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2016 Florida Statutes
(1) As used in the financial institutions codes, unless the context otherwise requires, the term:
(a) “Affiliate” means a holding company of a financial institution established pursuant to state or federal law, a subsidiary or service corporation of such holding company, or a subsidiary or service corporation of a financial institution.
(b) “Appropriate federal regulatory agency” means the federal regulatory agency that has statutory authority over a financial institution.
(c) “Bank holding company” means a business organization that is a bank holding company under the Bank Holding Company Act of 1956, as amended, 12 U.S.C. ss. 1841 et seq., or is otherwise determined or authorized by the office to be a holding company of a financial institution pursuant to ss. 658.27-658.285.
(d) “Capital accounts” means the aggregate value of unimpaired capital stock based on the par value of the shares, plus any unimpaired surplus and undivided profits or retained earnings of a financial institution. For the purposes of determining insolvency or imminent insolvency, the term does not include allowances for loan or lease loss reserves, intangible assets, subordinated debt, deferred tax assets, or similar assets.
(e) “Capital stock” means the shares of stock issued to create nonwithdrawable capital.
(f) “Commission” means the Financial Services Commission.
(g) “Executive officer” means an individual, whether or not the individual has an official title or receives a salary or other compensation, who participates or has authority to participate, other than in the capacity of a director, in the major policymaking functions of a financial institution. The term does not include an individual who may have an official title and may exercise discretion in the performance of duties and functions, including discretion in the making of loans, but who does not participate in the determination of major policies of the financial institution and whose decisions are limited by policy standards established by other officers, whether or not the policy standards have been adopted by the board of directors. The chair of the board of directors, the president, the chief executive officer, the chief financial officer, the senior loan officer, and every executive vice president of a financial institution, and the senior trust officer of a trust company, are presumed to be executive officers unless such officer is excluded, by resolution of the board of directors or by the bylaws of the financial institution, from participating, other than in the capacity of a director, in major policymaking functions of the financial institution and the individual holding such office so excluded does not actually participate therein.
(h) “Federal financial institution” means a federally or nationally chartered or organized financial institution.
(i) “Financial institution” means a state or federal savings or thrift association, bank, savings bank, trust company, international bank agency, international banking corporation, international branch, international representative office, international administrative office, international trust company representative office, credit union, or an agreement corporation operating pursuant to s. 25 of the Federal Reserve Act, 12 U.S.C. ss. 601 et seq. or Edge Act corporation organized pursuant to s. 25(a) of the Federal Reserve Act, 12 U.S.C. ss. 611 et seq.
(j) “Financial institution-affiliated party” means:
1. A director, officer, employee, or controlling stockholder, other than a financial institution holding company, of, or agent for, a financial institution, subsidiary, or service corporation;
2. Any other person who has filed or is required to file a change-of-control notice with the appropriate state or federal regulatory agency;
3. A stockholder, other than a financial institution holding company, a joint venture partner, or any other person as determined by the office who participates in the affairs of a financial institution, subsidiary, or service corporation; or
4. An independent contractor, including an attorney, appraiser, consultant, or accountant, who knowingly or recklessly participates in:
a. A violation of any law or regulation;
b. A breach of fiduciary duty; or
c. An unsafe and unsound practice,
which caused or is likely to cause more than a minimal financial loss to, or a significant adverse effect on, the financial institution, subsidiary, or service corporation.
(k) “Financial institutions codes” means:
1. Chapter 655, relating to financial institutions generally;
2. Chapter 657, relating to credit unions;
3. Chapter 658, relating to banks and trust companies;
4. Chapter 660, relating to trust business;
5. Chapter 662, relating to family trust companies;
6. Chapter 663, relating to international banking;
7. Chapter 665, relating to associations; and
8. Chapter 667, relating to savings banks.
(l) “Home state” means:
1. The state where a financial institution is chartered.
2. The state where the main office of a federal financial institution is located.
3. The state determined to be the home state of an international banking corporation pursuant to 12 U.S.C. s. 3103(c).
(m) “Home state regulator” means, with respect to an out-of-state state financial institution, the financial institution regulatory agency of the state in which the institution is chartered.
(n) “Host state” means a state, other than the home state, in which the financial institution seeks to establish or maintains a branch or nonbranch office.
(o) “Imminently insolvent” means a condition in which a financial institution has total capital accounts, or equity in the case of a credit union, of less than 2 percent of its total assets, after adjustment for apparent losses.
(p) “Insolvent” means a condition in which:
1. The capital accounts, or equity in the case of a credit union, and all assets of a financial institution are insufficient to meet liabilities;
2. The financial institution is unable to meet current obligations as they mature, even though assets may exceed liabilities; or
3. The capital accounts of a financial institution, or equity in the case of a credit union, are exhausted by losses and no immediate prospect of replacement exists.
(q) “Main office” or “principal office” of a financial institution means the main business office designated in its articles of incorporation or bylaws, or redesignated in a relocation application filed with the office, at an identified location approved by the office in the case of a state financial institution, or by the appropriate federal regulatory agency in the case of a federal financial institution. With respect to the trust department of a bank or association that has trust powers, the terms mean the office or place of business of the trust department at an identified location, which need not be the same location as the main office of the bank or association, approved by the office in the case of a state bank or association, or by the appropriate federal regulatory agency in the case of a national bank or federal association. The “main office” or “principal office” of a trust company means the office designated or provided for in its articles of incorporation at an identified location as approved by the relevant chartering authority.
(r) “Officer” of a financial institution means an individual elected or appointed to, or otherwise performing the duties and functions appropriate to, any position or office having the designation or title of chair of the board of directors, vice chair of the board of directors, chair of the executive committee, president, vice president, assistant vice president, cashier or assistant cashier, comptroller, assistant comptroller, trust officer, assistant trust officer, secretary or assistant secretary of a trust company, or any other office or officer designated in, or as provided by, the articles of incorporation or bylaws.
(s) “Out-of-state financial institution” means a financial institution whose home state is a state other than this state.
(t) “Related interest” means, with respect to a person:
1. The person’s spouse, child, or other dependent residing in the same household as the person;
2. A company, partnership, corporation, or other business organization controlled by the person. A person has control if the person:
a. Owns, controls, or has the power to vote 25 percent or more of any class of voting securities of the organization;
b. Controls in any manner the election of a majority of the directors of the organization; or
c. Has the power to exercise a controlling influence over the management or policies of the organization; or
3. An individual, company, partnership, corporation, or other business organization that engages in a common business enterprise with that person. A common business enterprise exists if:
a. The expected source for repayment of a loan or extension of credit is the same for each borrower and neither borrower has another source of income from which the loan, together with the borrower’s other obligations, may be fully repaid. An employer will not be treated as a source of repayment under this paragraph because of wages and salaries paid to an employee, unless the standards of sub-subparagraph b. are met;
b. Loans or extensions of credit are made:
(I) To borrowers who are directly or indirectly related through common control, including where one borrower is directly or indirectly controlled by another borrower; and
(II) Substantial financial interdependence exists between or among the borrowers. Substantial financial interdependence exists if 50 percent or more of one borrower’s gross receipts or gross expenditures on an annual basis are derived from transactions with the other borrower. Gross receipts and expenditures include gross revenues and expenses, intercompany loans, dividends, capital contributions, and similar receipts or payments;
c. Separate persons borrow from a financial institution to acquire a business enterprise such that those borrowers will own more than 50 percent of the voting securities or voting interests of the enterprise, in which case a common enterprise is deemed to exist between the borrowers for purposes of combining the acquisition loans; or
d. The office determines, based upon an evaluation of the facts and circumstances of particular transactions, that a common enterprise exists.
(u) “Service corporation” means a corporation that is organized to perform, for two or more financial institutions, services related or incidental to the business of a financial institution and that is wholly or partially owned or controlled by one or more financial institutions.
(v) “State,” when used in the context of a state other than this state, means any other state of the United States, the District of Columbia, and any territories of the United States.
(w) “State financial institution” means a state-chartered or state-organized financial institution.
(x) “Subsidiary” means an organization that is controlled by a financial institution or a holding company of a financial institution.
(y) “Unsafe or unsound practice” means any practice or conduct found by the office to be contrary to generally accepted standards applicable to a financial institution, or a violation of any prior agreement in writing or order of a state or federal regulatory agency, which practice, conduct, or violation creates the likelihood of loss, insolvency, or dissipation of assets or otherwise prejudices the interest of the financial institution or its depositors or members. In making this determination, the office must consider the size and condition of the financial institution, the gravity of the violation, and the prior conduct of the person or institution involved.
(z) “Office” means the Office of Financial Regulation.
(aa) “Debt cancellation products” means loan, lease, or retail installment contract terms, or modifications or addenda to such contracts, under which a creditor agrees to cancel or suspend all or part of a customer’s obligation to make payments upon the occurrence of specified events and includes, but is not limited to, debt cancellation contracts, debt suspension agreements, and guaranteed asset protection contracts offered by financial institutions, insured depository institutions as defined in 12 U.S.C. s. 1813(c), and subsidiaries of such institutions. The term does not include title insurance as defined in s. 624.608.
(2) Terms used but not defined in the financial institutions codes, but which are defined in Title XXXIX, entitled Commercial Relations, as enacted in chapters 668 through 1680, have the meanings ascribed to them in Title XXXIX.
History.—s. 1, ch. 80-273; s. 1, ch. 85-65; s. 1, ch. 91-307; ss. 1, 7, ch. 92-303; s. 1, ch. 93-111; s. 2, ch. 97-30; s. 519, ch. 97-102; s. 1700, ch. 2003-261; s. 5, ch. 2004-340; s. 88, ch. 2004-390; s. 1, ch. 2005-181; s. 7, ch. 2008-75; s. 1, ch. 2010-9; s. 1, ch. 2011-194; s. 1, ch. 2014-91; s. 1, ch. 2014-97; s. 1, ch. 2015-64.
1Note.—Title XXXIX comprises chapters 668-688.