ORS Chapter 709 - Oregon Statutes

Chapter 709 — Regulationof Trust Business

 

2009 EDITION

 

 

REGULATIONOF TRUST BUSINESS

 

FINANCIALINSTITUTIONS

 

ORGANIZATION

 

709.005     Certificateof authority to transact trust business; application; contents; fee; exceptions

 

709.015     Organizationas limited liability company

 

709.030     Approvalto transact trust business; exceptions; deposit of cash, securities, letter ofcredit or surety bond with director; amount

 

709.040     Securitieseligible for deposit

 

709.050     Trustcompanies depositing securities guaranteed by mortgage insurance and mortgageparticipation certificates

 

709.060     Primaryliability of deposit

 

709.070     Rightof action against deposit

 

709.080     Chargesfor handling securities; collection procedure

 

709.110     Depositof documents with notes or bonds

 

709.120     Substitutionof deposit securities; income of securities deposited

 

709.130     Indemnitybond when cash and securities of one trust exceed stockholders’ equity of trustcompany

 

709.140     Returnof deposit; liability of state

 

709.145     Investmentof capital

 

GENERALPOWERS

 

709.150     Generalpowers of trust companies

 

709.160     Solicitationand performance of legal business

 

709.170     Establishmentof and investment in common trust funds; rules; accounting

 

709.175     Limitationon investment of trust funds; exceptions

 

709.190     Trustdepartment kept separate; records of securities; retention of records

 

709.200     Acquisitionor investment of trust property in own name or name of nominee

 

709.210     Disclosureof fiduciary character or terms of trust instrument

 

709.220     Handlingof funds awaiting investment or distribution; security for use of funds

 

709.240     Oathand bond exemption for trust company appointed as fiduciary

 

709.270     Disclosureof communications and writings

 

709.280     Loansto directors, officers, employees or affiliates

 

709.290     Closingof trust unduly delayed

 

709.300     Transactionof trust business by national bank

 

709.330     Saleor transfer of assets or liabilities; effect on fiduciary relations

 

709.335     Digitalsignatures

 

TERMINATIONOF TRUST BUSINESS

 

709.340     Trustcompany quitting business; examination

 

709.350     Successortrustee upon liquidation or receivership; appointment and qualification;petition by director; applicability of state laws

 

709.390     Discontinuanceof trust business; determination of claims against deposit of securities

 

709.400     Orderto start court action; publication of order; jurisdiction over securities;notice to trustor; applicability of state laws

 

709.410     Terminationof right to do trust business

 

709.420     Actionsor suits on claims; service of summons; preference on calendar

 

709.430     Releaseor payment of deposit pending suit; distribution of deposits upon determinationof suit

 

709.440     Director’scharges as prior lien on deposit

 

709.450     Saleand disposition of securities to pay expenses, costs and claims

 

709.460     Applicationof ORS 709.390 to 709.450 to merger or consolidation; return of securitydeposit after merger or consolidation

 

CONVERSION,MERGER AND ACQUISITION

 

709.520     Conversionto out-of-state trust company; conversion to Oregon trust company; procedures

 

709.525     Mergeror acquisition; procedures

 

709.530     Applicabilityof ORS 711.190, 711.197 and 711.199 to merging or converting trust company

 

709.535     Saleof assets or transfer of liabilities; approval by stockholders and director;appeal

 

709.540     Rightsof stockholder of trust company party to merger, share exchange or acquisition

 

MISCELLANEOUS

 

709.600     Regulationof trust business by corporations formed prior to adoption of Bank Act;regulation of other business

 

PENALTIES

 

709.980     Civilpenalties

 

ORGANIZATION

 

      709.005Certificate of authority to transact trust business; application; contents;fee; exceptions.(1) Except as provided in ORS 709.030 (4) or in subsection (4) of this section,no company shall transact any trust business in this state until the companyhas obtained a certificate of authority from the Director of the Department ofConsumer and Business Services under this section, authorizing the company totransact trust business in this state.

      (2)To procure a certificate of authority to transact trust business in this state,a company to whom this section applies shall file a written application withthe director, which shall contain or be accompanied by:

      (a)The name of the company.

      (b)The state or country under the laws of which the company is organized.

      (c)The date of incorporation or other organization of the company.

      (d)The period of duration of the company, if the duration is not perpetual.

      (e)A mailing address to which the director may send notices.

      (f)The address of the principal office of the company in the state or countryunder the laws of which it is organized.

      (g)The street address of the proposed registered office of the company in thisstate and the name of its proposed registered agent, who shall be amenable toservice of process at that address.

      (h)A brief statement setting forth any background and experience of the company inconducting a trust business in the state or country in which it is organized,and its qualifications to transact trust business in this state.

      (i)The names and addresses of the chief executive officer and the secretary of thecompany.

      (j)Any additional information that the director may by rule require.

      (k)The verified signature of the chief executive officer of the company,certifying that all information contained in the application is true, accurateand complete.

      (L)A certificate of existence, a certificate of good standing, a statuscertificate or a document of similar import, current within 60 days of makingapplication under this section and duly authenticated by the official withcustody of the corporate or other records in the state, province or countryunder the laws of which the company is organized.

      (m)A certificate of authorization for a foreign corporation, or a copy of theapplication for authority to transact business in this state as a foreigncorporation as filed with the Secretary of State, current within 60 days ofmaking application under this section and duly authenticated by the Secretaryof State evidencing the authorization of the company, or application forauthorization, to transact business as a foreign corporation under ORS chapter60.

      (n)An application fee of $2,500, provided that no application fee shall be chargedunder this paragraph:

      (A)If the applicant is concurrently applying for a charter under ORS chapter 707;or

      (B)If the director reduces or waives the application fee.

      (3)If the director finds that the application conforms to the requirements ofsubsection (2) of this section and that the applicant is qualified byexperience to transact trust business in this state, the director shall directthe applicant to make the security deposit required under ORS 709.030, and whenthe deposit is made, the director shall issue and send to the company acertificate of authority to transact business.

      (4)The requirement to procure a certificate of authority under this section shallnot apply to the extent preempted by federal law, or to any bank lawfullytransacting trust business in this state on October 4, 1997. [1997 c.631 §229;1999 c.107 §3]

 

      709.010 [Repealed by1973 c.797 §428]

 

      709.015Organization as limited liability company. (1) As an alternative to beingorganized as a corporation pursuant to the provisions of ORS chapter 707 andthis chapter, an Oregon trust company may be organized as a limited liabilitycompany.

      (2)With respect to any Oregon trust company that is organized as a limitedliability company, as used in the Bank Act:

      (a)“Articles of incorporation” means the Oregon trust company’s articles oforganization, as defined in ORS 63.001.

      (b)“Bylaws” means the Oregon trust company’s operating agreement, as defined inORS 63.001.

      (c)“Certificate of incorporation” means a certificate of organization issued tothe Oregon trust company.

      (d)“Corporation” means a limited liability company, as defined in ORS 63.001.

      (e)“Director,” “directors” or “board of directors” means the Oregon trust company’smanager or managers, as defined in ORS 63.001.

      (f)“Dividends” means distributions, as defined in ORS 63.001, declared or paid bythe Oregon trust company.

      (g)“Incorporator” means the Oregon trust company’s organizer, as defined in ORS63.001.

      (h)“Share” or “stock” means a membership interest in the Oregon trust company, asdefined in ORS 63.001.

      (i)“Stockholder,” “stockholders,” “shareholder” or “shareholders” means the Oregontrust company’s member or members, as defined in ORS 63.001.

      (3)An Oregon trust company organized as a limited liability company shall beorganized under the authority of the Director of the Department of Consumer andBusiness Services under this chapter and ORS chapter 707. Except as set forthin subsection (4) of this section, with respect to all other aspects of its operationand existence, an Oregon trust company that is organized as a limited liabilitycompany is subject to the provisions of ORS chapter 63, to the extent that ORSchapter 63 does not conflict with the Bank Act. In the event of any conflictbetween the Bank Act and ORS chapter 63, the Bank Act controls.

      (4)(a)Notwithstanding any provision of ORS chapter 63, the articles of organizationof an Oregon trust company that is organized as a limited liability companyshall:

      (A)State that the existence of the Oregon trust company is perpetual; and

      (B)Provide that the Oregon trust company is to be managed by a board of not fewerthan five managers.

      (b)Notwithstanding any provision of ORS chapter 63, an Oregon trust company thatis organized as a limited liability company shall be managed exclusively by itsboard of managers in substantially the same manner as an Oregon trust companythat is organized as a corporation is managed by its board of directors. Theboard of managers of an Oregon trust company that is organized as a limitedliability company has substantially the same rights, powers, privileges, dutiesand responsibilities as the board of directors of an Oregon trust company thatis organized as a corporation and is subject to the provisions of ORS chapter707 and this chapter pertaining to directors.

      (c)Notwithstanding any provision of ORS chapter 63, membership interests in anOregon trust company that is organized as a limited liability company arefreely transferable, and consent of the Oregon trust company or its members ormanagers is not required for a person to acquire or transfer a membershipinterest in the Oregon trust company. Immediately upon the completion of thetransfer of the membership interest to a person, the person becomes a member,and has all the rights of a member.

      (d)ORS 63.621 (2) to (4) do not apply to an Oregon trust company organized as alimited liability company.

      (5)The articles of organization of an Oregon trust company that is organized as alimited liability company shall require that liquidation of the Oregon trustcompany conform with the requirements of the Bank Act.

      (6)An Oregon trust company that is organized as a limited liability company shallhave the officers described in ORS 707.700. The officers shall be elected bythe board of managers of the Oregon trust company and shall be subject to theprovisions of this chapter and ORS chapter 707.

      (7)Each Oregon trust company that is organized as a limited liability companyshall have a written operating agreement containing any provisions for theaffairs of the Oregon trust company as may be agreed upon by its members andthat are consistent with the Bank Act.

      (8)Any number of persons, not fewer than five, may act as organizers of an Oregontrust company that is organized as a limited liability company. [2005 c.134 §4]

 

      709.020 [Amended by1973 c.428 §10; repealed by 1973 c.797 §428]

 

      709.030Approval to transact trust business; exceptions; deposit of cash, securities,letter of credit or surety bond with director; amount. (1) Except asprovided in subsection (4) of this section, no person other than a trustcompany shall transact a trust business in this state. Except as provided insubsection (4) of this section, before a person transacts any trust business inthis state, the person shall obtain the approval of the Director of theDepartment of Consumer and Business Services if required under ORS 709.005 andshall deposit with the director, as security and as a pledge for the faithfulconduct of its trust business:

      (a)Cash or interest-bearing securities that have a ready market value;

      (b)A surety bond issued by a surety company authorized to transact business inthis state and in a form approved by the director, under which the principaland surety indemnify the several owners of the fund held in trust against lossdue to the failure of the trust company;

      (c)An irrevocable letter of credit issued by an insured institution, as defined inORS 706.008; or

      (d)Any combination of cash, letters of credit, interest-bearing securities andsurety bond.

      (2)If the cash and securities held in trust amount to less than $1 million, thedeposit, bond, letters of credit or combination thereof shall be $50,000. Ifthe cash and securities held in trust amount to at least $1 million but do notexceed $1.5 million, the deposit, bond, letters of credit or combinationthereof shall be $100,000. For each $500,000 or fraction thereof in excess of$1.5 million held in trust, the deposit, bond, or letters of credit or combinationthereof shall be increased an additional $25,000, except a trust company shallnot be required to increase the deposit, bond, letters of credit or combinationthereof to an amount in excess of $1 million.

      (3)The securities shall be deposited with the director and held by the director astrustee for the beneficiaries of the trust funds held by the trust company.

      (4)A person shall not be required to be a trust company if the person:

      (a)Does not and will not regularly transact trust business in the ordinary courseof the person’s business;

      (b)Acts in a manner authorized by law and in the scope of authority as an agent ofa trust company;

      (c)Is an attorney rendering a service customarily performed by an attorney;

      (d)Is acting as trustee under a deed of trust;

      (e)Is a licensed real estate broker or principal real estate broker rendering aservice customarily performed by a broker;

      (f)Is a licensed escrow agent rendering a service customarily performed by anescrow agent; or

      (g)Is exempt from the provisions of subsection (1) of this section by rule of thedirector. [Amended by 1957 c.82 §1; 1967 c.139 §1; 1973 c.797 §183a; 1979 c.88 §12;1981 c.192 §14; 1985 c.800 §1; 1991 c.331 §114; 1997 c.631 §203; 2001 c.300 §81;2007 c.71 §228]

 

      709.040Securities eligible for deposit. The securities mentioned in ORS 709.030may only be of the following classes:

      (1)Interest-bearing bonds, notes or obligations of the United States includingthose of its agencies and instrumentalities, or bonds, notes or obligations forwhich the faith of the United States is pledged for the payment of theprincipal and interest.

      (2)Bonds or other obligations of the State of Oregon, any county of this state orany incorporated city, town or school or port district of this state having apopulation of not less than 2,000 as shown by the last federal census, or bondsof any other state, any county, incorporated city, town or school or portdistrict therein having a population of not less than 25,000, as shown by thelast federal census, if:

      (a)The bonds or obligations are issued in compliance with the constitution andlaws of the applicable state;

      (b)The bonds or obligations are a general obligation of the state, city, town orschool or port district issuing the bonds; and

      (c)There has been no default in payment of either principal or interest on any ofthe general obligations of the state, county, incorporated city, town or schoolor port district for a period of five years preceding the date of the deposit.

      (3)Notes or bonds secured by first liens upon improved real estate in this stateor any other state if the obligation, plus taxes not due and bondedindebtedness for public improvements not due, do not exceed 50 percent of thereasonable market value of the real estate. The trust company shall file insupport of a real estate obligation, such ap