TITLE 5

Banking

State Banking Agencies

CHAPTER 1. STATE BANK COMMISSIONER

Subchapter I. General Provisions


For the purpose of this Code and any other laws of this State relating to banks or banking, unless otherwise specifically defined, or unless another intention clearly appears, or unless the context requires a different meaning:

(1) "Affiliate" means a person that directly or indirectly through 1 or more intermediaries, controls or is controlled by or is under common control with, the person specified.

(2) "Automated service branch" means an automated teller machine, cash dispensing machine or other electronic facility located in this State installed or operated by any bank, remote from its main office or any branch office, by which funds may be deposited into or withdrawn from established accounts, advances may be obtained against previously authorized lines of credit, transfers of funds between accounts may be made, loan and other payments may be made or cash may be received or dispensed.

(3) "Bank" means every bank and every corporation conducting a banking business of any kind or plan whose principal place of business is in this State, except a national bank.

(4) "Banking organization" means:

a. A bank or bank and trust company organized and existing under the laws of this State;

b. A national bank, including a federal savings bank, with its principal office in this State;

c. An Edge Act corporation organized pursuant to § 25(a) of the Federal Reserve Act, 12 U.S.C. § 611 et seq., or a state chartered corporation exercising the powers granted thereunder pursuant to an agreement with the Board of Governors of the Federal Reserve System, and maintaining an office in this State;

d. A federal branch or agency licensed pursuant to § 4 and § 5 of the International Banking Act of 1978, 12 U.S.C. § 3101 et seq., to maintain an office in this State;

e. A foreign bank branch, foreign bank limited purpose branch or foreign bank agency organized pursuant to Chapter 14 of this title, or a resulting branch in this State of a foreign bank authorized pursuant to Chapter 14 of this title; or

f. A resulting branch in this State of an out-of-state bank (as defined in § 795 of this title, and also including branch offices in this State of an out-of-state bank, as defined in § 795 of this title).

(5) The terms "borrowing," "deposit" and "extension of credit" as they relate to the activities of international banking facilities shall have the meanings ascribed to them in pertinent regulations adopted by the Board of Governors of the Federal Reserve System, as such regulations may be amended from time to time.

(6) "Capital stock" means both common stock and preferred stock.

(7) "Commissioner" means the State Bank Commissioner.

(8) "Control" means, directly or indirectly or acting through one or more other persons, to own, control or have the power to vote 25 percent or more of any class of voting securities, to control in any manner the election of a majority of the directors or trustees, or to exercise a controlling influence over the management or policies of a bank, trust company, other financial institution or any other company.

(9) "Financial institution" means any bank, trust company or other institution or person either licensed under this title or subject to the supervision and regulation of the State Bank Commissioner.

(10) "Foreign bank" means any company organized under the laws of a foreign country, a territory of the United States, Puerto Rico, Guam, American Samoa or the Virgin Islands, which engages in the business of banking, or any subsidiary or affiliate, organized under such laws, of any such company. The term "foreign bank" includes, without limitation, foreign commercial banks, foreign merchant banks and other foreign institutions that engage in banking activities usual in connection with the business of banking in the countries where such foreign companies are organized or operating.

(11) "Foreign bank agency" means an office in this State of a foreign bank that is exercising the powers authorized by § 1404(b) of this title.

(12) "Foreign bank branch" means an office in this State of a foreign bank that is exercising the powers authorized by § 1404(a) of this title.

(13) "Foreign bank limited purpose branch" means an office in this State of a foreign bank that is exercising the powers authorized by § 1404(c) of this title.

(14) "Foreign country" means any country other than the United States, and includes any colony, dependency or possession of any such country.

(15) "International banking facility" means a set of asset and liability accounts, segregated on the books and records of a banking organization, that includes only international banking facility deposits, borrowings and extensions of credit.

(16) "International banking transaction" means any of the following transactions, whether engaged in by a banking organization, any foreign branch thereof (established pursuant to § 771 of this title or federal law) or any subsidiary corporation directly or indirectly owned by any banking organization:

a. The financing of the exportation from, or the importation into, the United States or between jurisdictions abroad of tangible property or services;

b. The financing of the production, preparation, storage or transportation of tangible personal property or services which are identifiable as being directly and solely for export from, or import into, the United States or between jurisdictions abroad;

c. The financing of contracts, projects or activities to be performed substantially abroad, except those transactions secured by a mortgage, deed of trust or other lien upon real property located in this State;

d. The receipt of deposits or borrowings or the extensions of credit by an international banking facility, except the loan or deposit of funds secured by mortgage, deed of trust or other lien upon real property located in this State;

e. The underwriting, distributing and dealing in debt and equity securities outside of the United States and the conduct of any activities permissible to a banking organization described in subsection (4)c. of this section, or any of its subsidiaries, in connection with the transaction of banking or other financial operations; or

f. The entering into foreign exchange trading or hedging transactions in connection with the activities described in paragraphs a. through e. of this subdivision.

(17) "National bank" means a banking association organized under the authority of the United States and having a principal place of business in this State.

(18) "Person" means an individual or a corporation, partnership, trust, association, joint venture, pool, syndicate, sole proprietorship, unincorporated association or any other form of entity not specifically listed herein.

(19) "Representative office" means an office in this State of a foreign bank that is exercising the powers authorized by § 1423 of this title.

(20) "Subsidiary" means any association, corporation, partnership, statutory trust, business trust or other similar organization, having offices and exercising its powers within or without the State, that is controlled by a bank, trust company, other financial institution or any other company through:

a. Direct or indirect ownership or control of 25 percent or more of the voting rights;

b. Control of the election of majority of the directors; or

c. The power, directly or indirectly, to exercise a controlling influence over the management or policies of the organization.

(21) "Trust company" means a trust company or corporation or limited liability company doing a trust company business which has a principal place of business in this State.

32 Del. Laws, c. 103, § 1; Code 1935, §§ 2274, 2289; 5 Del. C. 1953, § 101; 60 Del. Laws, c. 349, § 1; 61 Del. Laws, c. 544, § 1; 64 Del. Laws, c. 43, § 2; 65 Del. Laws, c. 444, § 2; 66 Del. Laws, c. 27, § 2; 68 Del. Laws, c. 303, §§ 1, 2; 69 Del. Laws, c. 165, §§ 1-4; 70 Del. Laws, c. 16, §§ 1, 2; 70 Del. Laws, c. 112, §§ 1-4; 71 Del. Laws, c. 254, § 2; 72 Del. Laws, c. 15, § 2; 72 Del. Laws, c. 35, §§ 2-5; 73 Del. Laws, c. 329, § 3; 76 Del. Laws, c. 383, § 1.;

(a) The State Bank Commissioner may appoint not more than 2 deputies and may employ such personnel as shall be necessary for making examinations of and giving adequate supervision over the corporations under the jurisdiction of the State Bank Commissioner. The Commissioner shall lend such aid and counsel to the officers and directors of those corporations as the situation or the circumstances may require, and in general, properly conduct the affairs of the Commissioner's office and discharge in a proper manner the duties imposed upon the Commissioner by law.

(b) The tenure, duties and compensation of the persons appointed or employed under subsection (a) of this section shall be determined by the State Bank Commissioner as provided by law, in a manner consistent with the Merit System of Personnel Administration, Chapter 59 of Title 29, where applicable.

(c) Upon the removal, resignation, death or disability of any person appointed or employed under subsection (a) of this section, the vacancy may be filled by the State Bank Commissioner.

30 Del. Laws, c. 111, § 2; 36 Del. Laws, c. 89, § 2; 38 Del. Laws, c. 92, § 1(2); Code 1935, § 2275; 43 Del. Laws, c. 135, § 1; 48 Del. Laws, c. 225, § 1; 5 Del. C. 1953, § 103; 49 Del. Laws, c. 16; 57 Del. Laws, c. 740, §§ 16B-16D; 61 Del. Laws, c. 385, § 1; 68 Del. Laws, c. 303, §§ 3, 4; 70 Del. Laws, c. 186, § 1.;

The Commissioner and the employees who work for the Commissioner shall be selected with respect to their knowledge of and experience in banking and accounting. The Commissioner shall be a resident of the State. The Commissioner and the employees who work for the Commissioner shall not be stockholders in any corporation coming under this title.

30 Del. Laws, c. 111, § 3; 38 Del. Laws, c. 92, § 1(3); Code 1935, § 2276; 5 Del. C. 1953, § 104; 57 Del. Laws, c. 740, §§ 16E, 16F; 61 Del. Laws, c. 359, § 1; 68 Del. Laws, c. 303, § 5.;

(a) The principal office of the Commissioner shall be in Dover. The necessary expenses of the office, the salaries or compensation of the Commissioner and the employees who work for the Commissioner, and the necessary expenses incurred by them in the performance of their respective duties shall be paid by the Secretary of Finance when and as vouchers therefor are presented to him or her by the Commissioner or the Secretary of State.

(b) There is hereby created within the State Treasury a special fund to be designated as the State Bank Commissioner Regulatory Revolving Fund which shall be used in the operation of the Office of the State Bank Commissioner in the performance of the various functions and duties required of the Office by law.

(c) All supervisory assessments, examination fees, payment for costs and expenses in acting as a receiver, reimbursement for expenses incurred in the operation of the office and any investigation fees collected by the Commissioner pursuant to this title shall be deposited in the State Treasury to the credit of said State Bank Commissioner Regulatory Revolving Fund to be used in the operation of the Office as authorized by the General Assembly in its annual operating budget. All other fees and/or taxes collected by the Commissioner shall not be deposited in said fund but shall be deposited in the General Fund.

(d) Money reposing in the State Bank Commissioner Regulatory Revolving Fund shall be used by the Commissioner in the performance of the Commissioner's various functions and duties as provided by law, subject always to annual appropriations by the General Assembly for salaries and other routine operating expenses of the Office. The Council on Banking shall submit comments on the budget request of the Commissioner to the Secretary of State, the Governor and members of the General Assembly.

(e) The maximum unencumbered balance which shall remain in the State Bank Commissioner Regulatory Revolving Fund at the end of any fiscal year shall be 15 percent of the total budget for the previous year and any amount in excess thereof shall be reverted to each financial institution in an amount proportionate to the sum paid by that financial institution in the previous calendar year pursuant to § 127(b) of this title in such a manner as prescribed by the State Bank Commissioner and submitted to the Council on Banking.

30 Del. Laws, c. 111, § 4; 38 Del. Laws, c. 92, § 1(4); Code 1935, § 2277; 42 Del. Laws, c. 77; 43 Del. Laws, c. 135, § 2; 5 Del. C. 1953, § 105; 57 Del. Laws, c. 740, §§ 16E, 16G-16I; 61 Del. Laws, c. 435, §§ 1-3; 63 Del. Laws, c. 195, § 1B; 67 Del. Laws, c. 60, § 1; 68 Del. Laws, c. 303, § 6; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 19, §§ 1, 2.;

The Commissioner shall use the official seal, a full description of which, with the impress thereof, has heretofore been filed in the office of the Secretary of State. Such seal shall continue to be the official seal of the Commissioner until changed by authority of law.

30 Del. Laws, c. 111, § 5; Code 1935, § 2278; 5 Del. C. 1953, § 106.;

The Commissioner shall make an annual report of all the Commissioner's official acts to the Governor.

30 Del. Laws, c. 111, § 14; Code 1935, § 2287; 5 Del. C. 1953, § 107; 70 Del. Laws, c. 186, § 1.;

The Commissioner, Deputy Commissioners, examiners or compliance reviewers employed by the Commissioner, or such person's spouse or such person's son or daughter residing at such person's residence shall not obtain a loan or utilize credit from any financial institution. To the extent that a licensee subject to the provisions of Chapter 22 or 29 of this title is examined solely for purposes of determining compliance with State law and consumer protection statutes, the above shall not apply unless the Commissioner finds that an actual conflict may arise. For the purposes of this section, an entity shall not be considered supervised or regulated by the Office of the State Bank Commissioner solely because it is exempt under § 2202 of this title or because it is subject to an escheat examination conducted by the Office of the State Bank Commissioner. The prohibition contained above shall not be construed as prohibiting such persons from being a depositor or member of any such financial institution on the same terms as available to the public generally.

61 Del. Laws, c. 359, § 2; 69 Del. Laws, c. 165, § 5; 71 Del. Laws, c. 254, § 3.;