AGO 88-9.
Case Date | December 12, 1988 |
Court | Colorado |
Colorado Attorney General Opinions
1988.
AGO 88-9.
December 12, 1988Department of
Law
Attorney General Opinion FORMAL
OPINION of DUANE WOODARD
Attorney General Opinion No. 88-9
AG Alpha No.
RG SL AGAQX David L.
Paul
Commissioner
Division of Savings and Loan
State of Colorado
1560 Broadway, Suite 705
Denver, Colorado 80202 RE: Applicability of Section 18-5-210, C.R.S. (1986) to savings
and loan associations operating in Colorado.Dear Mr. Paul:
This opinion letter is in response to your November 1, 1988,
letter in which you inquired about the applicability of Section 18-5-210,
C.R.S. (1986) to savings and loan associations operating in Colorado. Section
18-5-210 prohibits an officer, manager, or other person participating in the
management of a financial institution from knowingly receiving or permitting
receipt of a deposit if he or she knows that the institution is insolvent.
QUESTIONS PRESENTED AND CONCLUSIONS
Your request for an attorney general's opinion presents the
following questions:
Whether officers and managers of an insolvent federally-chartered
savings and loan association may be criminally prosecuted by the State under
Section 18-5-210, C.R.S. (1986) for accepting deposits?
No.
Whether officers and managers of an insolvent state-chartered
savings and loan association may be criminally prosecuted by the State under
Section 18-5-210, C.R.S. (1986) for accepting deposits?
Yes, unless they are doing so pursuant to the terms of an
agreement, authorized by federal law, between the institution and the Federal
Home Loan Bank Board.
ANALYSIS
A dual banking system, consisting of state and national banks and
state and federal regulatory authorities, has been in existence in the United
States since 1791, when the First Bank of the United States was chartered.
Competing state and federal interests have caused significant changes through
the years, but states have traditionally had a significant role in the
regulation of banks and other financial institutions. SeeNational State Bank v. Long, 630 F.2d 981 (3d Cir. 1980).
Laws passed by Congress in the early 1930s established the
current structure of federal regulatory authority over savings and loan
associations. In 1932, the Federal Home Loan Bank Act, codified at 12 U.S.C.
Sections 1421 to 1449 (1982), created the Federal Home Loan Bank Board
(hereinafter "FHLBB") and established a hierarchial federal system to supervise
the savings and loan industry. The system consists of the FHLBB, regional
Federal Home Loan Banks, and the Home Loan Banks' member institutions, which
may be federally-chartered or state-chartered savings and loan institutions. In
1933, The Home Owners' Loan Act, codified at 12 U.S.C. Sections 1461 to 1470
(1982) (hereinafter "HOLA"), authorized the FHLBB to provide for the
organization, incorporation, examination, operation, and regulation of federal
savings and loan associations. In 1934, The National Housing Act, codified at
12 U.S.C. Sections 1701 to 1706 (1982), created the Federal Savings and Loan
Insurance Corporation (hereinafter "FSLIC") and placed it under the authority
of the FHLBB. The FSLIC insures funds deposited with all federally-chartered
savings and loan associations and those state-chartered savings and loan
associations which elect to become insured,(fn1) and administers insurance
payouts and liquidation procedures if an insured institution fails.
The FHLBB was given authority to issue rules and regulations
which it deemed necessary to carry out the purposes of the National Housing
Act. See 12 U.S.C. Sections 1725(a) , 1730 (e) and (m) (1982). The
FHLBB has, in fact, promulgated a great many regulations concerning the
operation of savings and loan associations. One such regulation, which deals
with regulatory capital requirements, provides:
Failure to meet regulatory capital requirements. If
an insured institution fails to meet...
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