has received a satisfactory rating in its most recent examination and the foreign depository institution:
(a) Has an eligible rating;
(b) Is registered under the Foreign Account Tax Compliance Act;
(c) Is not located in any country subject to sanctions from the Office of Foreign Asset Control; and
(d) Is not located in a high-risk or non-cooperative jurisdiction as designated by the Financial Action Task Force.
Source: SL 2024, ch 196, § 57.
51A-17-109. Virtual currency.
A licensee transmitting virtual currencies shall hold like-kind virtual currencies of the same volume as that held by the licensee but that is obligated to consumers, in lieu of the permissible investments otherwise required in this chapter.
Source: SL 2024, ch 196, § 58.
51A-17-110. Suspension or revocation of license.
(1) The director may suspend or revoke a license or order a licensee to revoke the designation of an authorized delegate if:
(a) The licensee violates this chapter or a rule adopted or an order issued under this chapter;
(b) The licensee does not cooperate with an examination or investigation by the director;
(c) The licensee engages in fraud, intentional misrepresentation, or gross negligence;
(d) An authorized delegate is convicted of a violation of a state or federal anti-money laundering statute, or violates a rule adopted or an order issued under this chapter, as a result of the licensee's willful misconduct or willful blindness;
(e) The competence, experience, character, or general fitness of the licensee, authorized delegate, person in control of a licensee, key individual, or responsible person of the authorized delegate indicates that it is not in the public interest to permit the person to provide money transmission;
(f) The licensee engages in an unsafe or unsound practice;
(g) The licensee is insolvent, suspends payment of its obligations, or makes a general assignment for the benefit of its creditors; or
(h) The licensee does not remove an authorized delegate after the director issues and serves upon the licensee a final order including a finding that the authorized delegate has violated this chapter.
(2) In determining whether a licensee is engaging in an unsafe or unsound practice, the director may consider the size and condition of the licensee's money transmission, the magnitude of the loss, the gravity of the violation of this chapter, and the previous conduct of the person involved.
Source: SL 2024, ch 196, § 59.
51A-17-111. Suspension or revocation of an authorized delegate.
(1) The director may issue an order suspending or revoking the designation of an authorized delegate, if the director finds that:
(a) The authorized delegate violated this chapter or a rule adopted or an order issued under this chapter;
(b) The authorized delegate did not cooperate with an examination or investigation by the director;
(c) The authorized delegate engaged in fraud, intentional misrepresentation, or gross negligence;
(d) The authorized delegate is convicted of a violation of a state or federal anti-money laundering statute;
(e) The competence, experience, character, or general fitness of the authorized delegate or a person in control of the authorized delegate indicates that it is not in the public interest to permit the authorized delegate to provide money transmission; or
(f) The authorized delegate is engaging in an unsafe or unsound practice.
(2) In determining whether an authorized delegate is engaging in an unsafe or unsound practice, the director may consider the size and condition of the authorized delegate's provision of money transmission, the magnitude of the loss, the gravity of the violation of this chapter or a rule adopted or order issued under this chapter, and the previous conduct of the authorized delegate.
(3) An authorized delegate may apply for relief from a suspension or revocation of designation as an authorized delegate according to procedures prescribed by the director.
Source: SL 2024, ch 196, § 60.
51A-17-112. Cease and desist order by director.
(1) If the director determines that a violation of this chapter or of a rule adopted or an order issued under this chapter by a licensee or authorized delegate is likely to cause immediate and irreparable harm to the licensee, its customers, or the public as a result of the violation, or cause insolvency or significant dissipation of assets of the licensee, the director may issue an order requiring the licensee or authorized delegate to cease and desist from the violation. The order becomes effective upon service of it upon the licensee or authorized delegate.
(2) The director may issue an order against a licensee to cease and desist from providing money transmission through an authorized delegate that is the subject of a separate order by the director.
(3) An order to cease and desist remains effective and enforceable pending the completion of an administrative proceeding pursuant to chapter 1-26.
(4) A licensee or an authorized delegate that is served with an order to cease and desist may petition the circuit court, for a judicial order setting aside, limiting, or suspending the enforcement, operation, or effectiveness of the order pending the completion of an administrative proceeding pursuant to chapter 1-26.
(5) An order to cease and desist expires unless the director commences an administrative proceeding pursuant to chapter 1-26 within ten days after it is issued.
Source: SL 2024, ch 196, § 61.
51A-17-113. Consent order.
The director may enter into a consent order at any time with a person to resolve a matter arising under this chapter or a rule adopted or order issued under this chapter. A consent order must be signed by the person to whom it is issued or by the person's authorized representative and must indicate agreement with the terms contained in the order. A consent order may provide that it does not constitute an admission by a person that this chapter or a rule adopted or an order issued under this chapter has been violated.
Source: SL 2024, ch 196, § 62.
51A-17-114. False statement, misrepresentation, or false certification--Service without license--Penalty.
(1) A person that intentionally makes a false statement, misrepresentation, or false certification in a record filed or required to be maintained under this chapter or that intentionally makes a false entry or omits a material entry in such a record is guilty of a Class 6 felony.
(2) A person that knowingly engages in an activity for which a license is required under this chapter without being licensed under this chapter and who receives more than five hundred dollars in compensation within a thirty-day period from this activity is guilty of a Class 6 felony.
(3) A person that knowingly engages in an activity for which a license is required under this chapter without being licensed under this chapter and who receives no more than five hundred dollars in compensation within a thirty-day period from this activity is guilty of a Class 1 misdemeanor.
Source: SL 2024, ch 196, § 63.
51A-17-115. Civil penalty.
The director may assess a civil penalty against a person that violates this chapter or a rule adopted or an order issued under this chapter in an amount not to exceed one thousand dollars per day for each day the violation is outstanding, plus this state's costs and expenses for the investigation and prosecution of the matter, including reasonable attorney's fees.
Source: SL 2024, ch 196, § 64.
51A-17-116. Order to cease and desist--Service.
(1) If the director has reason to believe that a person has violated or is violating § 51A-17-59, the director may issue an order to show cause why an order to cease and desist should not issue requiring that the person cease and desist from the violation of § 51A-17-59.
(2) In an emergency, the director may petition the circuit court for the issuance of a temporary restraining order ex parte pursuant to the rules of civil procedure.
(3) An order to cease and desist becomes effective upon service of it upon the person.
(4) An order to cease and desist remains effective and enforceable pending the completion of an administrative proceeding pursuant to chapter 1-26.
(5) A person that is served with an order to cease and desist for violating § 51A-17-59 may petition the circuit court for a judicial order setting aside, limiting, or suspending the enforcement, operation, or effectiveness of the order pending the completion of an administrative proceeding pursuant to chapter 1-26.
(6) An order to cease and desist expires unless the director commences an administrative proceeding within ten days after it is issued.
Source: SL 2024, ch 196, § 65.
51A-17-117. Uniformity.
In applying and construing this chapter, consideration must be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.
Source: SL 2024, ch 196, § 66.
51A-17-118. Validity--Provisions severable.
If any provision of this chapter or its application to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of this chapter which can be given effect without the invalid provision or application, and to this end, the provisions of this chapter are severable.
Source: SL 2024, ch 196, § 67.
51A-17-119. Effective date.
(1) A person licensed in this state to engage in the business of money transmission shall not be subject to the provisions of this chapter, to the extent that the provisions conflict with current law or establish new requirements not imposed under current law, until such time as the licensee renews its current license or for six months after the effective date of this chapter, whichever is later.
(2) Notwithstanding subdivision (1) of this section, a licensee shall only be required to amend its authorized delegate contracts for contracts entered into or amended after the effective date or the completion of any transition period contemplated under this section. Nothing herein shall be construed as limiting an authorized delegate’s obligations to operate in full compliance with this chapter as required by subdivision 51A-17-90(3).
Source: SL 2024, ch 196, § 68.
51A-17-120. Consent to South Dakota jurisdiction.
Any person who engages in business activity regulated by this chapter in the state is deemed to have consented to the jurisdiction of the courts of South Dakota for all actions arising under this chapter.
Source: SL 2024, ch 196, § 69.
51A-17-121. Deposit of moneys--Banking special revenue fund.
Any money coming into the custody of the division pursuant to this chapter shall be deposited with the state treasurer. The state treasurer shall credit the money to the banking special revenue fund. Any expenditure of money out of the fund may only be made by appropriation by the Legislature through either the General Appropriation Act or a special appropriation bill. The director shall approve vouchers and the state auditor shall draw warrants to pay expenditures authorized by this chapter.
Source: SL 2024, ch 196, § 70.
51A-17-122. Sharing of information collected and retained by the director.
The following provisions apply to the sharing of information collected and retained by the director during the administration of this chapter:
(1) The provisions of § 51A-17-55 regarding privacy or confidentiality apply to any information or material provided to the nationwide mortgage licensing system and registry, and any privilege arising under federal or state law, including any rule of a federal or state court, with respect to the information or material, continue to apply to the information or material after the information or material has been disclosed to the nationwide mortgage licensing system and registry. The information and material may be shared with a state or federal regulatory official who has money transmission industry oversight authority without the loss of privilege or the loss of confidentiality protections by federal law or § 51A-17-55; and
(2) No information or material that is subject to privilege or confidentiality pursuant to this section is subject to:
(a) Disclosure under any federal or state law governing the disclosure to the public of information held by an officer or an agency of the federal government or the respective state; or
(b) Subpoena or discovery, or admission into evidence, in any private civil action or administrative process, unless with respect to any privilege held by the nationwide mortgage licensing system and registry regarding the information or material is waived, in whole or in part, by the person to whom the information or material pertains.
This section does not apply to the information or material relating to the employment history of, and publicly adjudicated disciplinary and enforcement actions against, money transmitters that is included in the nationwide mortgage licensing system and registry for access by the public.
Source: SL 2024, ch 196, § 71.