BANKS AND INDUSTRIAL BANKS

Banking Code

Editor's note:

  1. Unless otherwise specified, articles 1 to 10 were numbered as articles 1 to 7 and 9 to 11 of chapter 14, C.R.S. 1963. For amendments to these articles prior to their repeal in 2003, consult the Colorado statutory research explanatory note and the table itemizing the replacement volumes and supplements to the original volume of C.R.S. 1973 beginning on page vii in the front of this volume.
  2. The provisions of articles 1 to 10 were relocated to articles 101 to 109 of this title. For the location of specific provisions, see the editor's note following each section in said articles 101 to 109.

ARTICLE 1 GENERAL PROVISIONS

11-1-101 to 11-1-106. (Repealed)

Source: L. 2003: Entire article repealed, p. 1051, § 1, effective July 1.

ARTICLE 2 DIVISION OF BANKING

11-2-101 to 11-2-122. (Repealed)

Source: L. 2003: Entire article repealed, p. 1051, § 1, effective July 1.

ARTICLE 3 ORGANIZATION AND CORPORATE FUNCTIONS

11-3-101 to 11-3-123. (Repealed)

Source: L. 2003: Entire article repealed, p. 1051, § 1, effective July 1.

ARTICLE 4 MERGER, CONSOLIDATION, CONVERSION, AND SALE OF ASSETS

11-4-101 to 11-4-110. (Repealed)

Source: L. 2003: Entire article repealed, p. 1051, § 1, effective July 1.

ARTICLE 5 LIQUIDATION - DISSOLUTION - REORGANIZATION

11-5-101 to 11-5-109. (Repealed)

Source: L. 2003: Entire article repealed, p. 1051, § 1, effective July 1.

ARTICLE 6 BANKING PRACTICES

11-6-101 to 11-6-113. (Repealed)

Source: L. 2003: Entire article repealed, p. 1051, § 1, effective July 1.

ARTICLE 6.3 HOLDING COMPANIES

11-6.3-101. (Repealed)

Source: L. 2003: Entire article repealed, p. 1051, § 1, effective July 1.

Editor's note: This article was added in 1985. For amendments to this article prior to its repeal in 2003, consult the Colorado statutory research explanatory note and the table itemizing the replacement volumes and supplements to the original volume of C.R.S. 1973 beginning on page vii in the front of this volume.

ARTICLE 6.4 ACQUISITION OF CONTROL OF BANKS AND BANK HOLDING COMPANIES

11-6.4-101 to 11-6.4-104. (Repealed)

Source: L. 2003: Entire article repealed, p. 1051, § 1, effective July 1.

Editor's note: This article was added in 1988. For amendments to this article prior to its repeal in 2003, consult the Colorado statutory research explanatory note and the table itemizing the replacement volumes and supplements to the original volume of C.R.S. 1973 beginning on page vii in the front of this volume.

ARTICLE 6.5 ELECTRONIC FUNDS TRANSFERS

Cross references: For electronic funds transfers for financial institutions other than banks, see article 48 of this title.

11-6.5-101 to 11-6.5-111. (Repealed)

Source: L. 2003: Entire article repealed, p. 1051, § 1, effective July 1.

Editor's note: This article was added in 1977. For amendments to this article prior to its repeal in 2003, consult the Colorado statutory research explanatory note and the table itemizing the replacement volumes and supplements to the original volume of C.R.S. 1973 beginning on page vii in the front of this volume.

ARTICLE 7 RESERVES - LOANS - INVESTMENTS

11-7-100.3 to 11-7-112. (Repealed)

Source: L. 2003: Entire article repealed, p. 1051, § 1, effective July 1.

ARTICLE 8 PROPERTY - SALES - BORROWING - SIGNATURE GUARANTY

11-8-101 to 11-8-106. (Repealed)

Source: L. 2003: Entire article repealed, p. 1051, § 1, effective July 1.

ARTICLE 9 SAFE DEPOSIT AND SAFEKEEPING FACILITIES

11-9-101 to 11-9-107. (Repealed)

Source: L. 2003: Entire article repealed, p. 1051, § 1, effective July 1.

ARTICLE 10 FIDUCIARY BUSINESS

11-10-101 to 11-10-107. (Repealed)

Source: L. 2003: Entire article repealed, p. 1051, § 1, effective July 1.

ARTICLE 10.5 PUBLIC DEPOSIT PROTECTION

Editor's note:

  1. This article was added in 1975. This article was repealed and reenacted in 1989, resulting in the addition, relocation, and elimination of sections as well as subject matter. For amendments to this article prior to 1989, consult the Colorado statutory research explanatory note and the table itemizing the replacement volumes and supplements to the original volume of C.R.S. 1973 beginning on page vii in the front of this volume. Former C.R.S. section numbers are shown in editor's notes following those sections that were relocated.
  2. Current provisions concerning the "Colorado Banking Code" are located in articles 101 to 109 of this title.

Section

11-10.5-101. Short title.

This article shall be known and may be cited as the "Public Deposit Protection Act".

Source: L. 89: Entire article R&RE, p. 593, § 1, effective September 1.

Editor's note: This section is similar to former § 11-10.5-101 as it existed prior to 1989.

11-10.5-102. Legislative declaration.

  1. The general assembly hereby declares that the purpose of this article is to serve the taxpayers and the citizens of Colorado by establishing standards and procedures to ensure the preservation and protection of all public funds held on deposit by a bank that are either not insured by or are in excess of the insured limits of federal deposit insurance, and to ensure the expedited repayment of such funds in the event of default and subsequent liquidation of a bank which holds such deposits.
  2. The general assembly further finds, determines, and declares that the protection of public funds on deposit in banks is a matter of statewide concern and importance and that as such:
    1. The provisions of this article shall prevail over any local government ordinance or resolution and over any home rule or territorial charter provision in conflict therewith; and
    2. The requirement that a national bank comply with the provisions of this article neither encroaches upon the prerogatives of a nationally chartered bank nor exceeds the authority of the state of Colorado.

Source: L. 89: Entire article R&RE, p. 593, § 1, effective September 1.

Editor's note: This section is similar to former § 11-10.5-102 as it existed prior to 1989.

11-10.5-103. Definitions.

As used in this article, unless the context otherwise requires:

  1. "Aggregate uninsured public deposits" means the total amount of cash, checks, or drafts on deposit at the close of a business day for credit to the official custodian accounts in an eligible public depository, and which are either not insured by or are in excess of the insurable limits of federal deposit insurance.
  2. "Bank" means any bank organized or chartered under this article and articles 101 to 109 of this title or any bank organized or chartered under chapter 2 of title 12 of the United States Code. For purposes of section 11-10.5-104 and 11-10.5-111 (1) only, the definition of "bank" also includes those banks chartered under the laws of other states.
  3. "Banking board" means the banking board established by section 11-102-103.
  4. "Defaulting depository" means any eligible public depository to which an event of default has occurred.
  5. "Eligible collateral" means, with respect to the securing of uninsured public funds, those instruments or obligations approved to be used for such purposes by the banking board pursuant to the provisions of section 11-10.5-107.
  6. "Eligible public depository" means any bank which has been designated as an eligible public depository by the banking board.
  7. "Event of default" means the issuance of an order by a supervisory authority or a receiver which restrains an eligible public depository from paying its deposit liabilities.
  8. "Federal deposit insurance" means deposit insurance or guarantees provided by the federal deposit insurance corporation or any successor agency thereto.
  9. "Official custodian" means:
    1. A designee with plenary authority, including control over public funds of a public unit which the official custodian is appointed to serve. For purposes of this paragraph (a), "control" includes possession of public funds, as well as the authority to establish accounts for such public funds in banks and to make deposits, withdrawals, or disbursements of such public funds. If the exercise of plenary authority over the public funds of a public unit requires action by or the consent of two or more putative official custodians, then such official custodians shall be treated as one official custodian with respect to such public funds.
    2. A designee, other than a designee described in paragraph (a) of this subsection (9), with authority, including control, over public funds of an entity, including the state of Colorado; any institution, agency, instrumentality, authority, county, municipality, city and county, school district, special district, or other political subdivision of the state of Colorado, including any institution of higher education; any institution, department, agency, instrumentality, or authority of any of the foregoing, including any county or municipal housing authority; any local government investment pool organized pursuant to part 7 of article 75 of title 24, C.R.S.; any public entity insurance pool organized pursuant to state statute; any public body corporate created or established under the constitution of the state of Colorado or any state statute; and any other entity, organization, or corporation formed by intergovernmental agreement or other contract between or among any of the foregoing. For purposes of this paragraph (b), "control" includes possession of public funds, as well as the authority to establish accounts for such public funds in banks and to make deposits, withdrawals, or disbursements of such public funds. If the exercise of authority over such public funds requires action by or the consent of two or more putative official custodians, then such official custodians shall be treated as one official custodian with respect to such public funds.
    1. "Political subdivision" includes any subdivision or any principal department of a public unit:
      1. The creation of which subdivision or principal department has been expressly authorized by state statute;
      2. To which some functions of government have been delegated by state statute; and
      3. To which funds have been allocated by ordinance or state statute for its exclusive use and control.
    2. "Political subdivision" also includes drainage, irrigation, navigation, improvement, levee, sanitary, school, and power districts and bridge and port authorities and any other special district created by state statute or compact between the state of Colorado and one or more states.
    3. "Political subdivision" does not include subordinate or nonautonomous divisions, agencies, or boards within principal departments of a public unit.
  10. "Public deposits" means all public funds on deposit in an eligible public depository in any form, whether time, savings, or demand.
  11. "Public funds" means all funds of a public unit and all funds of any entity referred to in paragraph (b) of subsection (9) of this section.
  12. "Public unit" means the state of Colorado, any county, city and county, city, or municipality, including any home rule city or town or territorial charter city, or any political subdivision thereof.

Source: L. 89: Entire article R&RE, p. 594, § 1, effective September 1. L. 91: (2) amended, p. 650, § 8, effective May 1. L. 2003: (3) amended, p. 1206, § 5, effective July 1. L. 2004: (2) amended, p. 324, § 9, effective April 7; (2) amended, p. 1190, § 17, effective August 4.

Editor's note:

  1. This section is similar to former § 11-10.5-103 as it existed prior to 1989.
  2. Subsection (2) was amended in House Bill 04-1110. Those amendments were superseded by the amendment of subsection (2) in Senate Bill 04-239.

11-10.5-104. Applicability of article.

The provisions of this article shall apply to all banks which elect to become eligible public depositories. No bank shall hold any public funds unless such bank has been designated as an eligible public depository pursuant to the provisions of this article.

Source: L. 89: Entire article R&RE, p. 595, § 1, effective September 1.

11-10.5-105. Authority of banking board.

The banking board shall have the authority to implement any provision of this article by order and by rule and regulation and may obtain restraining orders and injunctions to prevent violation of or to enforce compliance with the provisions of this article and the orders and rules and regulations issued under such provisions. The authority of the banking board shall be liberally construed to ensure that the purposes of this article are properly implemented.

Source: L. 89: Entire article R&RE, p. 595, § 1, effective September 1.

Editor's note: This section is similar to former § 11-10.5-104 as it existed prior to 1989.

11-10.5-106. Designation as eligible public depository - acceptance of provisions.

  1. No bank shall be a public depository or shall hold public funds without first being designated as an eligible public depository by the banking board pursuant to the provisions of this section.
  2. No bank shall be designated an eligible public depository unless the bank meets the following criteria:
    1. The deposits of such bank are insured or guaranteed by federal deposit insurance;
    2. The bank is in compliance with the capital standards established by the banking board; and
    3. The bank agrees in writing to abide by all regulatory directives, reporting requirements, examination requirements, and other criteria established for the administration and enforcement of the provisions and purposes of this article.
      1. Any bank which meets the criteria established in subsection (2) of this section and which desires to accept and hold public funds on and after September 1, 1989, shall file a written application with the banking board requesting designation as an eligible public depository. The request shall be signed by an executive officer of the bank and shall state that the bank agrees to abide by the provisions of this article and all rules and regulations promulgated by the banking board for the administration and enforcement of the provisions of this article. (3) (a) (I) Any bank which meets the criteria established in subsection (2) of this section and which desires to accept and hold public funds on and after September 1, 1989, shall file a written application with the banking board requesting designation as an eligible public depository. The request shall be signed by an executive officer of the bank and shall state that the bank agrees to abide by the provisions of this article and all rules and regulations promulgated by the banking board for the administration and enforcement of the provisions of this article.
      2. If the bank requesting such designation was an eligible public depository under applicable law in effect prior to September 1, 1989, and desires to continue to be an eligible public depository subject to the provisions of this article, it shall file the required written application within thirty days following August 1, 1989. If the banking board has no reason to believe that the bank would fail to meet the criteria or fail to follow the provisions of this article, it may designate such bank as an eligible public depository and issue an appropriate certificate evidencing such designation. Such immediate designation is provided for the convenience of the banking board in order to expedite transition from laws governing the protection of public funds in effect prior to September 1, 1989, and is not to be construed as granting a right or privilege to any bank to be designated as an eligible public depository.
      3. Any bank which was not an eligible public depository under applicable law in effect prior to September 1, 1989, or any bank which was granted a charter on or after said date, or any bank which has had its certificate as an eligible public depository withdrawn or revoked by either the banking board or the commissioner may at any time make written application to the banking board for designation as an eligible public depository. Such application shall be made on such forms or in such format as may be prescribed by the banking board. Upon submittal, the application shall contain all required information and shall be accompanied by a fee to be determined by the banking board. The banking board shall review the application and, not more than sixty days from the date that the application was submitted, shall either grant and issue or deny issuance of a certificate evidencing such designation. The banking board may extend the sixty-day review period for not more than thirty additional days.
      1. Designation as an eligible public depository shall not constitute either a right or a license, and such designation may be revoked, suspended, or placed under restrictions, limitations, or other conditions by the banking board if the board determines that the eligible public depository has failed to comply with the provisions of this article or any rule and regulation promulgated by the banking board for the administration or enforcement of this article or with the provisions of any order of the banking board.
      2. Once granted, designation as an eligible public depository may be retained by the bank to which it was granted unless the banking board acts to suspend, revoke, or otherwise limit the designation. Designation is unique to the bank to which it was granted and may not be sold or transferred to another bank. In the event that a bank designated as an eligible public depository is acquired or merged with another entity, the banking board shall review the continuation of such designation under either this paragraph (b) or paragraph (a) of this subsection (3).

Source: L. 89: Entire article R&RE, p. 595, § 1, effective September 1.

Editor's note: This section is similar to former § 11-10.5-105 as it existed prior to 1989.

11-10.5-107. Eligible collateral - uninsured public deposits.

  1. The banking board shall establish by rule and regulation a list of approved instruments and obligations to be used as eligible collateral by an eligible public depository in order to comply with the provisions of this section. As part of its findings, the banking board shall determine that each approved obligation or instrument meets at least the following criteria:
    1. The obligation or instrument is characterized by attributes of safety, liquidity, and soundness meeting the purposes of this article for the preservation and protection of public funds;
    2. The obligation or instrument, with respect to its market value, shall be marketable or convertible into cash within such time periods as shall be prescribed by the banking board to assure that any claim made pursuant to section 11-10.5-110 is fully and promptly paid;
    3. The standards and relevant factors required to establish and evaluate the current market value of the obligation or instrument are prescribed by the banking board at the time the obligation or instrument is approved for use as eligible collateral, which standards and relevant factors may include statistical standards for deviations from the original market value assigned at the time of approval for use that would result in an automatic deletion from the list of approved eligible collateral;
    4. The market value of each obligation or instrument is verified at least monthly, unless the banking board prescribes a different period for a particular obligation or instrument;
    5. The banking board has at its disposal adequate resources to monitor and evaluate the market value of the obligation or instrument; and
    6. The obligation or instrument satisfies such other criteria as the banking board may establish.
    1. Except as provided in subsection (4) of this section, the banking board shall not treat any eligible public depository differently than any other eligible public depository.
    2. In promulgating the list of eligible collateral pursuant to subsection (1) of this section, the banking board, within the bounds of safety and soundness, shall not establish market values or other evaluation criteria which are disproportionately more restrictive for banks than comparable market values or evaluation criteria for any other class of eligible public depositories operating under this article or any other state law. It is the intent of the general assembly that, to the extent practicable, competitive parity among eligible public depositories which existed under applicable law in effect prior to September 1, 1989, should be maintained.
  2. The banking board shall establish procedures to notify each eligible public depository in a timely manner of the obligations and instruments that have been approved for use as eligible collateral and of obligations and instruments that have been deleted from the list of approved eligible collateral. Any eligible public depository utilizing as collateral an obligation or instrument which has been deleted from the list of approved eligible collateral shall, within three business days of receiving notice of the deletion or within such longer period as prescribed by the banking board, remove it from its portfolio of collateral and substitute sufficient other obligations or instruments that are approved for use as eligible collateral to properly secure public funds as required by this article.
    1. The banking board shall by rule establish criteria and procedures for reducing or removing any uninsured public funds deposited in an eligible public depository if said depository fails to comply with the capital or safety and soundness standards established by the banking board.
    2. The banking board shall require an eligible public depository to increase, substitute, add to, or modify the amount or type of eligible collateral held to secure any uninsured public funds so that the collateral is adequate to fully protect the public funds if the capital or financial condition of the eligible public depository fails to comply with the capital or safety and soundness standards established by the banking board. The banking board shall establish such procedures as may be necessary to ensure that all collateral held pursuant to an action taken under this paragraph (b) is characterized by the highest degree of marketability and liquidity so that, in the event of default, all public deposits may be promptly and fully repaid.
  3. As an ongoing requirement of designation as an eligible public depository, any such depository shall pledge collateral having a market value in excess of one hundred two percent of the aggregate uninsured public deposits.
  4. An eligible public depository shall remove any obligation or instrument pledged as eligible collateral if the banking board determines that the obligation or instrument has failed in some manner to meet the criteria required by this section and shall substitute another obligation or instrument of eligible collateral that is satisfactory to the banking board.

Source: L. 89: Entire article R&RE, p. 597, § 1, effective September 1. L. 2009: (4) amended, (HB 09-1053), ch. 159, p. 687, § 2, effective August 5.

11-10.5-108. Collateral - where held - right of substitution - income derived.

    1. Eligible collateral shall be held as provided in this article or by rules and regulations of the banking board. Eligible collateral shall be held in the custody of any bank, including a federal reserve bank, or any depository trust company which has been approved by the banking board to hold eligible collateral and is supervised by the banking board, or an equivalent governmental agency responsible for the regulation of banks in the state in which such bank or depository trust company is located.
    2. An eligible public depository which has its own trust department may make application to the banking board to be allowed to segregate its required eligible collateral from the other assets of the eligible public depository and to hold such collateral in its own trust department under such conditions as the banking board shall prescribe by rule and regulation. The banking board may require an eligible public depository that is holding its own eligible collateral in its own trust department to cease doing so and to have the eligible collateral held by some other entity authorized to hold collateral by paragraph (a) of this subsection (1). Any eligible public depository which holds collateral for any other eligible public depository and which is granted permission by the banking board to hold its own collateral as well shall at all times keep the collateral held for each such eligible public depository segregated.
  1. Under circumstances where eligible collateral is maintained as required by this article, and where such eligible collateral is not held by the eligible public depository's own trust department, each eligible public depository shall provide in a written deposit or pledge agreement between the said eligible public depository and the custodian of the collateral, or in such other manner as shall be prescribed by the banking board by rule and regulation, that:
    1. In the event of default or insolvency of the eligible public depository for which the collateral is held, the custodian shall surrender such collateral to the banking board; and
    2. The custodian shall make available to the banking board the eligible collateral and any books, records, and papers pertaining thereto for any examination or other reason necessary for the administration of this article.
  2. An eligible public depository may at any time make substitutions of eligible collateral maintained or pledged for the purposes of this article pursuant to collateral substitution procedures established by the banking board and shall at all times be entitled to collect and retain all income derived from such collateral without restriction. The privilege granted under this subsection (3) may be suspended or revoked by the banking board if the eligible public depository has become the subject of increased regulatory oversight as a result of its failure to maintain capital standards required by the banking board for the holding of public funds.

Source: L. 89: Entire article R&RE, p. 598, § 1, effective September 1. L. 91: (1) and (3) amended, p. 650, § 9, effective May 1.

Editor's note: This section is similar to former § 11-10.5-109 as it existed prior to 1989.

11-10.5-109. Verification of collateral held - reports required.

  1. Each eligible public depository shall submit reports at least monthly to the banking board in such format as the banking board may prescribe. Such report shall demonstrate that the eligible public depository is in full compliance with the provisions of this article. In addition, each eligible public depository shall submit copies of its quarterly call reports to the banking board thirty days after the close of each fiscal quarter.
  2. The board of directors of an eligible public depository shall cause an annual audit to be completed at least annually, but at intervals of not more than fifteen months, by an independent accounting firm composed of certified public accountants or a director's examination by a public accountant or any other independent person or persons as determined by the banking board. The banking board shall adopt regulations regarding the qualifications of such public accountant and other independent person or persons who shall assume the responsibility for due care in such directors' examinations. The banking board's regulations shall also establish the scope of such directors' examinations which shall include safeguards to insure that such examinations adequately describe the financial condition of the financial institution. Such independent audit or directors' examination shall be completed and submitted to the banking board within the time lines the banking board requires. Such audits or directors' examinations shall include, but shall not be limited to, the following information:
    1. The official custodian on whose behalf any public funds are held;
    2. The name and address of each such official custodian;
    3. The amount of public funds on deposit for each such custodian;
    4. The amount of federal deposit insurance coverage for each such official custodian;
    5. The eligible collateral pledged for aggregate uninsured public deposits and the market value of such eligible collateral; and
    6. Any other information which may be required by the banking board by rule and regulation.
  3. The banking board may examine all public deposits held by and all eligible collateral required to be maintained by an eligible public depository, and all books, records, and papers pertaining thereto.
  4. Each eligible public depository shall be assessed reasonable expenses by the banking board to meet the costs of any examinations made in accordance with the provisions of this section.

Source: L. 89: Entire article R&RE, p. 599, § 1, effective September 1. L. 90: IP(2) amended, p. 667, § 35, effective June 7.

Editor's note: This section is similar to former §§ 11-10.5-109.5 and 11-50-111 as they existed prior to 1989.

11-10.5-110. Procedures when event of default occurs.

  1. When the banking board has determined that an eligible public depository has experienced an event of default, the banking board shall proceed in the following manner:
    1. The board shall seize and take possession of all eligible collateral belonging to or held on behalf of the defaulting depository from wherever such eligible collateral is held.
    2. The board shall ascertain the aggregate amounts of public funds held by the defaulting depository as disclosed by the records of such depository. The board shall determine for each official custodian for whom public funds are held by the defaulting depository the accounts and the amount of federal deposit insurance that is available for each account. It shall then determine for each such official custodian the amount of uninsured public funds and the eligible collateral that is pledged to secure such funds. Upon completion of this analysis, the board shall provide each such official custodian with a statement that reports the amount of public funds held by the defaulting depository in his behalf, the amount that may be protected by federal deposit insurance, and the amount that is safeguarded by eligible collateral as required by this article. Each such official custodian shall verify this information from his records within ten working days after receiving the report and information from the banking board.
    3. Upon receipt of a verified report from such official custodian and if the defaulting eligible public depository is to be liquidated or otherwise removed from status as an eligible public depository, the banking board shall proceed to liquidate all eligible collateral held for the safeguarding of public deposits and shall repay each official custodian for the uninsured public deposits held by the depository in his behalf.
  2. In the event that a federal deposit insurance agency is appointed and acts as liquidator or receiver of any eligible public depository under state or federal law, those duties under this article that are specified to be performed by the banking board in the event of default may be delegated to and performed by the said federal deposit insurance agency. Any liquidation occurring under the provisions of this section shall conform to the procedures established in section 11-103-804.

Source: L. 89: Entire article R&RE, p. 600, § 1, effective September 1. L. 2003: (2) amended, p. 1206, § 6, effective July 1.

Editor's note: This section is similar to former § 11-10.5-113 as it existed prior to 1989.

11-10.5-111. Public funds to be deposited only in eligible public depositories - responsibilities of official custodians and eligible public depositories - penalty.

  1. Any official custodian may deposit public funds in any bank which has been designated by the banking board as an eligible public depository. It is unlawful for an official custodian to deposit public funds in any bank other than one that has been so designated.
  2. Each official custodian shall inform an eligible public depository that the public funds on deposit are subject to the provisions of this article before entering into a depository agreement with the eligible public depository. It is the responsibility of the official custodian to maintain documents or other verification necessary to properly identify the public funds which are subject to the provisions of this article.
  3. The division, in consultation with the state treasurer and the state controller, shall establish the necessary controls to ensure the proper identification of public depository accounts.
    1. An official custodian who acted in good faith in selecting, designating, or approving any eligible public depository for the deposit of public funds shall not be liable for any loss of public funds deposited in an eligible public depository if such loss is caused by the occurrence of an event of default of such eligible public depository.
    2. Any official custodian who violates the provisions of this article is guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine of not less than two hundred dollars nor more than five hundred dollars, which fine shall be mandatory and may not be reimbursed nor paid by the public unit. Upon any such conviction, the court may adjudge that the official custodian be removed from public office.
    3. Any director, bank officer, or manager who knowingly violates the provisions of this article is guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine of not less than two hundred dollars nor more than two thousand dollars, which fine shall be mandatory.
  4. It is unlawful for any director, bank officer, or manager of any bank to accept or receive any public funds while such bank is insolvent or while under verbal or written order from the banking board not to accept or receive any public funds.
  5. Notwithstanding any other provision of this section to the contrary, nothing shall be construed to prevent a bank which is an eligible public depository operating pursuant to the provisions of this article from being or acting as an agent on behalf of any official custodian for the purposes of making investments as authorized by part 6 of article 75 of title 24, C.R.S. Any such bank shall maintain such accounting records as are necessary to readily distinguish between the activities authorized by said part 6 and the purposes of the public deposit protection requirements imposed upon it as a condition of being an eligible public depository. The banking board may promulgate such rules and regulations as it deems necessary to ensure that the activities authorized under part 6 of article 75 of title 24, C.R.S., and the protection of public funds pursuant to this article are not commingled.

Source: L. 89: Entire article R&RE, p. 601, § 1, effective September 1. L. 2001: (3) amended, p. 155, § 1, effective March 28.

Editor's note: This section is similar to former §§ 11-10.5-118, 11-10.5-119, and 11-10.5-121 as they existed prior to 1989.

11-10.5-112. Annual fees and assessments.

  1. There is hereby created in the state treasury the public deposit administration fund. The fund shall consist of moneys required to be credited to the fund pursuant to subsection (2) of this section and all interest earned on the investment of the moneys in the fund. Any such interest shall be credited at least annually to said fund. Moneys in the fund shall be subject to appropriation by the general assembly to the banking board to be used solely for the administration and enforcement of the provisions of this article. No moneys shall be appropriated from the general fund for payment of any expenses incurred under this section, and no such expenses shall be charged against the state.
  2. Every eligible public depository shall be assessed an annual fee in an amount established by the banking board for the costs of enforcement and administration of this article. Such fees shall fairly and equitably apply to all eligible public depositories calculated according to the proportion of aggregate public funds that each depository holds in relation to the total of all aggregate public deposits held by all eligible public depositories for each annual period for which they were eligible public depositories. The banking board shall transmit such fees to the state treasurer who shall credit the same to the public deposit administration fund.
  3. All fees assessed against an eligible public depository in accordance with the provisions of section 11-10.5-109 (4) shall be transmitted to the state treasurer who shall credit the same to the public deposit administration fund.
  4. In setting fees, the banking board shall apply the standards imposed on boards and commissions of the division of professions and occupations in the department of regulatory agencies for determining the amount of fees pursuant to the provisions of section 12-20-105.

Source: L. 89: Entire article R&RE, p. 602, § 1, effective September 1. L. 90: (2) amended, p. 667, § 36, effective June 7. L. 2019: (4) amended, (HB 19-1172), ch. 136, p. 1658, § 56, effective October 1.

Editor's note: This section is similar to former § 11-10.5-120 as it existed prior to 1989.

ARTICLE 11 CRIMINAL OFFENSES

11-11-101 to 11-11-110. (Repealed)

Source: L. 2003: Entire article repealed, p. 1051, § 1, effective July 1.

Editor's note:

  1. This article was numbered as article 12 of chapter 14, C.R.S. 1963. For amendments to this article prior to its repeal in 2003, consult the Colorado statutory research explanatory note and the table itemizing the replacement volumes and supplements to the original volume of C.R.S. 1973 beginning on page vii in the front of this volume.
  2. The provisions of this article were relocated to articles 101 to 109 of this title. For the location of specific provisions, see the editor's notes following each section in said articles.

General Financial Provisions

ARTICLE 20 STATE BANK COMMISSIONER - DUTIES - POWERS

11-20-101 to 11-20-118. (Repealed)

Source: L. 2003: Entire article repealed, p. 1051, § 1, effective July 1.

Editor's note:

  1. This article was numbered as article 13 of chapter 14, C.R.S. 1963. For amendments to this article prior to its repeal in 2003, consult the Colorado statutory research explanatory note and the table itemizing the replacement volumes and supplements to the original volume of C.R.S. 1973 beginning on page vii in the front of this volume.
  2. The provisions of this article were relocated to articles 101 to 109 of this title. For the location of specific provisions, see the editor's notes following each section in said articles.

ARTICLE 21 LIQUIDATION

11-21-101 to 11-21-123. (Repealed)

Source: L. 81: Entire article repealed, p. 611, § 36, effective July 1; entire article repealed, p. 2023, § 8, effective July 1.

Editor's note: This article was numbered as article 14 of chapter 14, C.R.S. 1963. For amendments to this article prior to its repeal in 1981, consult the Colorado statutory research explanatory note and the table itemizing the replacement volumes and supplements to the original volume of C.R.S. 1973 beginning on page vii in the front of this volume.

Cross references: For liquidation procedure under the "Colorado Banking Code", see article 103 of this title.

Industrial Banks

ARTICLE 22 INDUSTRIAL BANKS

11-22-101 to 11-22-706. (Repealed)

Source: L. 2003: Entire article repealed, p. 1051, § 1, effective July 1.

Editor's note:

  1. This article was numbered as article 17 of chapter 14, C.R.S. 1963. For amendments to this article prior to its repeal in 2003, consult the Colorado statutory research explanatory note and the table itemizing the replacement volumes and supplements to the original volume of C.R.S. 1973 beginning on page vii in the front of this volume.
  2. The provisions of this article were relocated to articles 101 to 109 of this title. For the location of specific provisions, see the editor's notes following each section in said articles.

Trust Companies and Trust Funds

ARTICLE 23 TRUST COMPANY ACT

11-23-101 to 11-23-125. (Repealed)

Source: L. 2003: Entire article repealed, p. 1051, § 1, effective July 1.

Editor's note:

  1. This article was numbered as article 20 of chapter 14, C.R.S. 1963. For amendments to this article prior to its repeal in 2003, consult the Colorado statutory research explanatory note and the table itemizing the replacement volumes and supplements to the original volume of C.R.S. 1973 beginning on page vii in the front of this volume.
  2. The provisions of this article were relocated to articles 101 to 109 of this title. For the location of specific provisions, see the editor's notes following each section in said articles.

ARTICLE 24 COMMON TRUST FUNDS

Cross references: For fiduciary powers of banks, see article 106 of this title.

Section

11-24-101. Short title.

This article shall be known and may be cited as the "Uniform Common Trust Fund Act".

Source: L. 47: p. 894, § 5. CSA: C. 18, § 177. CRS 53: § 14-10-5. C.R.S. 1963: § 14-18-5.

11-24-102. Common trust funds established and operated.

Any bank or trust company qualified to act as fiduciary in this state may establish and operate, alone or jointly with another bank or trust company qualified to act as fiduciary in this state, common trust funds for the purpose of furnishing investments to itself as fiduciary, to itself and others as cofiduciaries, to other banks or trust companies as fiduciaries, or to other banks or trust companies and others as cofiduciaries. Such fiduciary or cofiduciary may invest funds which it lawfully holds for investment in interests in such common trust funds, if such investment is not prohibited by the instrument, judgment, decree, or order creating such fiduciary relationship, and if, in the case of cofiduciaries, the bank or trust company procures the consent of its cofiduciaries to such investment. Any person acting as cofiduciary with any such bank or trust company is hereby authorized to consent to the investment in such interests. In determining whether the investment of funds received or held by a bank or trust company as fiduciary in a common trust fund is proper, the bank or trust company may consider the common fund as a whole and shall not be prohibited from making such investment because of any particular asset.

Source: L. 47: p. 893, § 1. CSA: C. 18, § 173. CRS 53: § 14-10-1. C.R.S. 1963: § 14-18-1. L. 77: Entire section amended, p. 563, § 1, effective June 9.

11-24-103. Exclusive management and control.

Any bank or trust company maintaining one or more common trust funds shall have the exclusive management and control of each common trust fund administered by it and the sole right at any time to sell, convert, exchange, transfer, or otherwise change or dispose of the assets comprising same. Notwithstanding any other provision of law, such bank or trust company may deposit investments of a common trust fund, which investments are securities, with a clearing corporation or with a federal reserve bank pursuant to part 5 of article 1 of title 15, C.R.S., for the account of the bank or trust company and such investments shall be deemed for the purposes of this article to be in the custody of such bank or trust company.

Source: L. 47: p. 893, § 4. CSA: C. 18, § 176. CRS 53: § 14-10-3. C.R.S. 1963: § 14-18-3. L. 77: Entire section amended, p. 563, § 2, effective June 9.

11-24-104. Court accountings.

Unless ordered by a court of competent jurisdiction, the bank or trust company operating such common trust funds is not required to render a court accounting with regard to such funds; but, by application to the district court, it may secure approval of such an accounting on such conditions as the court may establish.

Source: L. 47: p. 893, § 2. CSA: C. 18, § 174. CRS 53: § 14-10-2. C.R.S. 1963: § 14-18-2.

11-24-105. Uniformity of interpretation.

This article shall be so interpreted and construed as to effectuate its general purpose to make uniform the law of those states which enact it.

Source: L. 47: p. 893, § 3. CSA: C. 18, § 175. CRS 53: § 14-10-4. C.R.S. 1963: § 14-18-4.

11-24-106. Existing fiduciary relationships.

This article became effective January 1, 1948, and applies to fiduciary relationships then in existence or thereafter established.

Source: L. 47: p. 894, § 8. CSA: C. 18, § 178. CRS 53: § 14-10-6. C.R.S. 1963: § 14-18-6.

11-24-107. Fiduciary defined.

The word "fiduciary", whenever used in this article, means a bank or trust company undertaking to act alone or jointly with others primarily for the benefit of another or others in all matters connected with its undertaking and includes personal representatives [including executors, administrators, administrators with the will annexed (cum testamento annexo), administrators in succession acting under a will (de bonis non), ancillary administrators acting under a will, and ancillary executors], special administrators, guardians, conservators, trustees, whether of express or implied trusts, custodians under the "Colorado Uniform Transfers to Minors Act" (notwithstanding anything in said act which may be interpreted as contrary to this grant of authority), assignees, receivers, managing agents, as defined in this section, and any other person acting in a similar capacity. "Managing agent" means a fiduciary acting in the fiduciary relationship assumed upon the creation of a relationship which confers investment discretion on the fiduciary, but as to which the technical legal relationship is that of agent and principal.

Source: L. 77: Entire section added, p. 564, § 3, effective June 9. L. 84: Entire section amended, p. 393, § 3, effective July 1.

Cross references: For the "Colorado Uniform Transfers to Minors Act", see article 50 of this title.

BRANCH INSTITUTIONS

ARTICLE 25 FINANCIAL INSTITUTIONS - OPERATION OF BRANCHES - ORGANIZATIONAL AND OPERATIONAL EQUALITY

11-25-101 to 11-25-107. (Repealed)

Source: L. 2003: Entire article repealed, p. 1051, § 1, effective July 1.

Editor's note:

  1. This article was added in 1991. For amendments to this article prior to its repeal in 2003, consult the Colorado statutory research explanatory note and the table itemizing the replacement volumes and supplements to the original volume of C.R.S. 1973 beginning on page vii in the front of this volume.
  2. The provisions of this article were relocated to articles 101 to 109 of this title. For the location of specific provisions, see the editor's notes following each section in said articles.

CREDIT UNIONS

ARTICLE 30 CREDIT UNIONS - GENERAL PROVISIONS

Cross references: For the "Unclaimed Property Act", see article 13 of title 38.

Law reviews: For article, "Arbitrating Lender Liability Claims", see 18 Colo. Law. 879 (1989).

Section

11-30-101. Definitions - organization - charter - investigation.

    1. A credit union is a cooperative association, incorporated pursuant to this article for the twofold purpose of promoting thrift among its members and creating a source of credit for them at fair and reasonable rates of interest.
    2. As used in this article:
      1. "Board" means the financial services board, created in section 11-44-101.6.

        (I.1) "Commissioner" means the state commissioner of financial services.

      2. "Division" means the division of financial services created in section 11-44-101.
  1. A credit union may be organized in the following manner:
    1. Any eight or more residents of the state of Colorado who meet the membership requirements of section 11-30-103 (2) may execute, in a number of copies to be specified by the commissioner, articles of incorporation setting forth therein the terms by which they agree to be bound. The articles shall state the name and address of the proposed credit union; the names and addresses of the incorporators; the number of shares subscribed by each incorporator; and the term of existence of the corporation, which may be perpetual.
    2. The incorporators shall prepare, in a number of copies to be specified by the commissioner, proposed bylaws for the governing of the credit union, consistent with the provisions of this article, on standard forms approved by the commissioner and shall define therein the proposed eligibility requirements for membership.
    3. The proposed bylaws shall further set forth: The classes of shares which the credit union is authorized to issue; if such shares are to consist of one class only, the par value of each of the shares or a statement that all of the shares are without par value, or, if the shares are to be divided into classes, a statement of the par value of the shares of each such class or that the shares are to be without par value. In addition, if the shares are to be divided into classes, the bylaws shall designate each class and a statement of its preferences, its limitations, and its relative rights with respect to the shares of each other class.
    1. An application in such form as may be prescribed by the commissioner together with the articles of incorporation and the bylaws shall be filed with the commissioner, in a number of copies to be specified by the commissioner, upon the payment of a filing fee, as determined from time to time by the commissioner, to cover the reasonable and necessary expense to the division attributable to such application. Within thirty days after such filing and payment of such fee, the commissioner shall determine whether the same conform to the provisions of this article and whether such a credit union would benefit the members and proposed members thereof, consistent with the purposes of this article, the general character and fitness of the incorporators, and the economic advisability of establishing the proposed credit union. Except for a community charter application, which application shall be submitted to the board for hearing pursuant to section 11-30-101.7, the commissioner may approve or deny an application without notice and hearing.
    2. The commissioner shall make or cause to be made an investigation to determine whether the incorporators and organizers are qualified and whether their qualifications and financial experience are consistent with their responsibilities and duties. An investigation shall also be conducted to determine if an incorporator or organizer has been convicted of any criminal activity. The commissioner may establish by rule the content of such investigations and what, if any, investigations by other agencies or authorities may be treated as substantially equivalent to and accepted in lieu of an investigation by the commissioner.
  2. Upon approval of an application and documents by the commissioner, or by the board with respect to a community charter application, the commissioner shall issue a certificate of approval, in a number of copies equal to the number of copies of the articles of incorporation required to be filed pursuant to subsection (2)(a) of this section as specified by the commissioner, and attach a copy thereof to each copy of the said articles of incorporation. The incorporators shall then file approved articles with the secretary of state, and a copy of the articles, certified by the secretary of state, shall be filed with the commissioner. The incorporators shall pay to the secretary of state a fee for filing the articles of incorporation and a fee for certifying the copy of articles of incorporation furnished by the incorporators for filing with the commissioner, both fees to be determined and collected pursuant to section 24-21-104 (3), C.R.S.
  3. After the said certified copy of articles of incorporation have been filed with the commissioner, he shall issue a charter for such credit union, at which time the credit union shall become a body corporate having the powers enumerated in section 7-103-102, C.R.S., except as otherwise provided or limited in this article.
  4. The bylaws approved by the commissioner shall then be adopted by the initial board of directors of the credit union.

Source: L. 31: p. 295, § 1. CSA: C. 47, § 1. L. 41: p. 370, § 1. CRS 53: § 38-1-1. C.R.S. 1963: § 38-1-1. L. 67: p. 315, § 1. L. 73: p. 497, § 1. L. 79: (2)(a) amended, p. 414, § 1, effective May 22. L. 83: (2)(a) amended and (2)(c) added, p. 483, § 1, effective July1; (4) amended, p. 876, § 39, effective July 1. L. 89: (3) amended, p. 608, § 1, effective April 19. L. 90: (1) and (2)(b) amended, p. 1837, § 6, effective May 31. L. 93: (1)(b), (3), and (4) amended, p. 1442, § 1, effective June 6; (5) amended, p. 861, § 27, effective July 1, 1994. L. 94: (3) amended, p. 62, § 1, effective July 1. L. 96: (2)(a), (2)(b), (3)(a), and (4) amended, p. 184, § 1, effective April 8.

ANNOTATION

Law reviews. For note, "Colorado Interest Law", see 34 Dicta 398 (1957).

11-30-101.7. Hearing procedures for community field of membership credit unions.

  1. An application for a community field of membership shall be subject to approval by the board after the required notice and hearing requirements in this section are met.
  2. Upon submission by the commissioner, pursuant to section 11-30-101 (3), of a community field of membership application, the board shall hold a public hearing to consider the application. Such hearing shall be set by the board within six months after receipt of an application from a group that is subject to the requirements of this section; except that the board may postpone such hearing for valid reasons and good cause.
    1. The board shall give notice of a hearing on a community field of membership application at least thirty days before the hearing date, by registered or certified mail, to the principal office of each credit union, savings and loan association, or bank within the neighborhood, community, or rural district sought to be served by the proposed community credit union, and to such other persons or credit unions, savings and loan associations, or banks as the board may designate.
    2. Such notice must be in the form prescribed by the board and must include the names of the incorporators, the name and location of the proposed community credit union, the date, time, and place of the hearing, and a statement that the application and proposed or amended articles of incorporation and proposed bylaws are available for inspection in the office of the board. The board shall also cause such notice to be published at least once, not less than twenty days prior to the hearing date, in a newspaper of general circulation within the neighborhood, community, or rural district in which the proposed credit union is to be located.
    3. Notwithstanding any other provisions in this section to the contrary, if the board has given the required notice of a hearing and as of the tenth day prior to the hearing has received no written protest against such application, the board may grant such community field of membership without a hearing if the applicants are known to the board.
  3. On hearing, the board may admit into evidence the application and any other relevant information in the files of the division. The applicant and all others who receive notice by registered or certified mail pursuant to subsection (3) of this section shall be entitled to be heard and to introduce testimony at such hearing. The board may entertain such evidence or testimony from others as the board determines, in its sole discretion, to be necessary.
  4. Within ninety days following the conclusion of a hearing, the board shall issue a written order granting a community field of membership if the board finds:
    1. That the application, articles of incorporation, and bylaws conform to the provisions of this article and any rules promulgated by the board;
    2. That the credit union would benefit its members or proposed members, consistent with the purposes of this article, that the general character and fitness of the incorporators is appropriate, and that it is advisable from an economic standpoint to establish the proposed credit union;
    3. That the neighborhood, community, or rural district is politically, geographically, socially, or economically well-defined; and
    4. That the members of other credit unions within the neighborhood, community, or rural district are specifically excluded from membership, except as otherwise provided by the board for good cause.
  5. A credit union seeking to establish a community field of membership as part of a conversion from a federal to a state charter is subject to the notice and hearing requirements of this section.

Source: L. 93: Entire section added, p. 1443, § 2, effective June 6. L. 2004: (1), (2), (3), IP(5), and (6) amended, p. 129, § 1, effective July 1. L. 2013: (3) amended, (SB 13-154), ch. 282, p. 1471, § 28, effective July 1.

ANNOTATION

Expert testimony provided substantial evidence to support the board's finding that the south metro Denver area constituted a well-defined community for the purposes of subsection (5)(c). Colonial Bank v. Colo. Fin. Servs. Bd., 961 P.2d 579 (Colo. App. 1998).

11-30-102. Bylaws of credit unions.

The commissioner shall cause to be prepared a standard form of bylaws, consistent with this article, to be issued to all credit unions. All credit unions shall operate under the standard bylaws; except that each such credit union, subject to the approval of the commissioner, shall propose its own name, its field of membership, the number of members of its board of directors, its credit committee, its supervisory committee, provisions relative to times and places of meetings of the membership and of the board of directors, provisions relative to the conduct of elections and balloting of the credit union, and modifications of the standard bylaws deemed appropriate by the board of directors for the operation of the individual credit union. Any and all amendments to the bylaws shall be approved by the commissioner before they become operative.

Source: L. 31: p. 297, § 2. CSA: C. 47, § 2. L. 41: p. 371, § 2. CRS 53: § 38-1-2. C.R.S. 1963: § 38-1-2. L. 67: p. 316, § 2. L. 84: Entire section amended, p. 372, § 1, effective July 1.

11-30-103. Membership.

  1. Credit union membership shall consist of the incorporators and any other persons and organizations which are elected to membership and which pay any entrance fee. Organizations, incorporated or otherwise, composed for the most part of the same general group as the credit union membership may be members. A central credit union may be organized under this article and may have a membership made up principally of other credit unions organized pursuant to this article or any credit unions authorized to operate within the state of Colorado, and such membership may also include the officers and committee members of such credit unions, members or persons within the field of membership of credit unions within the state which have entered into or are about to enter into voluntary or involuntary liquidation proceedings, and small groups which the commissioner determines lack the potential membership to organize their own credit union if such groups have a common bond of employment or association.
  2. Credit union organization and membership, other than those of a central credit union, shall be limited to groups having a common bond of employment or association or groups which reside within a well-defined neighborhood, community, or rural district having a population of no more than twenty-five thousand or as otherwise authorized by the board. Small groups which the commissioner determines to lack the potential membership to organize their own credit union may be eligible for membership in an existing credit union if such small groups have a common bond of employment or association. A member of the immediate family of any person who, under the provisions of this article, is eligible for membership in a credit union may also be admitted to membership therein. "Immediate family" means persons related by blood, by marriage, or by adoption.
  3. A member who leaves the field of membership of the credit union may retain membership in the credit union as provided by the bylaws of the credit union.
  4. Except as to accounts, which are defined in and which shall be paid as provided for in article 15 of title 15, C.R.S., nothing in this article shall be construed to prohibit credit unions organized under this article from carrying membership accounts in the names of two or more persons in joint tenancy; and, if any credit union transacting business in this state issues shares and deposits in the names of two or more persons payable to them or to any of them, such shares and deposits, or any part thereof or any interest or dividend thereon, may be paid to any one of said persons whether the others are living or not, and the receipt or acquittance of the person so paid shall be a valid and sufficient discharge to the credit union from all of said persons and their heirs, executors, administrators, and assigns, and such shares and deposits shall be deemed to be owned by said persons in joint tenancy with the right of survivorship.

Source: L. 31: p. 298, § 5. CSA: C. 47, § 5. L. 41: p. 372, § 5. L. 45: p. 307, § 1. CRS 53: § 38-1-5. C.R.S. 1963: § 38-1-5. L. 67: p. 317, § 4. L. 73: p. 1646, § 4. L. 75: (3) R&RE, p. 393, § 1, effective July 1; (4) amended, p. 586, § 2, effective July 1. L. 77: (1) and (2) amended, p. 565, § 1, effective July 1. L. 83: (1) amended, p. 483, § 2, effective July 1. L. 84: (2) amended, p. 372, § 2, effective July 1. L. 90: (2) amended, p. 1837, § 7, effective May 31; (4) amended, p. 920, § 3, effective July 1. L. 93: (2) amended, p. 1444, § 3, effective June 6. L. 2002: (4) amended, p. 1359, § 6, effective July 1.

ANNOTATION

The general assembly's use of the phrase "or" in subsection (2) in the phrase "limited to groups having a common bond of employment ... or groups which reside within a well-defined community" is ambiguous with respect to whether a credit union must choose between an employment-based group or a community or whether the credit union can include both in a field of membership. Colonial Bank v. Colo. Fin. Servs. Bd., 961 P.2d 579 (Colo. App. 1998).

It is permissible to interpret this section in a manner that allows the approval of a credit union that combines both community and employment-based fields of membership. Colonial Bank v. Colo. Fin. Servs. Bd., 961 P.2d 579 (Colo. App. 1998).

Expert testimony provided substantial evidence to support the board's finding that the south metro Denver area constituted a well-defined community pursuant to subsection (2). Colonial Bank v. Colo. Fin. Servs. Bd., 961 P.2d 579 (Colo. App. 1998).

11-30-103.5. Branches. (Repealed)

Source: L. 93: Entire section added, p. 1445, § 4, effective June 6. L. 2013: Entire section repealed, (SB 13-159), ch. 193, p. 790, § 3, effective May 11.

11-30-104. Powers.

  1. A credit union has the following powers to:
    1. Receive the savings of its members either as payment on shares or as deposits, including the right to conduct Christmas clubs, vacation clubs, and other such thrift organizations or plans within the membership;
    2. Make loans to its members;
    3. Make loans to other credit unions as provided in this article;
    4. Deposit in state and national financial institutions insured by an agency of the federal government and to invest in the shares and deposits of the central credit union organized pursuant to this article;
    5. Invest in any of the following: Obligations of the United States or securities guaranteed or insured by any agency of the United States; obligations of any state or territory of the United States, or of any political subdivision or instrumentality thereof, except revenue obligations issued to provide, enlarge, or improve electric power, gas, water, or sewer facilities, or any combination thereof, issued by any city or town, or other similar municipal corporation having a population of less than five thousand persons, as determined by the latest federal decennial census; and, to an extent which shall not exceed ten percent of its shares, deposits, and undivided earnings, in shares of mutual funds or investment companies, stocks, bonds, or other securities of any corporation or religious or educational organizations, as may be approved as prudent and sound by the commissioner;
    6. Borrow money as provided in section 11-30-115;
    7. Apply for and hold membership in a central credit union organized pursuant to this article, in any other central credit union authorized to transact business in this state, and in any organization or association of credit unions;
    8. Acquire, through purchase or other lawful transactions, and to hold title to real and personal property necessary and incidental to the operation of the credit union, and to sell, mortgage, or otherwise dispose of the same;
    9. Exercise such incidental powers as shall be necessary to enable it to carry on effectively the business for which it is incorporated;
    10. Upon the written approval of the commissioner, engage in any activity in which such credit union could engage were it operating under a federal charter at the time, provided such activity is not prohibited by the laws of this state;
    11. Sell all or any portion of its assets and purchase all or any portion of the assets of another credit union and assume the liabilities of the selling credit union and its field of membership, subject to the approval of the commissioner;
    12. Allow shares and deposits to be paid for, transferred, and withdrawn for payment to the account holder or to third parties in such manner and with such procedures as may be established by the board of directors. This paragraph (l) shall apply only with respect to share draft accounts in which the entire beneficial interest is held by one or more individuals or members or by an organization which is operated primarily for religious, philanthropic, charitable, educational, or other similar purposes and which is not operated for profit.
    13. Make loans to, or permit the assumption of loans by, officers or employees of the division who are members of the credit union;
    14. Participate with other credit unions, credit union organizations, or financial organizations in making loans to credit union members when the borrower is a member of either the credit union originating the loan or the credit union purchasing a participation interest in the loan;
    15. Act as trustee or custodian of individual retirement accounts for the credit union's members authorized by federal or state law or as trustee or custodian of any plan established pursuant to the federal "Self-Employed Individuals Tax Retirement Act of 1962", as amended, or the federal "Employee Retirement Income Security Act of 1974", as amended, if a significant portion of the participants in any such plan are eligible for membership in the credit union and the funds held in the trustee or custodial capacity are invested in the credit union's shares or deposits;
    16. Act as fiscal agent for and receive payments on shares and deposits from nonmember units of the federal government or the state of Colorado or any agency or political subdivision thereof;
    17. Receive payment on deposits from nonmember financial institutions which are supervised under the laws of this state, the United States, or another state or territory of the United States.
  2. As authorized pursuant to section 10-2-601 (2), C.R.S., a credit union may, pursuant to federal law or under such rules as may be adopted by the financial services board or the commissioner of insurance pursuant to section 10-2-601, C.R.S., act as the agent, through the credit union or any credit union service organization, for any insurance company authorized to do business in this state by soliciting and selling insurance and collecting premiums on policies issued by such company. For such services, a credit union or credit union service organization may receive such fees or commissions as may be agreed between such entity and the insurance company.

Source: L. 31: p. 297, § 4. CSA: C. 47, § 4. L. 41: p. 372, § 4. CRS 53: § 38-1-4. C.R.S. 1963: § 38-1-4. L. 67: p. 316, § 3. L. 75: (1)(d) amended, p. 394, § 1, effective June 16; (1)(j) added, p. 374, § 3, effective June 26. L. 79: (1)(k) added, p. 415, § 1, effective July 1. L. 81: (1)(l) and (1)(m) added, p. 612, § 1, effective July 1. L. 83: (1)(k) amended and (1)(n) and (1)(o) added, p. 484, § 3, effective July 1. L. 84: (1)(d) and (1)(e) amended and (1)(p) and (1)(q) added, p. 373, § 3, effective July 1. L. 90: (1)(e), (1)(j), (1)(k), and (1)(m) amended, p. 1837, § 8, effective May 31. L. 96: (1)(q) amended, p. 185, § 2, effective April 8. L. 97: (2) added, p. 432, § 8, effective April 24. L. 2003: (1)(m) amended, p. 1207, § 7, effective July 1. L. 2004: (1)(m) and (1)(n) amended, p. 130, § 2, effective July 1.

Cross references: For the "Self-Employed Individuals Tax Retirement Act of 1962", see Pub.L. 87-792, 76 Stat. 809; for the "Employee Retirement Income Security Act of 1974", see Pub.L. 93-406, codified at 29 U.S.C. sec. 1001 et seq.

11-30-105. Exclusive right to use "credit union" in title.

A credit union organized in accordance with the provisions of this article, or in accordance with the laws of the United States or the laws of another state or territory of the United States, has the exclusive right to use the words "credit union" in its name or title; but an association composed of credit unions transacting business in this state may use the words "credit union" in its name or title. Any other person, association, corporation, or partnership using the words "credit union" in its name or title is guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine of not more than five hundred dollars, or by imprisonment in the county jail for not more than sixty days, or by both such fine and imprisonment.

Source: L. 31: p. 297, § 3. CSA: C. 47, § 3. L. 41: p. 371, § 3. CRS 53: § 38-1-3. C.R.S. 1963: § 38-1-3. L. 92: Entire section amended, p. 934, § 1, effective April 2.

11-30-106. Examinations - reports - powers of commissioner.

    1. Credit unions shall be under the supervision of the commissioner. Every credit union shall be examined by the commissioner at least once during any eighteen-month period. The commissioner shall assess each credit union an amount to cover the expenses of the division attributable to the supervision of state-chartered credit unions subject to the commissioner's jurisdiction. The amount assessed shall be determined according to a schedule or schedules or any other method established by the commissioner to be appropriate, but the assessment shall be at the same rate for all credit unions; except that the commissioner may establish a separate rate schedule for corporate and central credit unions. The commissioner may waive the payment of all or a portion of the assessment with respect to the year in which a charter is issued or cancelled or in which a final distribution is made in liquidation.
    2. The commissioner shall establish the division's annual assessment to be collected at least semiannually in such amounts as are sufficient to generate the moneys appropriated by the general assembly to the division for each fiscal year.
    3. Repealed.
  1. Annually, every credit union shall file a financial report with the commissioner on a date established by the commissioner, in a form prescribed by the commissioner. Said commissioner may require that additional reports be filed. For failure to file a report when due, unless excused for cause, a credit union shall pay to said commissioner a penalty, as prescribed by regulation, for each day of delinquency in filing.
  2. The board may issue rules and regulations necessary for the administration and enforcement of this article and shall reference the same to the sections of this article to which they apply. Such rules and regulations shall be promulgated pursuant to the provisions of article 4 of title 24, C.R.S., and a copy of such rules and regulations and of each order shall be mailed to each credit union in this state at least thirty days prior to the effective date thereof, except as to temporary or emergency rules.
  3. Except in cases where there is a statutory right to appeal to the board, any person aggrieved and directly affected by a final order of the commissioner may obtain judicial review thereof by filing an action for review with the Colorado court of appeals pursuant to section 24-4-106 (11), C.R.S., within thirty days after the date of issuance of such order.
  4. The commissioner has the power to charge off the whole or any part of any asset of any credit union which could not be lawfully acquired by it and to reduce the value of any asset of a credit union to its market value or to a reasonable value, if no market value can be established. If the losses of a credit union exceed its undivided earnings and reserve funds so that the reasonable value of its assets is less than the total amount due the shareholders, the commissioner may order a reduction in the liability to each shareholder, dividing the loss proportionately among all shareholders. Any reduction from each share account shall be a specified percentage sufficient to correct the impaired condition and preserve the solvency of the credit union. If thereafter the credit union shall realize from such assets a greater amount than that fixed by the order of reduction, such excess shall be divided proportionately among the shareholders to whom liability was previously reduced but only to the extent of such reduction.
  5. The commissioner has the power to issue subpoenas and require attendance of any and all officers, directors, agents, and employees of any credit union and such other witnesses as he may deem necessary in relation to its affairs, transactions, and conditions, and may require such witnesses to appear and answer such questions as may be put to them by the commissioner, and may require such witnesses to produce such books, papers, or documents in their possession as may be required by the commissioner. Upon application of the commissioner, any person served with a subpoena issued by him may be required, by order of the district court of the county where the credit union has its principal office, to appear and answer such questions as may be put to him by the commissioner and be required to produce such books, papers, or documents in his possession as may be required by the commissioner.
  6. The commissioner may issue cease-and-desist orders if the commissioner determines from competent and substantial evidence that a credit union is engaged or has engaged, or when the commissioner has reasonable cause to believe the credit union is about to engage, in an unsafe or unsound practice or is violating or has violated, or when the commissioner has reasonable cause to believe the credit union is about to violate, a material provision of any law or regulation or any condition imposed in writing by the commissioner or any written agreement made with the commissioner. Any person aggrieved by a final order of the commissioner issued pursuant to this section may appeal such order to the financial services board pursuant to section 11-44-101.8.
      1. The commissioner may suspend or remove any director, officer, or employee of a credit union when the commissioner determines such person has: (8) (a) (I) The commissioner may suspend or remove any director, officer, or employee of a credit union when the commissioner determines such person has:
        1. Violated the provisions of this article or a lawful regulation or order issued thereunder;
        2. Engaged or participated in any unsafe or unsound practice in the conduct of credit union business;
        3. Committed or engaged in any act, omission, or practice which constitutes a breach of fiduciary duty to the credit union, and the credit union has suffered or will probably suffer financial loss or other damage, or the interests of members or account holders may be seriously prejudiced thereby; or
        4. Received financial gain by reason of a violation, practice, or breach of fiduciary duty that involved personal dishonesty or demonstrated a willful or continuing disregard for the safety or soundness of the credit union.
      2. The commissioner may suspend or remove any director, officer, or employee of a credit union who, under the laws of this state, the United States, or any other state or territory of the United States:
        1. Has entered a plea of guilty or nolo contendere to or been convicted of a crime involving theft or fraud that is classified as a felony; or
        2. Is subject to an order removing or suspending such individual from office, or prohibiting such individual's participation in the conduct of the affairs of any credit union, savings and loan association, bank, or other financial institution.
      1. A suspension or removal order shall specify the grounds for the suspension or removal. A copy of the order shall be sent to the credit union concerned and to each member of its board of directors. The commissioner shall send written notice by certified mail, return receipt requested, to any person affected by paragraph (a) of this subsection (8), at least ten days prior to a hearing held pursuant to section 24-4-105, C.R.S., at which the commissioner shall preside.
      2. If the commissioner determines that extraordinary circumstances require immediate action, a person may be suspended or removed under paragraph (a) of this subsection (8) without notice or a hearing, but the commissioner shall conduct a hearing under section 24-4-105, C.R.S., within thirty days after such suspension or removal.
      3. In extraordinary circumstances, upon order of the commissioner, any hearing conducted pursuant to this section shall be exempt from any provision of law requiring that proceedings of the commissioner be conducted publicly. Such extraordinary circumstances occur when specific concern arises about prompt withdrawal of moneys from the institution.
      4. Any person who performs any duty or exercises any power of a credit union after receipt of a suspension or removal order under paragraph (a) of this subsection (8) commits a class 1 misdemeanor and shall be punished as provided in section 18-1.3-501, C.R.S.

Source: L. 31: p. 298, § 6. CSA: C. 47, § 6. L. 41: p. 373, § 6. L. 51: p. 314, § 1. CRS 53: § 38-1-6. L. 56: p. 132, § 1. L. 62: p. 142, § 1. C.R.S. 1963: § 38-1-6. L. 67: p. 317, § 5. L. 75: (1) amended, p. 380, § 4, effective July 1. L. 81: (1) amended, p. 615, § 1, effective July 1. L. 83: (2) amended, p. 484, § 4, effective July 1. L. 89: (1) and (2) amended and (6) to (8) added, p. 608, § 2, effective April 19. L. 92: (1) amended, p. 928, § 5, effective February 25. L. 93: (3) and (7) amended, p. 1445, § 5, effective June 6. L. 94: (1)(b), (2), (4), and (8) amended, p. 63, § 2, effective July 1. L. 95: (1)(a) amended, p. 85, § 1, effective March 23. L. 96: (1)(c) repealed, p. 185, § 3, effective April 8. L. 2000: (2) amended, p. 155, § 1, effective August 2. L. 2002: (8)(b)(IV) amended, p. 1470, § 35, effective October 1. L. 2004: IP(8)(a)(I) amended, p. 130, § 3, effective July 1.

Cross references: For the legislative declaration contained in the 2002 act amending subsection (8)(b)(IV), see section 1 of chapter 318, Session Laws of Colorado 2002.

ANNOTATION

Law reviews. For note, "Colorado Interest Law", see 34 Dicta 398 (1957).

11-30-106.5. Assessment of civil money penalties.

    1. After notice and a hearing as provided in article 4 of title 24, C.R.S., and after making a determination that no other appropriate governmental agency has taken similar action against such person for the same act or practice, the commissioner may assess and collect a civil money penalty from any person who has violated any final cease-and-desist order issued by the commissioner pursuant to section 11-30-106 (7) or any suspension order issued pursuant to section 11-30-120.
    2. For the purposes of this section, a violation includes, but is not limited to, any action, by any person alone or with another person, which causes, brings about, or results in the participation in, counseling of, or aiding or abetting of a violation.
    3. In extraordinary circumstances, upon order of the commissioner, any hearing conducted pursuant to this section shall be exempt from any provision of law requiring that proceedings of the commissioner be conducted publicly. Such extraordinary circumstances occur when specific concern arises about prompt withdrawal of moneys from the institution.
  1. Civil money penalties shall be assessed by written notice of assessment of a civil money penalty served upon the person to be assessed. The notice of assessment of a civil money penalty shall state the amount of the penalty, the period for payment, the legal authority for the assessment, and the matters of fact or law constituting the grounds for assessment. The notice of assessment of a civil money penalty may be appealed to the financial services board pursuant to section 11-44-101.8. On appeal, the board may consider, among other matters, whether the civil money penalty assessed by the commissioner is appropriate considering the financial resources of the person assessed.
  2. In determining the amount of the civil money penalty to be assessed, the commissioner shall consider the good faith of the person assessed, the gravity of the violation, any previous violations by the person assessed, and such other matters as the commissioner may deem appropriate; except that the civil money penalty shall be not more than one thousand dollars per day for each day the person assessed is determined by the commissioner to be in violation of a cease-and-desist order or an order of suspension or removal. Alternatively, the commissioner may assess a civil money penalty for such violation in a lump-sum amount not to exceed fifty thousand dollars.
  3. Civil money penalties assessed pursuant to this section shall be due and payable and collected within thirty days after the notice of assessment of a civil money penalty is issued by the commissioner; except that the commissioner may, in the commissioner's discretion, compromise, modify, or set aside any civil money penalty. If any person fails to pay an assessment after it has become due and payable, the commissioner may refer the matter to the attorney general, who shall recover the amount assessed by action in the district court for the city and county of Denver. Any civil money penalty collected pursuant to this section shall be transmitted to the state treasurer, who shall credit it to the general fund.

Source: L. 89: Entire section added, p. 610, § 3, effective April 19. L. 93: (2) amended, p. 1445, § 6, effective June 6. L. 94: (3) amended, p. 64, § 3, effective July 1. L. 99: Entire section amended, p. 1008, § 1, effective August 4.

11-30-107. Fiscal year - meetings.

The fiscal year of all credit unions shall end December 31 of each year. The annual meeting shall be held within five months after the close of said fiscal year. Special meetings may be held in the manner indicated in the bylaws. At all meetings a member shall have but a single vote, whatever his share holdings. There shall be no voting by proxy, but a member other than a natural person may cast a single vote through a delegated agent.

Source: L. 31: p. 299, § 7. CSA: C. 47, § 7. L. 41: p. 374, § 7. CRS 53: § 38-1-7. C.R.S. 1963: § 38-1-7. L. 67: p. 318, § 6. L. 79: Entire section amended, p. 416, § 1, effective July 1.

11-30-108. Elections.

  1. At the annual meeting, or by other proper balloting within thirty days before and twenty days after the annual meeting, the credit union members shall elect from the membership a board of directors of not less than five members. A supervisory committee of not less than three members and a credit committee of not less than three members or a credit officer shall be elected by the credit union members or appointed by the board of directors as provided in the bylaws of the credit union. All such persons shall hold office for such terms respectively as the bylaws provide and until successors are elected or appointed and qualify. In addition, one or more alternate members of the credit committee may be elected by the credit union members or appointed by the board of directors to serve in the absence of members of the credit committee. No member shall hold more than one elected office simultaneously. A record of the names and addresses of the members of the board and such committees, such alternates, and the officers shall be filed with the commissioner within twenty days after their election or appointment.
  2. Notwithstanding subsection (1) of this section, the board of directors may, as provided in the bylaws, appoint an audit committee in lieu of a supervisory committee to carry out the duties and responsibilities of the supervisory committee as contained in section 11-30-111. A record of the names and addresses of the members of the audit committee must be filed with the commissioner within twenty days after their election or appointment.

Source: L. 31: p. 300, § 8. CSA: C. 47, § 8. L. 41: p. 374, § 8. L. 47: p. 379, § 1. CRS 53: § 38-1-8. C.R.S. 1963: § 38-1-8. L. 67: p. 318, § 7. L. 77: Entire section amended, p. 567, § 1, effective July 1. L. 84: Entire section amended, p. 373, § 4, effective July 1. L. 2004: Entire section amended, p. 131, § 5, effective July 1. L. 2016: Entire section amended, (SB 16-125), ch. 99, p. 286, § 1, effective August 10.

11-30-109. Directors and officers - compensation.

  1. At its first meeting after the annual election, the board of directors shall elect from its own number an executive officer, who may be designated as chair of the board or president; a vice-chair of the board or one or more vice-presidents; a treasurer; and a secretary. The offices of secretary and treasurer may be combined into one office known as secretary-treasurer. The persons so elected shall be the executive officers of the corporation. The board of directors shall be responsible for the general management of the affairs of the credit union, and more specifically to:
    1. Act on applications for membership, or to appoint from among the membership of the credit union, one or more membership officers who may act on applications for membership;
    2. Set policies, terms, and conditions under which loans will be available to members, determine interest rates on loans and on deposits, determine whether an interest refund shall be made to members, and declare the rates of any such interest refund and the classes of loans to which such refund shall apply. Any such refund shall be paid from interest income of the credit union and shall be paid only to members who paid interest to the credit union during the period and who were members of record of the credit union at the close of such period, but no refund shall be paid to a member whose loan is delinquent more than the period of time specified by the board of directors.
    3. Fix the amount of the blanket surety bond which shall cover all elected and appointed officials and all employees of the credit union. Such blanket surety bond shall be in an amount equal to the assets of the credit union as of December 31 of the previous year or one million dollars, whichever is less, or in such other amount as may be prescribed by the commissioner.
    4. Declare dividends and, subject to approval by the commissioner, adopt amendments to the bylaws of the credit union;
    5. Determine when any vacancy exists in the board of directors or in the credit committee, and to fill vacancies in the board and in the credit committee until successors are elected or appointed and qualify, and to appoint one or more assistant secretaries or treasurers or both, as needed; and the board may employ an officer in charge of operations whose title shall be either president or general manager, or, in lieu thereof, the board of directors may designate the treasurer or an assistant treasurer to act as general manager and be in active charge of the affairs of the credit union;
    6. Determine the maximum individual share holdings in the credit union and the maximum amount of individual loans which can be made either with or without security;
    7. Have charge of and supervise investments of credit union funds;
    8. Maintain records pursuant to rules promulgated by the financial services board concerning how long records should be retained and in what manner;
    9. Provide for compensation of necessary clerical and auditing assistance requested by the supervisory committee and of loan officers appointed by the credit committee, and to establish any salary which shall be paid to the treasurer or general manager.
  2. The duties of the officers shall be as determined in the bylaws; except that the treasurer shall be the general manager if none has been employed pursuant to paragraph (e) of subsection (1) of this section.
  3. A credit union may reasonably compensate a director for his or her services to the credit union. Providing reasonable life, health, accident, and similar insurance protection is not considered compensation. Directors, officers, and committee members may be reimbursed for necessary expenses incidental to the performance of the official business of the credit union.

Source: L. 31: p. 300, § 9. CSA: C. 47, § 9. L. 41: p. 374, § 9. L. 51: p. 315, § 2. CRS 53: § 38-1-9. C.R.S. 1963: § 38-1-9. L. 67: p. 318, § 8. L. 77: IP(1) and (1)(e) amended, p. 567, § 2, effective July 1. L. 81: (1)(b) amended, p. 612, § 2, effective July 1. L. 83: (1)(b) amended, p. 484, § 5, effective July 1. L. 84: IP(1), (1)(b), (1)(c), (1)(g), and (2) amended and (3) added, p. 374, § 5, effective July 1. L. 90: (1)(c) amended, p. 1838, § 9, effective May 31. L. 94: IP(1) and (1)(b) amended, p. 65, § 4, effective July 1. L. 2004: (1)(h) amended, p. 130, § 4, effective July 1. L. 2016: (3) amended, (SB 16-125), ch. 99, p. 287, § 2, effective August 10.

11-30-110. Credit committee - credit officer.

The credit committee or credit officer shall have the general supervision of all loans to members. Applications for loans shall be on a form approved by the credit committee or the credit officer. At least a majority of the members of the credit committee or the credit officer shall pass and approve or disapprove all loans; except that the credit committee or the credit officer may appoint one or more loan officers and delegate to the same the power to approve or disapprove loans which are within limits prescribed by the credit committee or the credit officer. Each loan officer shall furnish to the credit committee or the credit officer a record of each loan application received by him within seven days after the date of filing of the application. All loans not approved by a loan officer may be considered by the credit committee or the credit officer. No member of the credit committee shall receive any compensation as a loan officer or be employed by the credit union in any other capacity. A credit officer may receive compensation in connection with the performance of his duties. The credit committee shall meet as often as may be necessary after due notice to each member. Vacancies in the credit committee shall be filled pursuant to section 11-30-109 (1)(e).

Source: L. 31: p. 301, § 10. CSA: C. 47, § 10. L. 41: p. 375, § 10. CRS 53: § 38-1-10. C.R.S. 1963: § 38-1-10. L. 67: p. 319, § 9. L. 75: Entire section amended, p. 394, § 2, effective June 16. L. 79: Entire section amended, p. 416, § 2, effective July 1.

11-30-111. Supervisory committee.

  1. The supervisory committee shall:
    1. Make, or cause to be made, a comprehensive annual audit of the books and affairs of the credit union and shall submit a report of the annual audit to the board of directors and a summary of that report to the members at the next annual meeting. The committee shall make or cause to be made such supplementary audits or examinations as it deems necessary.
    2. Make an annual report and submit the same at the annual meeting of the members;
    3. By unanimous vote of the committee if it deems such action to be necessary for the proper conduct of the credit union, suspend any officer or director of the credit union, or any member of the credit committee, and shall call a special meeting of the members of the credit union not less than seven nor more than fourteen days thereafter to act on such suspension. The members at said meeting may sustain any such suspension and remove any such officer, director, or member of the credit committee permanently and elect a successor thereto for the unexpired term of office or may reinstate any such person.
    4. Biennially verify, or cause to be verified, by a random sampling or by verification of all members' accounts, the members' share, deposit, and loan accounts. Such verification may be obtained by either sending or causing to be sent a statement of account to each member or by such means as may be specified by the commissioner.
  2. By majority vote, the supervisory committee may call a special meeting of the members of the credit union to consider any violation of any provision of this article, the bylaws, or any rule or requirement of the credit union, by any officer, director, member of any committee, or any member, which the committee deems to be detrimental to the credit union. The supervisory committee shall fill vacancies in its own membership until the next annual election of the credit union.

Source: L. 31: p. 301, § 11. CSA: C. 47, § 11. L. 41: p. 375, § 11. L. 51: p. 315, § 3. CRS 53: § 38-1-11. C.R.S. 1963: § 38-1-11. L. 67: p. 319, § 10. L. 75: (1)(a) amended, p. 396, § 1, effective June 16. L. 84: (1)(a) amended, p. 375, § 6, effective July 1. L. 95: (1)(d) amended, p. 85, § 2, effective March 23. L. 2013: (1)(d) amended, (SB 13-159), ch. 193, p. 791, § 4, effective May 11.

11-30-112. Capital.

The capital of a credit union shall consist of the payments that have been made to it in shares by the several members thereof. The credit union has a lien on the shares and deposits of a member for any sum due to the credit union from said member or for any loan endorsed by him. A credit union may charge an entrance fee and an annual membership fee, but such fees shall be uniform to all members.

Source: L. 31: p. 302, § 12. CSA: C. 47, § 12. L. 41: p. 376, § 12. CRS 53: § 38-1-12. C.R.S. 1963: § 38-1-12. L. 79: Entire section amended, p. 417, § 3, effective July 1. L. 83: Entire section amended, p. 485, § 6, effective July 1.

ANNOTATION

Law reviews. For note, "Colorado Interest Law", see 34 Dicta 398 (1957).

11-30-113. Minors.

Shares may be issued and deposits received in the name of a minor. A member who is a minor shall be entitled to withdraw or pledge any shares owned by him and to receive from the credit union any and all dividends, or other moneys, at any time the same become due, in the same manner and subject to the same conditions as an adult, and any receipt or acquittance signed by such a minor shall constitute a valid release and discharge to the credit union for the payment of such moneys. The board of directors of the credit union may provide in the bylaws of the credit union a minimum age of any minor to be eligible for membership in the credit union and to vote at any meeting of the members.

Source: L. 31: p. 302, § 13. CSA: C. 47, § 13. L. 41: p. 376, § 13. CRS 53: § 38-1-13. C.R.S. 1963: § 38-1-13. L. 67: p. 320, § 11.

11-30-114. Rates. (Repealed)

Source: L. 31: p. 302, § 14. CSA: C. 47, § 14. L. 41: p. 376, § 14. L. 51: p. 315, § 4. CRS 53: § 38-1-14. C.R.S. 1963: § 38-1-14. L. 80: Entire section amended, p. 469, § 1, effective March 10. L. 85: Entire section repealed, p. 398, § 1, effective March 1.

11-30-115. Power to borrow and loan money.

A credit union may borrow from any source a total sum which shall not exceed fifty percent of its shares, deposits, and undivided earnings. No credit union shall loan more than ten percent of its assets to any member or to another credit union.

Source: L. 31: p. 303, § 15. CSA: C. 47, § 15. L. 41: p. 376, § 15. L. 53: p. 239, § 1. CRS 53: § 38-1-15. C.R.S. 1963: § 38-1-15. L. 67: p. 320, § 12. L. 84: Entire section amended, p. 375, § 7, effective July 1.

11-30-116. Loans.

A credit union may make loans to members subject to the provisions of this article and the bylaws of the credit union. A borrower may repay a loan in whole or in part any day the office of the credit union is open for business. A credit union may make loans to its own directors, credit officers, or members of its own supervisory committee or credit committee, but no such loan or aggregate of loans to any one director, credit officer, or committee member that exceeds twenty thousand dollars plus pledged shares may be made unless approved by the board of directors.

Source: L. 31: p. 303, § 16. CSA: C. 47, § 16. L. 41: p. 376, § 16. L. 51: p. 315, § 5. L. 53: p. 239, § 2. CRS 53: § 38-1-16. C.R.S. 1963: § 38-1-16. L. 67: p. 320, § 13. L. 83: Entire section amended, p. 485, § 7, effective July 1. L. 84: Entire section amended, p. 375, § 8, effective July 1. L. 87: Entire section amended, p. 464, § 1, effective May 8. L. 2004: Entire section amended, p. 131, § 6, effective July 1.

11-30-117. Reserves.

  1. (Deleted by amendment, L. 2004, p. 131 , § 7, effective July 1, 2004.)
  2. The board may require reserves to protect the interest of members by general rules, including reserve requirements for any privately insured credit union. In addition, the commissioner may require special reserves by an order directed to an individual credit union in any special case.

Source: L. 31: p. 303, § 17. CSA: C. 47, § 17. L. 41: p. 377, § 17. L. 45: p. 308, § 2. CRS 53: § 38-1-17. C.R.S. 1963: § 38-1-17. L. 67: p. 321, § 14. L. 79: Entire section R&RE, p. 417, § 4, effective July 1. L. 90: (2) amended, p. 1838, § 10, effective May 31. L. 2004: Entire section amended, p. 131, § 7, effective July 1.

11-30-117.5. Share insurance required - confidentiality.

  1. Each credit union shall apply for insurance on its shares and deposits as provided by the national credit union administration board under section 201 of the "Federal Credit Union Act", 12 U.S.C. sec. 1781, or comparable insurance approved by the commissioner. Credit unions with debt and equity capital consisting primarily of funds from other credit unions shall not be subject to the requirements of this section.
  2. Any credit union which is denied a commitment for such insurance shall, within thirty days of such denial, commence steps to liquidate or merge with an insured credit union or shall apply in writing to the commissioner for an extension of time to obtain an insurance commitment. The commissioner shall grant one or more extensions of time to obtain the insurance commitment upon satisfactory evidence that the credit union has made or is making a substantial effort to satisfy the conditions precedent to the issuance of an insurance commitment.
  3. No credit union shall be granted a charter by the commissioner unless such credit union has applied for insurance on its shares and deposits as provided in this section.
  4. Neither the commissioner, the commissioner's deputy, nor any other person appointed by the commissioner shall divulge any information acquired in the discharge of the person's duties; except that:
    1. A person specified in the introductory portion to this subsection (4) may divulge information acquired in the discharge of the person's duties if doing so is made necessary by law or under order of court in an action involving the division or in criminal actions;
    2. Any party entitled to appear in a hearing on an application for a community credit union charter shall have access to the applicant's proposed articles or amended articles of incorporation, application for charter, and proposed bylaws;
    3. The commissioner may furnish information as to the condition of a credit union to the national credit union administration board or its successors, a qualified insuring organization, a liquidating agent appointed by the commissioner, a federal home loan bank, a federal reserve bank, the division of banking, the executive director of the department of regulatory agencies, or a department or division of any other state having supervisory authority over credit unions and may accept any report of examination made on behalf of such board, organization, liquidating agent, bank, department, or division;
    4. The commissioner may give records or information in the commissioner's possession to a licensing agency within the department of regulatory agencies relating to possible misconduct by a person or entity licensed by said agency;
    5. The board, the commissioner, and their respective designees may exchange information obtained by the division as to possible criminal violations of any law relating to the activities of a credit union with the appropriate law enforcement agencies; and
    6. Notwithstanding any provision of this article to the contrary, the commissioner may disclose any information in the records of the division or acquired by the commissioner in the discharge of the commissioner's duties that is available from the national credit union administration board or its successors, or the disclosure of which has been specifically authorized by the board of directors of the credit union to which such information relates. Nothing in this section shall be construed to authorize the board of directors of a credit union to waive any privileges that belong solely to the financial services board, the division, or its employees.

Source: L. 81: Entire section added, p. 616, § 2, effective July 1. L. 89: (4) amended, p. 611, § 4, effective April 19. L. 93: (4) amended, p. 1446, § 7, effective June 6. L. 94: (1) and (3) amended, p. 65, § 5, effective July 1. L. 99: (4) amended, p. 1009, § 2, effective August 4. L. 2004: (4) amended, p. 132, § 8, effective July 1. L. 2007: (4) amended, p. 2020, § 13, effective June 1. L. 2008: (4) amended, p. 179, § 1, effective August 5.

11-30-118. Dividends.

At such intervals and for such periods of time as the board of directors may authorize and after provision for the required reserves, the board of directors may declare a dividend. Dividends may be paid at various rates on different classes of shares, and dividend credit may be accrued on different classes of shares, as determined by the board of directors. Dividends shall not be paid in excess of available earnings.

Source: L. 31: p. 303, § 18. CSA: C. 47, § 18. L. 41: p. 377, § 18. L. 45: p. 309, § 3. L. 51: p. 315, § 6. CRS 53: § 38-1-18. C.R.S. 1963: § 38-1-18. L. 67: p. 321, § 15. L. 75: Entire section amended, p. 395, § 3, effective June 16. L. 81: Entire section amended, p. 613, § 3, effective July 1. L. 83: Entire section amended, p. 485, § 8, effective July 1. L. 84: Entire section amended, p. 375, § 9, effective July 1.

11-30-118.5. Preauthorized transfers - credit union must have written authorization. (Repealed)

Source: L. 88: Entire section added, p. 345, § 9, effective July 1. L. 89: Entire section repealed, p. 592, § 1, effective April 7.

11-30-119. Expulsion or withdrawal of members.

  1. Any member may withdraw from the credit union at any time, but notice of withdrawal may be required in the bylaws. The board of directors may expel any member from membership in the credit union if such member fails to comply with the written rules and policies of the credit union as adopted and made available to the membership.
  2. A member shall not be expelled until the member has been informed in writing of the reasons for the expulsion and has had reasonable opportunity to be heard.
  3. All amounts paid on shares or as deposits of an expelled member or withdrawing member, together with any dividends or interest accredited thereto, to the date thereof, as funds become available and after deducting all amounts due from the member to the credit union, shall be paid to such member. The credit union may require sixty days' written notice of intention to withdraw shares and thirty days' written notice of intention to withdraw deposits. Withdrawing or expelled members shall have no further rights in the credit union but shall not, by such expulsion or withdrawal, be released from any remaining liability to the credit union.
  4. (Deleted by amendment, L. 2004, p. 133 , § 9, effective July 1, 2004.)

Source: L. 31: p. 304, § 19. CSA: C. 47, § 19. L. 41: p. 377, § 19. CRS 53: § 38-1-19. C.R.S. 1963: § 38-1-19. L. 67: p. 322, § 16. L. 81: Entire section amended, p. 613, § 4, effective July 1. L. 2001: Entire section amended, p. 200, § 1, effective September 1. L. 2004: (3) and (4) amended, p. 133, § 9, effective July 1.

11-30-120. Suspension - liquidation - procedures.

    1. If it appears that any credit union is insolvent, or that it has willfully violated any provision of this article, or that it is operating in an unsafe or unsound manner, the commissioner may issue his order for such credit union to show cause why its operations should not be suspended until such insolvency, violation, or manner of operation is rectified and afford the credit union an opportunity for a hearing not less than ten days nor more than twenty days after such order. Such order shall be in writing and delivered by registered or certified mail. If the credit union fails to answer such order or if any officer or director of or attorney for the credit union fails to appear at the time set for the hearing, the commissioner either may revoke the certificate of incorporation of the credit union or may order the immediate suspension of operations of the credit union, except the collection of payments on outstanding loans or other obligations due the credit union, or both, and may enforce any such order by an action, filed in the district court of the judicial district wherein the principal office of the credit union is located, seeking to enjoin further operations or to appoint a receiver for such credit union.
    2. Any credit union to which an order to show cause has been issued pursuant to paragraph (a) of this subsection (1) may include with any answer or may present at any hearing resulting from such order its proposed plan to continue operations and rectify the insolvency, violation, or manner of operation specified in said order; or the credit union may request that it be dissolved and liquidated and a liquidating agent be appointed by the commissioner. Any credit union may request a stay of execution of any order of the commissioner revoking its certificate of incorporation or suspending its operations by filing an action in the district court for the judicial district in which the principal office of the credit union is located, within ten days after the issuance of such order.
    3. If the commissioner revokes the charter of the credit union, he shall appoint a liquidating agent to liquidate the assets of the credit union pursuant to subsection (3) of this section.
    4. If in the opinion of the board an emergency exists which may result in serious losses to the members, the board may revoke the charter of a credit union and immediately appoint a liquidating agent without notice or a hearing. Notice of the board's emergency determination shall be posted on the premises of the credit union that is the subject of the determination. Within ten days after an emergency determination by the board, the credit union or the directors of the credit union may file an application with the board to rescind such determination. The filing of an application to rescind a determination shall not act as a stay of the board's action pursuant to this subsection (1). The board shall grant the application if it finds that its action was unauthorized and upon granting an application shall rescind its action and restore the credit union to its board of directors. If no application is filed within ten days after the board's emergency determination, all action taken by the board shall be final.

    1. (1.5) (a) The commissioner may appoint himself or herself or a third party as conservator of any credit union and immediately take possession and control of the business and assets of the credit union if the commissioner determines that:
      1. Such action is necessary to conserve the assets of the credit union or to protect the interests of its members from acts or omissions of the existing management;
      2. The credit union, by a resolution of its board of directors, consents to such action;
      3. There is a willful violation of a cease-and-desist order that results in the credit union being operated in an unsafe or unsound manner; or
      4. The credit union is significantly undercapitalized and has no reasonable prospect of becoming adequately capitalized.
    2. The commissioner may appoint a conservator and take immediate possession of the credit union without prior notice or a hearing; except that, within ten days after the conservator is appointed, the credit union may file an appeal with the board requesting the board to rescind the commissioner's appointment of a conservator. Upon receipt of a timely appeal, the board shall set a date for a hearing and determine whether the commissioner's appointment should be rescinded; except that such appeal shall not act as a stay of the commissioner's action. If the board finds the commissioner's action was unauthorized, the board shall restore control of the credit union to its board of directors. If no appeal is filed within ten days after the commissioner's appointment of a conservator, any action taken by the commissioner shall be final.
    3. In extraordinary circumstances, upon order of the board, any hearing conducted pursuant to this subsection (1.5) shall be exempt from any provision of law requiring that proceedings of the board be conducted publicly. Such extraordinary circumstances occur when specific concern arises about prompt withdrawal of moneys from the credit union.
    4. The conservator shall have all the powers of the members, directors, officers, and committees of the credit union and shall be authorized to operate the credit union in its own name or to conserve its assets as directed by the commissioner. The conservator shall conduct the business of the credit union and make regular reports to the commissioner until such time as the commissioner has determined that the purposes of conservatorship have been accomplished and the credit union should be returned to the control of its board of directors. All costs incident to the conservatorship shall be paid out of the assets of the credit union. If the commissioner determines that the purposes of the conservatorship will not be accomplished, the commissioner may proceed with the involuntary liquidation of the credit union in the manner described in subsection (1) of this section.
    5. If a conservator is appointed, and is other than the national credit union administration, another approved insurer, or an employee of the division of financial services, the conservator and any assistants shall provide a bond, payable to the credit union and executed by a surety company authorized to do business in this state, which meets with the approval of the financial services board, for the faithful discharge of their duties in connection with such conservatorship and the accounting for all moneys coming into their hands. The cost of such bond shall be paid from the assets of the credit union. Suit may be maintained on such bond by any person injured by a breach of the conditions thereof. This requirement may be deemed met if the financial services board determines that the credit union's fidelity bond covers the conservator and any assistants.
  1. Any credit union may be voluntarily dissolved and liquidated upon majority vote of the entire membership thereof at a meeting especially called for the purpose or at the annual meeting where notice of such proposed action is mailed to the members at least thirty days prior to such meeting. In either event, a copy of the notice shall be delivered to the commissioner not less than ten days prior to such meeting. Any member of a credit union may cast his ballot for or against such dissolution and liquidation by mail within twenty days after such meeting. If a majority of the members of the credit union vote in favor of dissolution and liquidation, the board of directors, within five days after the close of voting, shall notify the commissioner of such action and specify the names and addresses of the directors and officers of the credit union who will conduct the dissolution and liquidation of the credit union. Upon such favorable vote, the credit union shall cease to do business except for the collection of payments on outstanding loans or other obligations due the credit union.
  2. Under any procedure to dissolve and liquidate a credit union pursuant to subsection (1) or (2) of this section, the credit union shall continue in existence for the purpose of discharging its debts, collecting and distributing its assets, and doing all acts required in order to wind up its business, and it may sue and be sued for the enforcement of its debts and operations until its affairs are fully adjusted in liquidation. The assets of the credit union shall be used to pay: First, the expenses incidental to liquidation; second, liabilities due nonmembers; and third, deposits and savings club accounts. Any remaining assets shall be distributed to the members proportionately to the shares held by each member as of the date of dissolution.
  3. Upon the liquidation and distribution of all assets of the credit union which may be reasonably expected to be collectible, the board of directors or the liquidating agent, as the case may be, shall execute in duplicate a certificate of dissolution, prescribed by the commissioner, upon which date the credit union shall cease to exist, and file the same with the secretary of state.

Source: L. 31: p. 304, § 20. CSA: C. 47, § 20. L. 41: p. 377, § 20. L. 51: p. 316, §§ 7, 8. CRS 53: § 38-1-20. C.R.S. 1963: § 38-1-20. L. 67: p. 322, § 17. L. 94: (1)(d) added, p. 65, § 6, effective July 1. L. 96: (4) amended, p. 185, § 4, effective April 8. L. 99: (1.5) added, p. 1010, § 3, effective August 4.

11-30-120.5. Conversion - state to federal credit union - federal to state credit union.

  1. A credit union organized under the provisions of this article may be converted into a federal credit union by complying with the requirements of this section.
    1. The proposition for such conversion shall first be approved by a majority of the directors of the credit union. If so approved, the proposition shall be submitted to a meeting of its members. The notice of such meeting shall be in writing and may be delivered in person to each member or mailed to each member at the address for such member appearing on the records of the credit union. Such delivery or mailing shall be not more than thirty days nor less than seven days prior to the time of the meeting. Approval of the proposition for conversion shall be by the affirmative vote of not less than two-thirds of the members present and voting at the meeting.
    2. A copy of the minutes of such meeting, verified by the affidavits of the president or vice-president and the secretary of the meeting, shall be filed with the administrator within ten days after the meeting.
  2. Within ninety days after such meeting, the credit union shall take such action as may be necessary under the federal credit union act to convert into a federal credit union, and, within ten days after receipt of the federal credit union charter, there shall be filed with the commissioner a copy of the charter thus issued. Upon such filing the credit union shall cease to be a state credit union.
  3. Upon ceasing to be a state credit union, such credit union shall no longer be subject to any of the provisions of the state law under which said credit union was organized; except that the successor federal credit union, being vested with all of the assets, shall continue to be responsible for all of the obligations of the state credit union to the same extent as though the conversion had not taken place.
  4. A credit union organized under the laws of the United States may be converted into a credit union organized under the laws of this state by complying with all requirements to cease being a federal credit union and doing all acts and obtaining all authorization necessary to organize as a credit union under the provisions of this article.

Source: L. 75: Entire section added, p. 396, § 2, effective June 16. L. 84: (5) added, p. 375, § 10, effective July 1. L. 90: (3) amended, p. 1838, § 11, effective May 31.

11-30-121. Change in place of business.

A credit union may change its place of business to a location outside of the county or city and county in which previously located upon receiving written permission therefor from the commissioner. A credit union may change its place of business within the county or city and county in which previously located by providing written notice of the new address and the effective date of such change to the commissioner.

Source: L. 31: p. 305, § 21. CSA: C. 47, § 21. L. 41: p. 378, § 21. L. 51: p. 316, § 9. CRS 53: § 38-1-21. C.R.S. 1963: § 38-1-21. L. 67: p. 323, § 18.

11-30-122. Merger.

  1. The method of merger of two or more credit unions shall be as follows:
      1. The board of directors of the continuing and each merging credit union shall:
        1. Approve a plan for the proposed merger; and
        2. Authorize representatives of each credit union to act on each credit union's behalf to bring about the merger.
      2. The plan shall include such information as the board deems appropriate.
    1. Upon approval of the merger plan by each board of directors for each credit union involved in the transaction, the merger plan, together with the resolutions of each board of directors, shall be submitted to the board. If the board determines that the merger plan complies with the provisions of this article and any applicable rules thereto, the board may approve the merger plan, subject to such other specific requirements as may be prescribed to fulfill the intended purposes of the proposed merger.
    2. A meeting of the members of each merging credit union involved shall be called for the purpose of considering a merger. Notice of the meeting, including purpose, date, time, place, and ballot of the merger plan shall be given to the entire membership. At such meeting, at least two-thirds of the members present and voting must approve the proposed merger. If any member approves or disapproves the merger by returning a ballot, signed by such member, to the secretary of the credit union at or before the meeting, such ballot for all purposes of this section shall be deemed equivalent to the vote of such member at such meeting, notwithstanding the member is not then present.
  2. The merger shall thereupon be consummated in the following manner:
    1. The duly authorized representatives of each credit union shall execute, in duplicate, a certificate of merger stating:
      1. That the board of directors of each credit union has approved the merger;
      2. That more than two-thirds of the members of each merging credit union have approved the terms and conditions of the proposed merger at a meeting of the members called for that purpose; and
      3. The name and location of the continuing credit union.
    2. The continuing credit union shall prepare and adopt any bylaw amendments required by the board, consistent with the provisions of this article, and execute the same in duplicate.
    3. The certificate above provided for and any required bylaw amendments, both executed in duplicate, shall be forwarded to the board.
  3. (Deleted by amendment, L. 2004, p. 133 , § 10, effective July 1, 2004.)
  4. If the board approves the certificate and bylaw amendments, it shall so notify the representatives and shall issue a certificate of approval, attach it to the duplicate certificate of merger, and return the same to the representatives of the participating credit unions together with the duplicate of the bylaw amendments.
  5. The duplicate of the certificate of merger with the board's certificate of approval attached shall be filed with the secretary of state who shall make a record of said certificate and return it, with his certificate of record attached, to the board for permanent record. The fee for said filing shall be determined and collected pursuant to section 24-21-104 (3), C.R.S.
  6. Thereupon the participating credit unions shall be merged in accordance with the provisions of this section. The continuing credit union shall take over the assets and assume all the liabilities of each merging credit union.
  7. A state chartered credit union may merge with a federal credit union provided all requirements outlined in this article and the appropriate federal credit union regulations have been complied with and approval of such proposed merger has been authorized by the board of directors of each credit union involved.

Source: L. 31: p. 305, § 21. CSA: C. 47, § 21. L. 41: p. 378, § 21. L. 51: p. 316, § 9. CRS 53: § 38-1-22. C.R.S. 1963: § 38-1-22. L. 75: (1) amended and (7) added, p. 397, § 3, effective June 16. L. 83: (5) amended, p. 876, § 40, effective July 1. L. 84: (2)(a) amended, p. 376, § 11, effective July 1. L. 90: (2)(c) and (3) to (5) amended, p. 1838, § 12, effective May 31. L. 93: (2)(c) and (3) to (5) amended, p. 1446, § 8, effective June 6. L. 2004: (1) to (4) and (6) amended, p. 133, § 10, effective July 1. L. 2005: (2)(a) amended, p. 763, § 16, effective June 1.

11-30-123. Taxation.

A credit union shall be deemed an institution for savings and, together with all accumulations therein, shall not be subject to taxation except as to real estate owned. The shares of a credit union shall not be subject to a stock transfer tax when issued by the corporation or when transferred from one member to another.

Source: L. 31: p. 305, § 22. CSA: C. 47, § 22. L. 41: p. 378, § 22. CRS 53: § 38-1-23. C.R.S. 1963: § 38-1-23.

ANNOTATION

No exemption as to payment of sales taxes is provided to state chartered credit unions. Southwest Catholic Credit Union v. Charnes, 665 P.2d 626 (Colo. App. 1982).

11-30-124. Transfer of functions - conforming of statutes.

  1. As of April 11, 1988, the powers, duties, and functions of the state bank commissioner under this article are transferred to the state commissioner of financial services.
  2. On April 11, 1988, all employees of the division of banking whose principal duties are concerned with the powers, duties, and functions transferred to the state commissioner of financial services and whose employment in the division of financial services is deemed necessary by the executive director of the department of regulatory agencies to carry out the purposes of this article are transferred to the division of financial services and shall become employees thereof. Such employees shall retain all rights to state personnel system and retirement benefits under the laws of this state, and their services shall be deemed to have been continuous.
  3. On April 11, 1988, all items of property, real and personal, including office furniture and fixtures, books, documents, and records of the division of banking pertaining to the powers, duties, and functions transferred to the state commissioner of financial services pursuant to this section shall be transferred to the division of financial services and shall become the property thereof.
  4. Whenever the state bank commissioner or the division of banking is referred to or designated by any contract or other document in connection with the powers, duties, and functions transferred to the state commissioner of financial services, such reference or designation shall be deemed to apply to the state commissioner of financial services or the division of financial services, as the case may be. All contracts entered into by the state bank commissioner or the division of banking prior to April 11, 1988, in connection with the powers, duties, and functions transferred to the state commissioner of financial services are hereby validated, with the state commissioner of financial services succeeding to all the rights and obligations of such contracts.
  5. On April 11, 1988, any unexpended appropriations of funds for the current fiscal year made to the division of banking and allocated for the administration and enforcement of this article shall be transferred to the division of financial services. The executive director of the department of regulatory agencies shall have the final authority to determine the allocation of funds for purposes of the transfer under this subsection (5).
  6. The revisor of statutes is authorized to change all references to the state bank commissioner in this article to refer to the state commissioner of financial services and to change all references to the division of banking in this article to refer to the division of financial services.

Source: L. 88: Entire section added, p. 416, § 6, effective April 11. L. 89: Entire section amended, p. 618, § 9, effective July 1.

11-30-125. Notice of branch opening and closing.

  1. Any credit union that has its principal place of business in this state, upon thirty days' prior written notice to the state commissioner of financial services, may establish one or more de novo branches anywhere in this state.
  2. No later than ninety days prior to the proposed date of any branch closing, a notice of branch closing shall be filed with the commissioner. The notice of branch closing shall include a detailed statement of the reasons for the decision to close the branch and statistical or other information in support of such reasons.

Source: L. 2004: Entire section added, p. 135, § 11, effective July 1.

11-30-126. Trust account - limited documentation required - certificate of trust.

  1. For any transaction with any credit union in this state by one or more persons expressly acting as a trustee or trustees for one or more other named person or persons pursuant to or purporting to be pursuant to a written trust agreement, a trustee may provide the credit union with a certificate of trust to evidence the trust relationship. The certificate of trust must be a duly acknowledged affidavit executed by any trustee and must include the following:
    1. A statement that the trust exists and the date the trust instrument was executed;
    2. The identity of the settlor;
    3. The identity and address of the current acting trustee;
    4. The powers of the trustee in the pending transaction;
    5. A statement whether the trust is revocable and the identity of any person holding the power to revoke the trust;
    6. The authority of cotrustees to sign or otherwise authenticate and whether all or fewer than all cotrustees are required in order to exercise the powers of the trustee;
    7. The name in which title to trust property may be taken; and
    8. Any other information that may be required by the credit union, including an indemnification that is acceptable to the credit union.
  2. If a credit union decides to accept a certificate of trust pursuant to this section:
    1. For a transaction that consists of opening a deposit account, the credit union may administer the account in accordance with the certificate of trust without requiring receipt of a copy of the written trust agreement; and
    2. For a transaction that consists of obtaining, guaranteeing, or encumbering trust property to secure a loan, or entering into any agreement with a credit union, the trustee or trustees shall be conclusively presumed to have had the authority specified in the trust certificate for purposes of determining whether the trustees were acting within their authority in entering into, or causing the trust to enter into, a transaction, even if the certificate of trust is contrary to the terms of the written trust agreement, unless the credit union has actual knowledge that the terms of the written trust agreement are contrary to the terms of the certificate of trust.
  3. If a credit union decides to accept a certificate of trust in opening a deposit account pursuant to this section, upon the death, resignation, or adjudication of incompetence of all named trustees and successor trustees noted on the certificate of trust, the credit union may withhold disposition of any funds on deposit in the account until receipt of one of the following:
    1. An order by a court of competent jurisdiction directing the disposition of funds;
    2. A newly executed certificate of trust created pursuant to this section from a person acting or purporting to act as a newly appointed successor trustee under the same trust; or
    3. Other documentation that establishes to the satisfaction of the credit union the manner in which the funds are to be administered or distributed.
  4. If a credit union decides to accept a certificate of trust in opening a deposit account pursuant to this section, the credit union shall not be liable for administering the account as provided by the certificate of trust, even if the certificate of trust is contrary to the terms of the written trust agreement, unless the credit union has actual knowledge that the terms of the written trust agreement are contrary to the terms of the certificate of trust.
  5. Nothing in this section obligates a credit union to enter into a transaction with a trustee who refuses to furnish the credit union with a copy of a written trust agreement. In addition, nothing in this section shall be construed to prohibit a credit union from requesting additional information in order to enter into a transaction with a trustee, including a request that the certificate of trust be executed by all trustees.
  6. Knowledge of the terms of a written trust agreement may not be inferred solely from the fact that a copy of all or part of a written trust agreement is held by the person relying upon the certification or affidavit.

Source: L. 2017: Entire section added, (HB 17-1157), ch. 77, p. 242, § 2, effective March 23.

MARIJUANA FINANCIAL SERVICES COOPERATIVES

ARTICLE 33 MARIJUANA FINANCIAL SERVICES COOPERATIVES

Section

11-33-101. Short title.

This article shall be known and may be cited as the "Marijuana Financial Services Cooperatives Act".

Source: L. 2014: Entire article added, (HB 14-1398), ch. 353, p. 1621, § 1, effective June 6.

11-33-102. Legislative declaration.

  1. The general assembly hereby:
    1. Finds that:
      1. Because marijuana is currently illegal to grow, possess, or sell under federal law, financial institutions are reluctant to provide financial services to marijuana businesses even when those businesses are properly licensed and fully legal under Colorado law; and
      2. Consequently, most Colorado-licensed marijuana businesses must operate almost entirely on a cash-only basis;
    2. Declares that this lack of access to financial services harms the public interest by:
      1. Stimulating the marijuana black market's competitive advantage by increasing licensed marijuana businesses' costs of doing business;
      2. Increasing the crime rate associated with licensed marijuana businesses due to the large amounts of cash that must be kept on premises; and
      3. Impeding Colorado's ability to track and independently verify the accounting of licensed marijuana businesses' revenues; and
    3. Declares that the enactment of this article, by authorizing the formation of marijuana financial services cooperatives, is necessary for the promotion and preservation of the public welfare.

Source: L. 2014: Entire article added, (HB 14-1398), ch. 353, p. 1621, § 1, effective June 6.

11-33-103. Definitions.

As used in this article 33, unless the context otherwise requires:

  1. "Cannabis credit co-op" or "co-op" means a marijuana financial services cooperative.
  2. "Commissioner" means the state commissioner of financial services appointed pursuant to section 11-44-102.
  3. "Division" means the division of financial services created in section 11-44-101.
  4. "Licensed marijuana business" means an entity licensed pursuant to parts 5 and 6 of article 10 of title 44.
  5. "Member" means a licensed marijuana business, industrial hemp business, or an entity that provides goods or services to a licensed marijuana business and that provides documentation to the co-op of an inability to get comparable services from a bank or credit union, acting through one or more of its current partners, executive officers, or directors.

Source: L. 2014: Entire article added, (HB 14-1398), ch. 353, p. 1622, § 1, effective June 6. L. 2018: IP and (4) amended, (HB 18-1023), ch. 55, p. 584, § 5, effective October 1. L. 2019: (4) amended, (SB 19-224), ch. 315, p. 2935, § 9, effective January 1, 2020.

11-33-104. Organization - charter - investigation.

  1. A marijuana financial services cooperative, referred to in this article as a cannabis credit co-op, is a cooperative association incorporated pursuant to this article for the twofold purpose of providing specified financial services to its members and creating a source of credit for them.
  2. A co-op may be organized in the following manner:
      1. Any eight or more Colorado residents may execute, in a number of copies to be specified by the commissioner, articles of incorporation that set forth the terms by which they agree to be bound. The articles must state the name and address of the proposed co-op; the names and addresses of the incorporators; the number of shares subscribed by each incorporator; and the term of existence of the corporation, which may be perpetual.
      2. A co-op may be incorporated and organized for the purpose of providing financial services to licensed marijuana businesses in good standing with the executive director of the state licensing authority created in section 44-10-201, industrial hemp businesses, and entities that provide goods or services to licensed marijuana businesses and that provide documentation to the co-op of an inability to get comparable services from a bank or credit union.
    1. The incorporators must prepare, in a number of copies to be specified by the commissioner, proposed bylaws for the governing of the co-op, consistent with this article, on standard forms approved by the commissioner and must define in the bylaws the proposed eligibility requirements for membership.
    2. The proposed bylaws must set forth:
      1. The classes of shares that the co-op is authorized to issue;
      2. If the shares are to consist of one class only, the par value of each of the shares or a statement that all of the shares are without par value, or, if the shares are to be divided into classes, a statement of the par value of the shares of each such class or that the shares are to be without par value; and
      3. If the shares are to be divided into classes, the bylaws must designate each class and a statement of its preferences, limitations, and relative rights with respect to the shares of each other class.
    1. The incorporators must file an application in such form as may be prescribed by the commissioner together with the articles of incorporation and the bylaws with the commissioner, in a number of copies to be specified by the commissioner, upon the payment of a filing fee, as determined from time to time by the commissioner, to cover the reasonable and necessary expense to the division attributable to the application. Within sixty days after the filing and payment of the fee, the commissioner shall determine whether the application complies with this article and whether the co-op would benefit its members and proposed members, consistent with the purposes of this article, the general character and fitness of the incorporators, and the economic advisability of establishing the proposed co-op. Upon such determination and written evidence of approval by the federal reserve system board of governors, the commissioner may approve or deny an application without notice and hearing. If federal deposit insurance provided by the federal deposit insurance corporation or national credit union administration becomes available for banks, savings and loan associations, and credit unions organized to provide financial services to the licensed marijuana industry, the commissioner may determine that the continued issuance of charters under this article is no longer necessary or desirable.
    2. The commissioner shall make or cause to be made an investigation to determine whether the incorporators and organizers are qualified and whether their qualifications, experience concerning federal compliance issues, and financial experience are consistent with their responsibilities and duties. The commissioner shall investigate whether an incorporator or organizer has been convicted of any criminal activity. The commissioner may establish by rule the content of the investigations and what, if any, investigations by other agencies or authorities may be treated as substantially equivalent to and accepted in lieu of an investigation by the commissioner.
    1. Before the commencement of operations or the conduct of business by the co-op, the incorporators of the co-op must provide to the commissioner written evidence of approval by the federal reserve system board of governors for access by the co-op to the federal reserve system in connection with the proposed depository activities of the co-op.
    2. Upon receipt of written evidence of approval by the federal reserve system board of governors:
      1. The commissioner and the executive director of the department of regulatory agencies shall convene a stakeholder group, including all trade associations representing banks and credit unions, to identify conflicts that may exist between this article and other provisions of state law, including title 4, C.R.S. The commissioner shall file a report with the general assembly regarding the conflicts and suggested resolution of the conflicts, and shall not approve an application or issue a certificate pursuant to subparagraph (II) of this paragraph (b) until the general assembly resolves all of the identified state law conflicts.
      2. Upon approval of an application, receipt of all necessary documents, and resolution of any state law conflicts as specified in subparagraph (I) of this paragraph (b), the commissioner shall issue a certificate of approval, in a number of copies equal to the number of copies of the articles of incorporation required to be filed pursuant to paragraph (a) of subsection (2) of this section as specified by the commissioner, and attach a copy of the certificate to each copy of the articles of incorporation. The incorporators must then file approved articles with the secretary of state and a copy of the articles, certified by the secretary of state, with the commissioner. The incorporators must pay to the secretary of state a fee for filing the articles of incorporation and a fee for certifying the copy of articles of incorporation furnished by the incorporators for filing with the commissioner, both fees to be determined and collected pursuant to section 24-21-104 (3), C.R.S.
    1. After the incorporators have filed a certified copy of articles of incorporation with the commissioner, the commissioner shall issue a charter for the co-op, at which time the co-op becomes a body corporate having the powers enumerated in section 7-103-102, C.R.S., except as otherwise provided or limited in this article.
    2. The commissioner shall not permit more than ten co-op charters to be outstanding at any one time.
  3. The initial board of directors of the co-op shall then adopt the bylaws approved by the commissioner.

Source: L. 2014: Entire article added, (HB 14-1398), ch. 353, p. 1622, § 1, effective June 6. L. 2018: (2)(a)(II) amended, (HB 18-1023), ch. 55, p. 585, § 6, effective October 1. L. 2019: (2)(a)(II) amended, (SB 19-224), ch. 315, p. 2935, § 10, effective January 1, 2020.

11-33-105. Bylaws.

The commissioner shall cause to be prepared a standard form of bylaws, consistent with this article, to be issued to all cannabis credit co-ops. All co-ops shall operate under the standard bylaws; except that each co-op, subject to the approval of the commissioner, must propose its own name, the number of members of its board of directors, its credit committee, its supervisory committee, provisions relative to times and places of meetings of the membership and of the board of directors, provisions relative to the conduct of elections and balloting of the co-op, and modifications of the standard bylaws deemed appropriate by the board of directors for the operation of the individual co-op. The commissioner must approve any and all amendments to the bylaws before they become operative.

Source: L. 2014: Entire article added, (HB 14-1398), ch. 353, p. 1625 § 1, effective June 6.

11-33-106. Membership - disclosures.

  1. Cannabis credit co-op membership consists of licensed marijuana businesses, industrial hemp businesses, and entities that provide goods or services to licensed marijuana businesses and that provide documentation to the co-op of an inability to get comparable services from a bank or credit union, that are qualified and elected to membership and that pay any entrance fee; except that the co-op shall perform due diligence on each applicant for membership, including background checks and investigations, as specified in section 11-33-126 before the co-op grants the applicant membership in the co-op.
    1. Co-op membership is limited to only entities that own, operate, or are licensed marijuana businesses in good standing with the executive director of the state licensing authority created in section 44-10-201, industrial hemp businesses, and entities that provide goods or services to licensed marijuana businesses and that provide documentation to the co-op of an inability to get comparable services from a bank or credit union.
    2. An individual is not qualified to be a member of a co-op, regardless of whether the individual is licensed, including pursuant to section 44-10-401 (2)(c), to own, operate, manage, or be employed by a licensed marijuana business, either as a sole proprietor or any other form of ownership that gives the individual sole control over the licensed marijuana business.
  2. Once a member no longer owns or operates a licensed marijuana business or industrial hemp business, or no longer provides goods or services to a licensed marijuana business, the member is no longer qualified to be a member and shall promptly terminate its deposits with and repay its loans from the co-op.
    1. Each co-op shall disclose to its members or prospective members that:
      1. Federal law does not authorize financial institutions, including marijuana financial services cooperatives, to accept proceeds from activity that is illegal under federal law, such as that from licensed marijuana businesses;
      2. Deposits with and the capital of the co-op are:
        1. Subject to seizure by the federal government;
        2. Not federally insured;
        3. Not backed by the full faith and credit of the state of Colorado; and
      3. It is not the obligation of the state of Colorado to defend the co-op or its deposits and capital in the event of a seizure.
    2. A co-op shall make the disclosures:
      1. On its website;
      2. In each advertisement or offer of services;
      3. Before accepting an applicant as a member; and
      4. Before a member accepts a loan from the co-op.

Source: L. 2014: Entire article added, (HB 14-1398), ch. 353, p. 1625, § 1, effective June 6. L. 2018: (2) amended, (HB 18-1023), ch. 55, p. 585, § 7, effective October 1. L. 2019: (2) amended, (SB 19-224), ch. 315, p. 2935, § 11, effective January 1, 2020.

11-33-107. Powers.

  1. A cannabis credit co-op has the power to:
    1. Receive the savings of its members either as payment on shares or as deposits;
    2. Make loans to its members;
    3. Make loans to other co-ops as provided in this article;
    4. Make deposits in state and national financial institutions insured by an agency of the federal government that voluntarily accepts those deposits;
    5. Invest in any of the following:
      1. Obligations of the United States or securities guaranteed or insured by any agency of the United States;
      2. Obligations of any state or territory of the United States, or of any political subdivision or instrumentality thereof, except revenue obligations issued to provide, enlarge, or improve electric power, gas, water, or sewer facilities, or any combination thereof, issued by any city or town, or other similar municipal corporation having a population of fewer than five thousand persons, as determined by the latest federal decennial census; and
      3. To an extent that must not exceed ten percent of its shares, deposits, and undivided earnings, in shares of mutual funds or investment companies, stocks, bonds, or other securities of any corporation or religious or educational organizations;
    6. Acquire, through purchase or other lawful transactions, and hold title to real and personal property necessary and incidental to the operation of the co-op, and sell, mortgage, or otherwise dispose of the property;
    7. Exercise such incidental powers as are necessary to enable it to carry on effectively the business for which it is incorporated as authorized in this article;
    8. Sell all or any portion of its assets and purchase all or any portion of the assets of another co-op and assume the liabilities of the selling co-op, subject to the approval of the commissioner; and
    9. Participate with other co-ops or financial organizations in making loans to co-op members when the borrower is a member of either the co-op originating the loan or the co-op purchasing a participation interest in the loan.

Source: L. 2014: Entire article added, (HB 14-1398), ch. 353, p. 1626, § 1, effective June 6.

11-33-108. Title protection.

  1. A cannabis credit co-op:
    1. Shall not use the word "bank" or the phrase "credit union" in its articles of incorporation, trade name, or an advertisement or offer of services;
    2. Shall use:
      1. The phrase "marijuana financial services cooperative" in its articles of incorporation; and
      2. The words "marijuana" or "cannabis" in its trade name and any advertisement or offer of services; and
    3. May use the phrases "financial services cooperative", "financial services co-op", "financial cooperative", "financial co-op", "credit cooperative", or "credit co-op" in its trade name or an advertisement or offer of services.
    1. A co-op organized in accordance with this article has the exclusive right to use the phrases "cannabis credit cooperative", "marijuana credit cooperative", "cannabis credit co-op", "marijuana credit co-op", "cannabis financial services cooperative", "marijuana financial services cooperative", "cannabis financial services co-op", and "marijuana financial services co-op" in its name, title, and advertisements or offers of services; but an association composed of co-ops transacting business in this state may use those phrases in its name, title, and advertisements or offers of services.
    2. Any person other than a co-op or an association of co-ops using the phrases specified in paragraph (a) of this subsection (2) in its name, title, or advertisements or offers of services is guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine of not more than five hundred dollars, imprisonment in the county jail for not more than sixty days, or both.

Source: L. 2014: Entire article added, (HB 14-1398), ch. 353, p. 1627, § 1, effective June 6.

11-33-109. Examinations - reports - powers of commissioner - rules - fund created.

    1. Cannabis credit co-ops are under the supervision of the commissioner. The commissioner shall examine every co-op at least once during any six-month period. The commissioner shall assess each co-op an amount to cover the expenses of the division attributable to the supervision of co-ops. The commissioner shall determine the amount assessed according to a schedule or schedules or any other method established by the commissioner to be appropriate, but the assessment must be at the same rate for all co-ops. The commissioner may waive the payment of all or a portion of the assessment with respect to a year in which a charter is issued or cancelled or in which a final distribution is made in liquidation.
    2. The commissioner shall establish the division's annual assessment, to be collected at least semiannually in amounts sufficient to generate the moneys appropriated by the general assembly to the division for each fiscal year.
      1. There is hereby created in the state treasury the cannabis credit co-op fund, consisting of:
        1. Revenues appropriated to the fund; and
        2. Assessments made pursuant to paragraph (a) of this subsection (1).
      2. Revenues credited to the fund and unexpended at the end of each fiscal year remain in the fund and do not revert to the general fund. All interest derived from the deposit and investment of revenues in the fund remains in the fund and does not revert to the general fund. The division shall use revenues in the fund only for the purpose of implementing this article.
  1. Quarterly, every co-op shall file a financial report with the commissioner on a date established by the commissioner, in a form prescribed by the commissioner. The commissioner may require that additional reports be filed. For failure to file a report when due, unless excused for cause, a co-op shall pay to the commissioner a penalty, as prescribed by rule, for each day of delinquency in filing.
  2. The commissioner may adopt rules necessary for the administration and enforcement of this article and shall reference the rules to the sections of this article to which they apply. The commissioner shall promulgate the rules pursuant to article 4 of title 24, C.R.S., and shall mail a copy of the rules and of each order to each co-op at least thirty days before their effective date, except as to temporary or emergency rules.
  3. Except in cases where there is a statutory right to appeal to the commissioner, any person aggrieved and directly affected by a final order of the commissioner may obtain judicial review of the order by filing an action for review with the Colorado court of appeals pursuant to section 24-4-106 (11), C.R.S., within thirty days after the date of issuance of the order.
  4. The commissioner may charge off the whole or any part of any asset of any co-op that could not be lawfully acquired by it and to reduce the value of any asset of a co-op to its market value or to a reasonable value, if no market value can be established. If the losses of a co-op exceed its undivided earnings and reserve funds so that the reasonable value of its assets is less than the total amount due the shareholders, the commissioner may order a reduction in the liability to each shareholder, dividing the loss proportionately among all shareholders. Any reduction from each share account must be a specified percentage sufficient to correct the impaired condition and preserve the solvency of the co-op. If thereafter the co-op realizes from the assets a greater amount than that fixed by the order of reduction, the commissioner shall divide the excess proportionately among the shareholders to whom liability was previously reduced, but only to the extent of the reduction.
  5. The commissioner may issue subpoenas and require attendance of any officers, directors, agents, and employees of a co-op and such other witnesses as the commissioner deems necessary in relation to its affairs, transactions, and conditions, and may require the witnesses to appear and answer such questions as the commissioner puts to them, and may require the witnesses to produce such books, papers, or documents in their possession as the commissioner may require. Upon application of the commissioner, a person served with a subpoena issued by the commissioner may be required, by order of the district court of the county where the co-op has its principal office, to appear and answer such questions as the commissioner may put to the witness and be required to produce such books, papers, or documents in the witness' possession as the commissioner may require.
  6. The commissioner may issue cease-and-desist orders if the commissioner determines from competent and substantial evidence that a co-op is engaged or has engaged, or when the commissioner has reasonable cause to believe the co-op is about to engage, in an unsafe or unsound practice or is violating or has violated, or when the commissioner has reasonable cause to believe the co-op is about to violate, a material provision of any law or rule or any condition imposed in writing by the commissioner or any written agreement made with the commissioner.
      1. The commissioner may suspend or remove a director, officer, or employee of a co-op when the commissioner determines that the person has: (8) (a) (I) The commissioner may suspend or remove a director, officer, or employee of a co-op when the commissioner determines that the person has:
        1. Violated a provision of this article or a lawful rule or order issued pursuant to this article;
        2. Engaged or participated in an unsafe or unsound practice in the conduct of a co-op;
        3. Committed or engaged in an act, omission, or practice that constitutes a breach of fiduciary duty to the co-op, and the co-op has suffered or will probably suffer financial loss or other damage, or the interests of members or account holders may be seriously prejudiced thereby; or
        4. Received financial gain by reason of a violation, practice, or breach of fiduciary duty that involved personal dishonesty or demonstrated a willful or continuing disregard for the safety or soundness of the co-op.
      2. The commissioner may suspend or remove a director, officer, or employee of a co-op who, under the laws of this state, the United States, or any other state or territory of the United States:
        1. Has entered a plea of guilty or nolo contendere to or been convicted of a crime involving theft or fraud that is classified as a felony; or
        2. Is subject to an order removing or suspending the individual from office or prohibiting the individual's participation in the conduct of the affairs of a co-op, savings and loan association, bank, or other financial institution.
      1. A suspension or removal order must specify the grounds for the suspension or removal. The commissioner shall send a copy of the order to the co-op concerned and to each member of its board of directors. The commissioner shall send written notice by certified mail, return receipt requested, to each person affected by paragraph (a) of this subsection (8) at least ten days before a hearing held pursuant to section 24-4-105, C.R.S., at which the commissioner shall preside.
      2. If the commissioner determines that extraordinary circumstances require immediate action, the commissioner may suspend or remove a person under paragraph (a) of this subsection (8) without notice or a hearing, but the commissioner shall conduct a hearing under section 24-4-105, C.R.S., within thirty days after the suspension or removal.
      3. In extraordinary circumstances, upon order of the commissioner, a hearing conducted pursuant to this section is exempt from any provision of law requiring that proceedings of the commissioner be conducted publicly. Extraordinary circumstances occur when specific concern arises about prompt withdrawal of moneys from the co-op.
      4. A person who performs a duty or exercises a power of a co-op after receipt of a suspension or removal order under paragraph (a) of this subsection (8) commits a class 1 misdemeanor and shall be punished as provided in section 18-1.3-501, C.R.S.

Source: L. 2014: Entire article added, (HB 14-1398), ch. 353, p. 1628, § 1, effective June 6.

11-33-110. Assessment of civil fines.

    1. After notice and a hearing as provided in article 4 of title 24, C.R.S., and after making a determination that no other appropriate governmental agency has taken similar action against the person for the same act or practice, the commissioner may assess and collect a civil fine from a person who has violated a final cease-and-desist order issued by the commissioner pursuant to section 11-33-109 (7) or a suspension order issued pursuant to section 11-33-122.
    2. For the purposes of this section, a violation includes an action by any person, alone or with another person, that causes, brings about, or results in the participation in, counseling of, or aiding or abetting of a violation.
    3. In extraordinary circumstances, upon order of the commissioner, a hearing conducted pursuant to this section is exempt from any provision of law requiring that proceedings of the commissioner be conducted publicly. Extraordinary circumstances occur when specific concern arises about prompt withdrawal of moneys from a co-op.
    1. The commissioner must assess civil fines by written notice of assessment of a civil fine served upon the person to be assessed. The notice of assessment of a civil fine must state the amount of the fine, the period for payment, the legal authority for the assessment, and the matters of fact or law constituting the grounds for assessment. The person may file a request for a rehearing regarding the notice of assessment of a civil fine with the commissioner pursuant to paragraph (b) of this subsection (2).
    2. A person must file the notice of rehearing with the commissioner within thirty days after the assessment. The notice must contain a brief statement of the pertinent facts upon which the request is based. Within sixty days after the request is filed, the commissioner shall fix a date, time, and place for the rehearing and shall notify the person at least thirty days before the date of the rehearing. The commissioner may stay the civil fine pending the rehearing. On rehearing, the commissioner may consider, among other matters, whether the civil fine assessed is appropriate considering the financial resources of the person assessed. The decision of the commissioner is final agency action.
    3. In extraordinary circumstances, upon order of the commissioner, a rehearing conducted pursuant to paragraph (a) of this subsection (2) is exempt from any provision of law requiring that proceedings of the commissioner be conducted publicly. Extraordinary circumstances occur when specific concern arises about prompt withdrawal of moneys from a co-op.
  1. In determining the amount of the civil fine to be assessed, the commissioner shall consider the good faith of the person assessed, the gravity of the violation, any previous violations by the person assessed, and such other matters as the commissioner deems appropriate; except that the civil fine must be not more than one thousand dollars per day for each day the person assessed is determined by the commissioner to be in violation of a cease-and-desist order or an order of suspension or removal. Alternatively, the commissioner may assess a civil fine for the violation in a lump sum amount not to exceed fifty thousand dollars.
  2. Civil fines assessed pursuant to this section are due and payable and must be collected within thirty days after the commissioner issues the notice of assessment of a civil fine; except that the commissioner may compromise, modify, or set aside any civil fine. If a person fails to pay an assessment after it has become due and payable, the commissioner may refer the matter to the attorney general, who shall recover the amount assessed by action in the district court for the city and county of Denver. A civil fine collected pursuant to this section shall be transmitted to the state treasurer, who shall credit it to the general fund.

Source: L. 2014: Entire article added, (HB 14-1398), ch. 353, p. 1631, § 1, effective June 6.

11-33-111. Fiscal year - meetings.

The fiscal year of all cannabis credit co-ops ends on December 31 of each year. The co-op shall hold its annual meeting within five months after the close of the fiscal year. Special meetings may be held in the manner indicated in the bylaws. At all meetings a member has but a single vote, whatever the member's share holdings. Voting by proxy is prohibited.

Source: L. 2014: Entire article added, (HB 14-1398), ch. 353, p. 1632, § 1, effective June 6.

11-33-112. Elections.

    1. At the annual meeting, or by other proper balloting within thirty days before and twenty days after the annual meeting, the cannabis credit co-op members must elect from the membership, or the board of directors must appoint as provided in the bylaws of the co-op:
      1. A board of directors of not less than five members;
      2. A supervisory committee of not less than three members; and
      3. A credit committee of not less than three members or a credit officer.
    2. In addition, the co-op members may elect, or the board may appoint, one or more alternate members of the credit committee to serve in the absence of members of the credit committee.
  1. All persons appointed or elected pursuant to subsection (1) of this section hold office for the terms specified in the bylaws and until successors are elected or appointed and are qualified. A person shall not hold more than one elected office simultaneously.
  2. The co-op shall file with the commissioner a record of the names and addresses of the members of the board and the committees, alternates, and officers within twenty days after their election or appointment.

Source: L. 2014: Entire article added, (HB 14-1398), ch. 353, p. 1632, § 1, effective June 6.

11-33-113. Directors and officers.

  1. At its first meeting after the annual election, the board of directors shall elect from its own number: An executive officer, who may be designated as chair of the board or president; a vice-chair of the board or one or more vice-presidents; a treasurer; and a secretary. A single person shall not serve as both secretary and treasurer. The persons so elected are the executive officers of the corporation. The board of directors is responsible for the general management of the affairs of the cannabis credit co-op, and more specifically for:
    1. Acting on applications for membership, or appointing from among the membership of the co-op one or more membership officers who may act on applications for membership;
    2. Setting policies, terms, and conditions under which loans will be available to members, and determining interest rates on loans and on deposits;
    3. Fixing the amount of the blanket surety bond that covers all elected and appointed officials and all employees of the co-op. The blanket surety bond must be in an amount equal to the assets of the co-op as of December 31 of the previous year or one million dollars, whichever is less, or in such other amount as the commissioner may prescribe.
    4. Declaring dividends and, subject to approval by the commissioner, adopting amendments to the bylaws of the co-op;
    5. Determining when any vacancy exists in the board of directors or in the credit committee, filling vacancies in the board and in the credit committee until successors are elected or appointed and qualify, and appointing one or more assistant secretaries or treasurers or both, as needed; and the board shall employ:
      1. An officer in charge of operations whose title is either president or chief executive officer to act as general manager and who shall be in active charge of the affairs of the co-op; and
      2. A chief financial officer;
    6. Determining the maximum individual share holdings in the co-op and the maximum amount of individual loans that can be made either with or without security;
    7. Having charge of and supervising investments of co-op funds;
    8. Maintaining records pursuant to rules promulgated by the commissioner concerning how long records must be retained and in what manner;
    9. Providing for compensation for necessary clerical and auditing assistance requested by the supervisory committee and of loan officers appointed by the credit committee and establishing any salary to be paid to the chief executive officer, president, or chief financial officer.
  2. The bylaws must determine the duties of the officers; except that the treasurer is the general manager if a general manager has not been employed pursuant to paragraph (e) of subsection (1) of this section.

Source: L. 2014: Entire article added, (HB 14-1398), ch. 353, p. 1633, § 1, effective June 6.

11-33-114. Credit committee - credit officer.

The credit committee or credit officer is responsible for the general supervision of all loans to members. Applications for loans must be on a form approved by the credit committee or the credit officer. At least a majority of the members of the credit committee or the credit officer must approve or disapprove all loans; except that the credit committee or the credit officer may appoint one or more loan officers and delegate to the loan officer the power to approve or disapprove loans that are within limits prescribed by the credit committee or the credit officer. Each loan officer shall furnish to the credit committee or the credit officer a record of each loan application received by the loan officer within seven days after the date of filing of the application. The credit committee or the credit officer may consider all loans not approved by a loan officer. A member of the credit committee shall not receive any compensation as a loan officer or be employed by the cannabis credit co-op in any other capacity. A credit officer may receive compensation in connection with the performance of his or her duties. The credit committee shall meet as often as necessary after due notice to each member. Vacancies in the credit committee shall be filled pursuant to section 11-33-113 (1)(e).

Source: L. 2014: Entire article added, (HB 14-1398), ch. 353, p. 1634, § 1, effective June 6.

11-33-115. Supervisory committee.

  1. The supervisory committee shall:
    1. Make, or cause to be made, a comprehensive annual audit of the books and affairs of the cannabis credit co-op and shall submit a report of the annual audit to the board of directors and a summary of that report to the members at the next annual meeting. The committee shall make or cause to be made such supplementary audits or examinations as it deems necessary or as required by the commissioner.
    2. Make an annual report and submit the report at the annual meeting of the members;
    3. By unanimous vote of the committee if it deems the action to be necessary for the proper conduct of the co-op, temporarily suspend an officer or director of the co-op or a member of the credit committee, and call a special meeting of the members of the co-op not less than seven nor more than fourteen days after the suspension to take final action on the suspension. The members at the meeting may sustain the suspension and remove the officer, director, or member of the credit committee permanently and elect a successor thereto for the unexpired term of office or may reinstate the person.
    4. Annually verify, or cause to be verified, by a random sampling or by verification of all members' accounts, the members' share, deposit, and loan accounts. The verification may be obtained by either sending or causing to be sent a statement of account to each member or by such means as may be specified by the commissioner.
    5. Not less frequently than twice annually, or as otherwise required by the commissioner, examine the continued eligibility of each member and expel each member that is no longer qualified to be a member.
  2. By majority vote, the supervisory committee may call a special meeting of the members of the co-op to consider a violation of a provision of this article, rules of the commissioner, the bylaws, or a rule or requirement of the co-op, by an officer, director, member of a committee, or a member, that the committee deems to be detrimental to the co-op. The supervisory committee shall fill vacancies in its own membership until the next annual election of the co-op.

Source: L. 2014: Entire article added, (HB 14-1398), ch. 353, p. 1634, § 1, effective June 6.

11-33-116. Capital - no full faith and credit.

  1. The capital of a cannabis credit co-op consists of the payments that have been made to it in shares by its members. The co-op has a lien on the shares and deposits of a member for any sum due to the co-op from a member or for any loan endorsed by a member. A co-op may charge an entrance fee and an annual membership fee, but the fees must be uniform to all members.
  2. The deposits with and capital of a co-op are not backed by the full faith and credit of the state of Colorado.

Source: L. 2014: Entire article added, (HB 14-1398), ch. 353, p. 1635, § 1, effective June 6.

11-33-117. Loans.

A cannabis credit co-op may make loans to members subject to this article and the bylaws of the co-op. A borrower may repay a loan in whole or in part any day the office of the co-op is open for business.

Source: L. 2014: Entire article added, (HB 14-1398), ch. 353, p. 1635, § 1, effective June 6.

11-33-118. Reserves.

The commissioner may require reserves to protect the interest of members by general rules. In addition, the commissioner may require special reserves by an order directed to an individual cannabis credit co-op in a special case.

Source: L. 2014: Entire article added, (HB 14-1398), ch. 353, p. 1635, § 1, effective June 6.

11-33-119. Confidentiality.

  1. Neither the commissioner, the commissioner's deputy, nor any other person appointed by the commissioner shall divulge any information acquired in the discharge of the person's duties; except that:
    1. A person specified in the introductory portion to this subsection (1) may divulge information acquired in the discharge of the person's duties if doing so is made necessary by law or under order of court in an action involving the division or in criminal actions;
    2. The commissioner may furnish information as to the condition of a cannabis credit co-op to a liquidating agent appointed by the commissioner, a federal reserve bank, the division of banking, the executive director of the department of regulatory agencies, or a department or division of any other state having supervisory authority over marijuana financial services cooperatives or analogous organizations and may accept any report of examination made on behalf of the liquidating agent, bank, department, or division;
    3. The commissioner may give records or information in the commissioner's possession to a licensing agency within the department of regulatory agencies or the department of revenue relating to possible misconduct by a person or entity licensed by the agency;
      1. The commissioner and the commissioner's designees may exchange information obtained by the division as to possible criminal violations of any law relating to the activities of a co-op with the appropriate law enforcement agencies; and
      2. The commissioner or the commissioner's designees shall exchange information obtained by the division with the appropriate state law enforcement agencies as to criminal violations of any law relating to the activities of a co-op that the commissioner reasonably believes have occurred; and
    4. Notwithstanding any provision of this article to the contrary, the commissioner may disclose information in the records of the division or acquired by the commissioner in the discharge of the commissioner's duties the disclosure of which has been specifically authorized by the board of directors of the co-op to which the information relates. Nothing in this section authorizes the board of directors of a co-op to waive any privileges that belong solely to the commissioner, the division, or its employees.

Source: L. 2014: Entire article added, (HB 14-1398), ch. 353, p. 1635, § 1, effective June 6.

11-33-120. Dividends.

At intervals and for periods of time that the board of directors may authorize and after provision for the required reserves, the board of directors of a cannabis credit co-op may declare a dividend. Dividends may be paid at various rates on different classes of shares, and dividend credit may be accrued on different classes of shares, as determined by the board of directors. The board shall not pay dividends in excess of available earnings.

Source: L. 2014: Entire article added, (HB 14-1398), ch. 353, p. 1636, § 1, effective June 6.

11-33-121. Expulsion or withdrawal of members.

  1. A member may withdraw from a cannabis credit co-op at any time, but the bylaws may require advance notice of the withdrawal. The board of directors may expel a member from membership in a co-op if the member fails to comply with the written rules and policies of the co-op as adopted and made available to the membership.
  2. The board shall not expel a member until the board informs the member in writing of the reasons for the expulsion and the member has had reasonable opportunity to be heard.
  3. The co-op shall pay to an expelled or withdrawing member all amounts paid on shares or as deposits of the member, together with any dividends or interest accredited to the member, to the date of the withdrawal or expulsion, as funds become available and after deducting all amounts due from the member to the co-op. The co-op may require sixty days' written notice of intention to withdraw shares and thirty days' written notice of intention to withdraw deposits. Withdrawing or expelled members have no further rights in the co-op but are not, by such expulsion or withdrawal, released from any remaining liability to the co-op.

Source: L. 2014: Entire article added, (HB 14-1398), ch. 353, p. 1636, § 1, effective June 6.

11-33-122. Suspension - liquidation - procedures.

      1. If it appears that a cannabis credit co-op is insolvent, has willfully violated a provision of this article, or is operating in an unsafe or unsound manner, the commissioner: (1) (a) (I) If it appears that a cannabis credit co-op is insolvent, has willfully violated a provision of this article, or is operating in an unsafe or unsound manner, the commissioner:
        1. May issue an order for the co-op to show cause why its operations should not be suspended until the insolvency, violation, or manner of operation is rectified; and
        2. Shall afford the co-op an opportunity for a hearing not less than ten days nor more than twenty days after issuance of the order.
      2. The order must be in writing and be delivered by registered or certified mail.
      3. If the co-op fails to answer the order or if an officer or director of or attorney for the co-op fails to appear at the time set for the hearing, the commissioner may:
        1. Revoke the articles of incorporation of the co-op, order the immediate suspension of operations of the co-op except the collection of payments on outstanding loans or other obligations due the co-op, or both; and
        2. Enforce the order by an action filed in the district court of the judicial district in which the principal office of the co-op is located, seeking to enjoin further operations or to appoint a conservator for the co-op.
      1. A co-op to which an order to show cause has been issued pursuant to paragraph (a) of this subsection (1) may:
      2. A co-op may request a stay of execution of an order of the commissioner revoking its articles of incorporation or suspending its operations by filing an action in the district court for the judicial district in which the principal office of the co-op is located within ten days after the issuance of the order.

      (A) Include with its answer or present at a hearing resulting from the order its proposed plan to continue operations and rectify the insolvency, violation, or manner of operation specified in the order; or

      (B) Request that it be dissolved and liquidated and that the commissioner appoint a liquidating agent.

    1. If the commissioner revokes the charter of a co-op, the commissioner shall appoint a liquidating agent to liquidate the assets of the co-op pursuant to subsection (5) of this section.
    2. If in the opinion of the commissioner an emergency exists that may result in serious losses to the members, the commissioner may revoke the charter of a co-op and immediately appoint a liquidating agent without notice or a hearing. The commissioner shall post notice of the commissioner's emergency determination on the premises of the co-op that is the subject of the determination. Within ten days after an emergency determination by the commissioner, the co-op or the board of directors of the co-op may file an appeal with the court of appeals. The filing of an appeal to rescind a determination does not stay the commissioner's action pursuant to this subsection (1). If the court finds the commissioner's action was unauthorized, the commissioner shall rescind the action and restore the co-op to its board of directors. If the co-op does not file an appeal within ten days after the commissioner's emergency determination, all action taken by the commissioner is final.
    1. The commissioner may appoint himself or herself or a third party as conservator of a co-op and immediately take possession and control of the business and assets of the co-op if the commissioner determines that:
      1. Such action is necessary to conserve the assets of the co-op or to protect the interests of its members from acts or omissions of the existing management;
      2. The co-op, by a resolution of its board of directors, consents to such action;
      3. There is a willful violation of a cease-and-desist order that results in the co-op being operated in an unsafe or unsound manner; or
      4. The co-op is significantly undercapitalized and has no reasonable prospect of becoming adequately capitalized.
    2. The commissioner may appoint a conservator and take immediate possession of the co-op without prior notice or a hearing; except that, within ten days after the conservator is appointed, the co-op may file an appeal with the court of appeals requesting the commissioner to rescind the commissioner's appointment of a conservator. The filing of an appeal does not stay the commissioner's action. If the court finds the commissioner's action was unauthorized, the commissioner shall restore control of the co-op to its board of directors. If no appeal is filed within ten days after the commissioner's appointment of a conservator, the action taken by the commissioner becomes final.
    3. In extraordinary circumstances, upon order of the commissioner, a hearing conducted pursuant to this subsection (2) is exempt from any provision of law requiring that proceedings of the commissioner be conducted publicly. Extraordinary circumstances occur when specific concern arises about prompt withdrawal of moneys from the co-op.
    4. The conservator has all the powers of the members, directors, officers, and committees of the co-op and is authorized to operate the co-op in its own name or to conserve its assets as directed by the commissioner. The conservator shall conduct the business of the co-op and make regular reports to the commissioner until the commissioner has determined that the purposes of conservatorship have been accomplished and the co-op should be returned to the control of its board of directors. All costs incident to the conservatorship shall be paid out of the assets of the co-op. If the commissioner determines that the purposes of the conservatorship will not be accomplished, the commissioner may proceed with the involuntary liquidation of the co-op in the manner described in subsection (1) of this section.
    5. If a conservator is appointed, and is other than an employee of the division, the conservator and any assistants shall provide a bond, payable to the co-op and executed by a surety company authorized to do business in this state, that meets with the approval of the commissioner, for the faithful discharge of their duties in connection with the conservatorship and the accounting for all moneys coming into their hands. The cost of the bond shall be paid from the assets of the co-op. Suit may be maintained on the bond by a person injured by a breach of the conditions of the bond. This requirement may be deemed met if the commissioner determines that the co-op's fidelity bond covers the conservator and any assistants.
  1. A co-op may be voluntarily dissolved and liquidated upon majority vote of the entire membership of the co-op at a meeting specially called for the purpose or at the annual meeting where notice of the proposed action is mailed to the members at least thirty days before the meeting. In either event, a copy of the notice shall be delivered to the commissioner not less than ten days before the meeting. A member of a co-op may cast a ballot for or against the dissolution and liquidation by mail within twenty days after the meeting. If a majority of the members vote in favor of dissolution and liquidation, the board of directors, within five days after the close of voting, shall notify the commissioner of the action and specify the names and addresses of the directors and officers of the co-op who will conduct the dissolution and liquidation of the co-op. Upon a favorable vote, the co-op shall cease to do business except for the collection of payments on outstanding loans or other obligations due the co-op.
  2. Under any procedure to dissolve and liquidate a co-op pursuant to this section, the co-op continues in existence for the purpose of discharging its debts, collecting and distributing its assets, and doing all acts required in order to wind up its business, and it may sue and be sued for the enforcement of its debts and operations until its affairs are fully adjusted in liquidation. The assets of the co-op shall be used to pay: First, the expenses incidental to liquidation; and second, deposit accounts. Any remaining assets shall be distributed to the members proportionately to the shares held by each member as of the date of dissolution.
  3. Upon the liquidation and distribution of all assets of the co-op that may be reasonably expected to be collectible, the board of directors or the liquidating agent, as the case may be, shall execute in duplicate a certificate of dissolution, prescribed by the commissioner, upon which date the co-op ceases to exist, and file the certificate with the secretary of state.

Source: L. 2014: Entire article added, (HB 14-1398), ch. 353, p. 1637, § 1, effective June 6.

11-33-123. Change in place of business.

A cannabis credit co-op may change its place of business to a location outside of the county or city and county in which it was previously located upon receiving written permission from the commissioner. A co-op may change its place of business within the county or city and county in which it was previously located by providing written notice of the new address and the effective date of the change to the commissioner.

Source: L. 2014: Entire article added, (HB 14-1398), ch. 353, p. 1640, § 1, effective June 6.

11-33-124. Merger.

  1. The method of merger of two or more cannabis credit co-ops is as follows:
      1. The board of directors of each merging co-op shall:
        1. Approve a plan for the proposed merger; and
        2. Authorize representatives of each co-op to act on each co-op's behalf to bring about the merger.
      2. The plan must include information that the commissioner deems appropriate.
    1. Upon approval of the merger plan by each board of directors for each co-op involved in the transaction, the co-ops shall submit the merger plan, together with the resolutions of each board of directors, to the commissioner. If the commissioner determines that the merger plan complies with this article and any applicable rules, the commissioner may approve the merger plan, subject to such other specific requirements as may be prescribed to fulfill the intended purposes of the proposed merger.
    2. The boards of directors of each co-op involved shall call a meeting of the members of each co-op involved for the purpose of considering a merger. The boards of directors shall give notice of the meeting, including purpose, date, time, place, and ballot of the merger plan, to the entire membership. At the meeting, at least two-thirds of the members present and voting must approve the proposed merger. If any member approves or disapproves the merger by returning a ballot, signed by the member, to the secretary of the co-op at or before the meeting, the ballot for all purposes of this section is equivalent to the vote of the member at the meeting, notwithstanding that the member is not then present.
  2. Upon approval of the merger by the members of the co-op, the merger shall be consummated in the following manner:
    1. The duly authorized representatives of each co-op shall execute, in duplicate, a certificate of merger stating:
      1. That the board of directors of each co-op has approved the merger;
      2. That at least two-thirds of the voting members of each merging co-op have approved the terms and conditions of the proposed merger at a meeting of the members called for that purpose; and
      3. The name and location of the continuing co-op.
    2. The continuing co-op shall prepare and adopt any bylaw amendments required by the board, consistent with this article, and execute the amendments in duplicate.
    3. The continuing board of directors shall file the certificate provided for in paragraph (a) of this subsection (2) and any required bylaw amendments, both executed in duplicate, to the commissioner.
  3. If the commissioner approves the certificate and bylaw amendments, the commissioner shall so notify the representatives and shall issue a certificate of approval, attach it to the duplicate certificate of merger, and return them to the representatives of the participating co-ops together with the duplicate of the bylaw amendments.
  4. The continuing co-op shall file the duplicate of the certificate of merger with the commissioner's certificate of approval attached with the secretary of state, who shall make a record of the certificate and return it, with the secretary's certificate of record attached, to the commissioner for permanent record. The fee for the filing shall be determined and collected pursuant to section 24-21-104 (3), C.R.S.
  5. Upon compliance with all requirements of subsections (1) to (4) of this section, the participating co-ops are merged, and the continuing co-op shall take over the assets and assume all the liabilities of the participating co-ops.

Source: L. 2014: Entire article added, (HB 14-1398), ch. 353, p. 1640, § 1, effective June 6.

11-33-125. Taxation.

A cannabis credit co-op is not tax-exempt and is subject to taxation as provided by federal, state, and local laws.

Source: L. 2014: Entire article added, (HB 14-1398), ch. 353, p. 1642, § 1, effective June 6.

11-33-126. Compliance with federal requirements - due diligence.

  1. Each cannabis credit co-op shall comply with all applicable requirements of federal law, including:
    1. The federal "Bank Secrecy Act", 12 U.S.C. sec. 1951 et seq.;
    2. The requirement to maintain a due diligence program pursuant to 31 CFR 1020.610;
    3. The requirement to establish a customer identification policy pursuant to 31 CFR 1020.220; and
    4. The requirement to file suspicious activity reports pursuant to 31 CFR sec. 1020.320.
  2. Each co-op shall:
    1. Conduct due diligence with regard to the activities of its members so as to prevent:
      1. The distribution of marijuana to minors;
      2. Revenue from the sale of marijuana from going to criminal enterprises, gangs, and cartels;
      3. The diversion of marijuana from states where it is legal under state law in some form to other states;
      4. State-authorized marijuana activity from being used as a cover or pretext for the trafficking of other illegal drugs or other illegal activity;
      5. Violence and the use of firearms in the cultivation and distribution of marijuana;
      6. Drugged driving and the exacerbation of other adverse public health consequences associated with marijuana use;
      7. The growing of marijuana on public lands and the attendant public safety and environmental dangers posed by marijuana production on public lands; and
      8. Marijuana possession or use on federal property; and
    2. File an annual report with the commissioner regarding its compliance with the laws and requirements specified in this section.
  3. The commissioner shall revoke the charter of a co-op that violates any of the laws or due diligence requirements specified in this section.

Source: L. 2014: Entire article added, (HB 14-1398), ch. 353, p. 1642, § 1, effective June 6.

11-33-127. Reports - suspicious transactions.

  1. General.
      1. Every co-op shall file with the commissioner, to the extent and in the manner required by this section, a report of any suspicious transaction relevant to a possible violation of law, rule, or federal regulation.
      2. For purposes of this section, a transaction or conduct that is illegal or a violation of law solely because marijuana is a controlled substance under federal law is not subject to being reported.
    1. A co-op shall report a transaction if it is conducted or attempted by, at, or through the co-op, it involves or aggregates at least five thousand dollars in funds or other assets, and the co-op knows, suspects, or has reason to suspect that:
      1. The transaction involves funds derived from illegal activities or is intended or conducted in order to hide or disguise funds or assets derived from illegal activities as part of a plan to violate or evade any federal or state law or regulation or to avoid any transaction reporting requirement under federal or state law or regulation;
      2. The transaction is designed to evade any requirements of this article, a rule promulgated pursuant to this article, the federal "Bank Secrecy Act", 12 U.S.C. sec. 1951 et seq., or a regulation promulgated under the federal "Bank Secrecy Act"; or
      3. The transaction has no business or apparent lawful purpose or is not the sort in which the particular member would normally be expected to engage, and the co-op knows of no reasonable explanation for the transaction after examining the available facts, including the background and possible purpose of the transaction.
  2. Filing procedures.
    1. What to file. A co-op shall report a suspicious transaction by completing a suspicious transaction report, referred to in this section as an STR, and collecting and maintaining supporting documentation as required by subsection (4) of this section.
    2. When to file. A co-op shall file an STR no later than thirty calendar days after the date of initial detection by the co-op of facts that may constitute a basis for filing an STR. If no suspect was identified on the date of the detection of the incident requiring the filing, a co-op may delay filing an STR for an additional thirty calendar days to identify a suspect. In no case may a co-op delay reporting for more than sixty calendar days after the date of initial detection of a reportable transaction. In situations involving violations that require immediate attention, such as, for example, ongoing money-laundering schemes, the co-op shall immediately notify, by telephone, an appropriate law enforcement authority in addition to filing timely an STR.
  3. Exceptions. A co-op is not required to file an STR for a robbery or burglary committed or attempted that is reported to appropriate law enforcement authorities or for lost, missing, counterfeit, or stolen securities with respect to which the co-op files a report pursuant to the reporting requirements of 17 CFR 240.17f-1.
  4. Retention of records. A co-op shall maintain a copy of each STR filed and the original or business record equivalent of any supporting documentation for a period of five years after the date of filing the STR. The co-op shall identify supporting documentation and maintain the documentation as such, which documentation shall be deemed to have been filed with the STR. Upon request, a co-op shall make all supporting documentation available to:
    1. The commissioner;
    2. Any federal, state, or local law enforcement agency;
    3. Any federal regulatory authority that examines the co-op for compliance with the federal "Bank Secrecy Act"; or
    4. Any state regulatory authority administering a state law that requires the co-op to comply with the federal "Bank Secrecy Act" or otherwise authorizes the state authority to ensure that the co-op complies with the federal "Bank Secrecy Act".
  5. Confidentiality of STRs.
    1. An STR and any information that would reveal the existence of an STR are confidential and shall not be disclosed except as authorized in this subsection (5). For purposes of this subsection (5) only, an STR includes any suspicious activity report filed with the federal financial enforcement network of the department of the treasury pursuant to any regulation in chapter X of subtitle B of title 31 of the code of federal regulations.
    2. Prohibition on disclosures by co-ops. (I) General rule. A co-op and a director, officer, employee, or agent of any co-op shall not disclose an STR or any information that would reveal the existence of an STR. Any co-op, and any director, officer, employee, or agent of any co-op that is subpoenaed or otherwise requested to disclose an STR or any information that would reveal the existence of an STR, shall decline to produce the STR or such information, citing this section, 31 U.S.C. sec. 5318 (g)(2)(A)(i), and 31 CFR 1020.320, and shall notify the commissioner of any such request and the response thereto.

      (II) Rules of construction. So long as none of the persons involved in a reported suspicious transaction is notified that the transaction has been reported, this paragraph (b) does not prohibit:

      1. To the full extent authorized in 31 U.S.C. sec. 5318 (g)(2)(B), the disclosure by a co-op or by a director, officer, employee, or agent of a co-op, of an STR or any information that would reveal the existence of an STR, to: The commissioner or any federal, state, or local law enforcement agency; a federal regulatory authority that examines the co-op for compliance with the federal "Bank Secrecy Act"; or a state regulatory authority administering a state law that requires the co-op to comply with the federal "Bank Secrecy Act" or otherwise authorizes the state authority to ensure that the co-op complies with the federal "Bank Secrecy Act". In addition, the co-op and its officers, directors, employees, and agents may disclose the underlying facts, transactions, and documents upon which an STR is based to another financial institution, or a director, officer, employee, or agent of a financial institution, for the preparation of a joint STR or in connection with certain employment references or termination notices, to the full extent authorized in 31 U.S.C. sec. 5318 (g)(2)(B).
      2. The sharing by a co-op, or any director, officer, employee, or agent of the co-op, of an STR, or any information that would reveal the existence of an STR, within the co-op's corporate organizational structure for purposes consistent with Title II of the federal "Bank Secrecy Act" as determined by federal regulation or in guidance.
    3. Prohibition on disclosures by government authorities. A federal, state, local, territorial, or tribal government authority and any director, officer, employee, or agent of a federal, state, local, territorial, or tribal government shall not disclose an STR, or any information that would reveal the existence of an STR, except as necessary to fulfill official duties consistent with Title II of the federal "Bank Secrecy Act". For purposes of this section, "official duties" do not include the disclosure of an STR, or any information that would reveal the existence of an STR, in response to a request for disclosure of nonpublic information or a request for use in a private legal proceeding, including a request pursuant to 31 CFR 1.11.
  6. Limitation on liability. A co-op and any director, officer, employee, or agent of any co-op, that makes a voluntary disclosure of any possible violation of law, rule, or federal regulation to a government agency or makes a disclosure pursuant to this section or any other authority, including a disclosure made jointly with another institution, is protected from liability to any person for any such disclosure or for failure to provide notice of such disclosure to any person identified in the disclosure, or both, to the full extent provided by 31 U.S.C. sec. 5318 (g)(3).
  7. Compliance. The commissioner shall examine co-ops for compliance with this section.

Source: L. 2014: Entire article added, (HB 14-1398), ch. 353, p. 1643, § 1, effective June 6.

11-33-128. Repeal of article - review.

  1. This article is repealed, effective September 1, 2020. Upon repeal of this article, each cannabis credit co-op shall immediately cease its operation and take prudent and necessary steps to dissolve. Each co-op shall complete its dissolution by September 1, 2021.
  2. Prior to the repeal of this article, the department of regulatory agencies shall conduct a sunset review of the commissioner's regulation of cannabis credit co-ops as described in section 24-34-104 (5), C.R.S.

Source: L. 2014: Entire article added, (HB 14-1398), ch. 353, p. 1645, § 1, effective June 6. L. 2016: (2) amended, (HB 16-1192), ch. 83, p. 232, § 6, effective April 14.

MISCELLANEOUS

ARTICLE 35 SURETY BOND ALTERNATIVES

Section

11-35-101. Alternatives to surety bonds permitted - requirements - definition.

  1. The requirement of a surety bond as a condition to licensure or authority to conduct business or perform duties in this state provided in sections 5-16-124 (1), 6-16-104.6, 12-10-717, 23-64-121 (1), 33-4-101 (1), 33-12-104 (1), 35-55-104 (1), 37-91-107 (2) and (3), 38-29-119 (2), 39-21-105, 39-27-104 (2)(a), (2)(b), (2)(c), (2)(d), (2)(e), (2.1)(a), (2.1)(b), (2.1)(c), and (2.5)(b), 39-28-105 (1), 42-6-115 (3), 42-7-301 (6), 44-20-112, 44-20-113, 44-20-114, 44-20-412, and 44-20-413 may be satisfied by a savings account or deposit in or a certificate of deposit issued by a state or national bank doing business in this state or by a savings account or deposit in or a certificate of deposit issued by a state or federal savings and loan association doing business in this state. The savings account, deposit, or certificate of deposit must be in the amount specified by statute, if any, and must be assigned to the appropriate state agency for the use of the people of the state of Colorado. The aggregate liability of the bank or savings and loan association must in no event exceed the amount of the deposit. For the purposes of the sections referred to in this section, "bond" includes the savings account, deposit, or certificate of deposit authorized by this section.
  2. Each appropriate state agency required to accept such bonds, savings accounts, deposits, or certificates of deposit shall promulgate rules and regulations defining the method of assignment, required period of liability, and such other procedures as may be necessary.
  3. All rules adopted or amended by state agencies pursuant to subsection (2) of this section are subject to section 24-4-103 (8)(c) and (8)(d), C.R.S., and section 24-4-108 or 24-34-104 (6)(b), C.R.S.

Source: L. 79: Entire article added, p. 419, § 1, effective July 1. L. 80: (1) and (3) amended, pp. 786, 791, §§ 15, 36, effective June 5. L. 81: (1) amended, p. 617, § 2, effective April 30; (3) amended, p. 1177, § 2, effective July 1. L. 82: (1) amended, p. 621, § 8, effective April 2. L. 83: (1) amended, p. 1292, § 1, effective April 21; (1) amended, p. 701, § 4, effective June 10. L. 84: (1) amended, p. 409, § 2, effective March 5; (1) amended, p. 1007, § 2, effective March 26; (1) amended, p. 920, § 6, effective January 1, 1985. L. 85: (1) amended, p. 437, § 2, effective July 1. L. 87: (1) amended, p. 473, § 5, effective July 1. L. 89: (1) amended, p. 1394, § 2, effective April 12. L. 90: (1) amended, p. 1681, § 5, effective October 1. L. 92: (1) amended, p. 2168, § 8, effective June 2; (1) amended, p. 1863, § 28, effective July 1. L. 93: (1) amended, p. 1773, § 27, effective June 6; (1) amended, p. 260, § 5, effective July 1; (1) amended, p. 1236, § 4, effective July 1; (1) amended, p. 1391, § 10, effective January 1, 1995. L. 94: (1) amended, p. 1630, § 32, effective May 31; (1) amended, p. 2545, § 20, effective January 1, 1995. L. 95: (1) amended, p. 1091, § 2, effective May 31; (1) amended, p. 1332, § 3, effective July 1. L. 2000: (1) amended, p. 1937, § 16, effective October 1; (1) amended, p. 3, § 3, effective July 1, 2001. L. 2001: (1) amended, p. 1214, § 43, effective January 1, 2002. L. 2003: (1) amended, p. 1340, § 2, effective April 22. L. 2006: (1) amended, p. 1587, § 2, effective July 1. L. 2007: (1) amended, p. 1850, § 3, effective July 1. L. 2009: (1) amended, (SB 09-117), ch. 123, p. 527, § 21, effective April 16; (1) amended, (SB 09-151), ch. 89, p. 346, § 3, effective July 1. L. 2016: (3) amended, (HB 16-1192), ch. 83, p. 232, § 7, effective April 14; (1) amended, (HB 16-1129), ch. 262, p. 1078, § 5, effective August 10; (1) amended, (SB 16-036), ch. 292, p. 1181, § 2, effective August 10. L. 2017: (1) amended, (SB 17-294), ch. 264, p. 1386, § 11, effective May 25; (1) amended, (HB 17-1238), ch. 260, p. 1172, § 16, effective August 9; (1) amended, (HB 17-1239), ch. 261, p. 1202, § 2, effective August 9. L. 2018: (1) amended, (SB 18-030), ch. 7, p. 138, § 6, effective October 1. L. 2019: (1) amended, (SB 19-241), ch. 390, p. 3463, § 5, effective August 2; (1) amended, (HB 19-1172), ch. 136, p. 1658, § 57, effective October 1.

Editor's note:

  1. Amendments to subsection (1) by House Bill 83-1133 and Senate Bill 83-165 were harmonized.
  2. Amendments to subsection (1) by Senate Bill 84-87 were harmonized with House Bill 84-1063 and Senate Bill 84-78 effective January 1, 1985.
  3. Amendments to subsection (1) by House Bill 92-1359 and Senate Bill 92-88 were harmonized.
  4. Amendments to subsection (1) by House Bill 93-1254 were harmonized with House Bill 93-1268, House Bill 93-1270, and House Bill 93-1342.
  5. Amendments to subsection (1) by Senate Bill 94-1 and Senate Bill 94-206 were harmonized.
  6. Amendments to subsection (1) by House Bill 95-1011 and House Bill 95-1212 were harmonized.
  7. Amendments to subsection (1) by House Bill 00-1155 and House Bill 00-1479 are harmonized effective July 1, 2001.
  8. Amendments to subsection (1) by SB 09-151 and SB 09-117 were harmonized.
  9. Amendments to subsection (1) by HB 16-1129 and SB 16-036 were harmonized.
  10. Amendments to subsection (1) by SB 17-294 were harmonized with HB 17-1238 and HB 17-1239.
  11. Amendments to subsection (1) by HB 19-1172 and SB 19-241 were harmonized.

ANNOTATION

The general assembly did not intend that the amount of funds available for reimbursement should vary depending on whether the security was in the form of a bond or cash alternative. Western Surety Co. v. Smith, 914 P.2d 451 (Colo. App. 1995).

11-35-101.5. Irrevocable letter of credit permitted - requirements.

  1. Where there is the requirement of either an irrevocable letter of credit or a bond as a condition to licensure in sections 35-36-119 (1) and 35-37-106 (1) or where an irrevocable letter of credit is permitted as an alternative to a surety bond, evidence of a savings account, deposit, or certificate of deposit meeting the requirements of section 11-35-101, as a condition to licensure or authority to conduct business or perform duties in this state, provided in sections 33-4-101 (1), 33-12-104 (1), 35-36-119 (1)(a), 35-37-105 (5), 35-37-106 (1)(a), 37-91-107 (2), and 39-27-104 (2.1)(c), the requirement shall be satisfied by an irrevocable letter of credit issued by a state or national bank or a state or federal savings and loan association doing business in this state. The requirement shall also be satisfied by an irrevocable letter of credit issued by the bank or banks for cooperatives that are organized pursuant to federal statutes and that serve the region in which the state of Colorado is located. Such letter of credit shall be in an amount specified by statute, if any, and shall name the appropriate state agency as beneficiary, in favor of the people of the state of Colorado.
  2. Each appropriate state agency required to accept such irrevocable letters of credit shall define the method of transferability, the required period of liability, and such other procedures as may be necessary.
  3. Repealed.

Source: L. 87: Entire section added, p. 473, § 6, effective May 8. L. 88: (1) amended, p. 446, § 1, effective March 31. L. 89: (1) amended, p. 1394, § 3, effective April 12. L. 92: (1) amended, p. 2168, § 9, effective June 2. L. 93: (1) amended, p. 1391, § 11, effective January 1, 1995. L. 94: (1) amended, p. 1630, § 33, effective May 31; (1) amended, p. 2545, § 34, effective January 1, 1995. L. 2000: (1) amended, p. 1937, § 17, effective October 1. L. 2002: (1) amended, p. 1013, § 9, effective June 1. L. 2009: (1) amended, (SB 09-151), ch. 89, p. 347, § 4, effective July 1. L. 2013: (3) repealed, (HB 13-1034), ch. 5, p. 15, § 9, effective September 1. L. 2017: (1) amended, (SB 17-225), ch. 262, p. 1245, § 3, effective August 9.

ARTICLE 36 SMALL BUSINESS DEVELOPMENT CREDIT CORPORATIONS

11-36-101 to 11-36-118. (Repealed)

Editor's note:

  1. This article was added in 1988. For amendments to this article prior to its repeal in 1994, consult the Colorado statutory research explanatory note and the table itemizing the replacement volumes and supplements to the original volume of C.R.S. 1973 beginning on page vii in the front of this volume.
  2. Section 11-36-117 provided for the repeal of this article, effective July 1, 1994. (See L. 94, p. 66 .)

ARTICLE 37 COLORADO INVESTMENT DEPOSITS

11-37-101 to 11-37-105. (Repealed)

Source: L. 2004: Entire article repealed, p. 323, § 7, effective April 7.

Editor's note: This article was added in 1990 and was not amended prior to its repeal in 2004. For the text of this article prior to 2004, consult the 2003 Colorado Revised Statutes.

ARTICLE 37.5 FOREIGN CAPITAL DEPOSITORIES

11-37.5-101 to 11-37.5-503. (Repealed)

Source: L. 2009: Entire article repealed, (HB 09-1053), ch. 159, p. 687, § 1, effective August 5.

Editor's note: This article was added in 1999. For amendments to this article prior to its repeal in 2009, consult the Colorado statutory research explanatory note beginning on page vii in the front of this volume.

ARTICLE 38 REVERSE MORTGAGES

Section

11-38-101. Legislative declaration.

  1. The general assembly hereby finds that Colorado's elderly homeowners should have the opportunity and be permitted to meet their financial needs by accessing the equity in their homes through a reverse mortgage loan transaction.
  2. The general assembly further finds that many restrictions and requirements that exist to govern traditional mortgage loan transactions in Colorado are inapplicable in the context of reverse mortgages and that state law should be clarified to ensure that inapplicability.
  3. The general assembly therefore declares that, in order to foster reverse mortgage transactions and better serve the elderly citizens of this state, it is necessary to enact this article authorizing the making of reverse mortgages and expressly relieving reverse mortgage lenders and borrowers from compliance with inappropriate statutory requirements.

Source: L. 92: Entire article added, p. 939, § 1, effective April 23.

11-38-102. Definitions.

As used in this article, unless the context otherwise requires:

  1. "Borrower" means the person receiving cash advances pursuant to the terms of and obligated for repayment of a reverse mortgage. "Person" includes plural as well as singular.
  2. "Independent counseling" means counseling by a person unaffiliated with the lender, including but not limited to a housing counseling agency approved by the United States department of housing and urban development.
  3. "Lender" means a bank, savings and loan association, or credit union organized under the laws of the United States or the state of Colorado or a person who regularly makes loans or advances secured by interests in residential real property.
  4. "Reverse mortgage" means a written instrument evidencing or creating a nonrecourse loan secured by real property which:
    1. Provides cash advances, whether in the form of a lump sum, periodic payments, a line of credit, or other similar methods, or a combination thereof, to a borrower based on the equity in the borrower's owner-occupied principal residence, which periodic payments may be derived from an annuity purchased with such cash advances;
    2. Requires no partial or other payment of principal or interest until the entire loan becomes due and payable; and
    3. Is made by any lender as defined in subsection (3) of this section.

Source: L. 92: Entire article added, p. 939, § 1, effective April 23.

11-38-103. Prepayment.

Payment of a reverse mortgage, in whole or in part, shall be permitted without penalty at any time during the period of such reverse mortgage.

Source: L. 92: Entire article added, p. 940, § 1, effective April 23.

11-38-104. Intervening liens.

All advances made under a reverse mortgage and all interest on such advances shall have priority over any lien arising after recording an instrument evidencing the lien arising from such reverse mortgage with the clerk and recorder of the county where the real property securing such reverse mortgage is located.

Source: L. 92: Entire article added, p. 940, § 1, effective April 23.

11-38-105. Interest - periodic advances.

  1. A reverse mortgage may provide for an interest rate which is fixed or adjustable and may also provide for interest that is contingent on the appreciation in the value of the home securing such reverse mortgage.
  2. If a reverse mortgage provides for periodic advances to a borrower, such advances shall not be reduced in amount or number based on any adjustment in the interest rate on such reverse mortgage.
  3. The interest rate contracted for in any reverse mortgage shall not exceed the loan finance charge rates provided by section 5-2-201, C.R.S., although the effective rate may exceed those rates. Such interest rate shall be calculated on the assumption that the reverse mortgage will be repaid according to the agreed terms and will not be repaid before the end of the agreed term.

Source: L. 92: Entire article added, p. 940, § 1, effective April 23. L. 2000: (3) amended, p. 1872, § 106, effective August 2.

11-38-106. Lender default.

Any lender failing to make loan advances as required by the terms of the reverse mortgage, and failing to cure such a default as required by such terms, shall forfeit the right to collect any interest on such reverse mortgage and shall be liable for any civil damages arising from such default. This section shall not apply if the default is by an insurance company which is not owned or controlled directly or indirectly by the lender and the default by the insurance company is pursuant to an annuity purchased by a borrower with reverse mortgage loan advances.

Source: L. 92: Entire article added, p. 941, § 1, effective April 23.

11-38-107. Repayment.

  1. A reverse mortgage may become due and payable upon the occurrence of any one of the following events:
    1. The home securing the reverse mortgage is sold.
    2. The borrower ceases to occupy the home as a principal residence.
    3. Any fixed maturity date agreed to by the lender and the borrower is reached.
    4. An event occurs which is specified in the terms of the reverse mortgage and which jeopardizes the lender's security.
    5. Upon death of the borrower.
  2. The repayment requirement described in subsection (1) of this section is also expressly subject to the following additional conditions:
    1. Temporary absences from the home not exceeding sixty consecutive days shall not cause the reverse mortgage to become due and payable.
    2. Temporary absences from the home exceeding sixty consecutive days but not exceeding one year shall not cause the reverse mortgage to become due and payable so long as the borrower has taken prior action which secures the home in a manner satisfactory to the lender.
    3. The lender's right to collect reverse mortgage proceeds shall be subject to the applicable statute of limitations for loan contracts pursuant to section 13-80-103.5, C.R.S.; except that the statute of limitations shall commence on the date that the reverse mortgage becomes due and payable.
    4. Prior to the closing of a reverse mortgage, the lender must prominently disclose any interest or other fees to be charged during the period that commences on the date that the reverse mortgage becomes due and payable and ends when repayment in full is made.

Source: L. 92: Entire article added, p. 941, § 1, effective April 23.

11-38-108. Inapplicability of related statutes.

  1. A reverse mortgage may be made or acquired without regard to the following provisions for other types of mortgage transactions set out in the statutes specified in this subsection (1):
    1. Any law of this state limiting loan-to-value ratios;
    2. Prohibitions on balloon payments pursuant to section 5-3-208, C.R.S.;
    3. Any law of this state limiting interest on interest, the adding of deferred interest to principal, or the compounding of interest;
    4. Subject to section 11-38-105 (3), interest rate limits under the usury statutes pursuant to sections 5-12-103 and 18-15-104, C.R.S.;
    5. Any law of this state applicable to insurance or insurance companies under title 10, C.R.S.

Source: L. 92: Entire article added, p. 942, § 1, effective April 23. L. 2000: (1)(b) amended, p. 1872, § 107, effective August 2.

11-38-109. Disclosure - total loan cost.

  1. Any lender making reverse mortgage loans shall provide to a borrower prior to closing on such a loan a written statement of the projected total loan cost rate for all reverse mortgage loans except for reverse mortgage loans subject to federal "Truth in Lending Act", as amended, total annual loan cost disclosure requirements. As used in this section, "total loan cost rate" means the total of all loan costs including, but not limited to, any origination fee, closing costs, servicing fee, insurance premium contingent interest based on appreciation, and the annual interest rate charged on the reverse mortgage balance which is expressed as a single annual average rate of interest. Such statement shall include:
    1. An explanation of why the total loan cost rate on reverse mortgages is greatest in the early years of the loan and decreases over the term of the loan; and
    2. A chart or table containing projections of the total loan cost rate at certain anniversary dates during the term of the loan, beginning at the end of year two and thereafter not more than every four years from the date of the loan to year thirty and utilizing not less than three annual average home appreciation percentages from between zero and ten percent.

Source: L. 92: Entire article added, p. 942, § 1, effective April 23. L. 96: IP(1) amended, p. 1561, § 14, effective July 1.

Cross references: For the "Truth in Lending Act", see 15 U.S.C. sec. 1601 et seq.

11-38-110. Treatment of reverse mortgage loan proceeds by public benefit programs.

  1. Reverse mortgage loan payments made to a borrower shall be treated as proceeds from a loan and not as income for the purpose of determining eligibility and benefits under means-tested programs of aid to individuals.
  2. Undisbursed funds under a reverse mortgage shall be treated as equity in a borrower's home and not as proceeds from a loan for the purpose of determining eligibility and benefits under means-tested programs of aid to individuals.
  3. This section shall apply to any law relating to means-tested programs of aid provided by this state, including but not limited to supplemental security income, low-income energy assistance, and the "Colorado Medical Assistance Act", articles 4, 5, and 6 of title 25.5, C.R.S.

Source: L. 92: Entire article added, p. 943, § 1, effective April 23. L. 2006: (3) amended, p. 2000, § 40, effective July 1.

11-38-111. Consumer information and counseling.

No reverse mortgage shall be made by a lender unless the loan applicant attests, in writing, that the applicant has been advised by the lender to obtain independent counseling regarding the advisability of such applicant's entering into a reverse mortgage transaction and that such applicant has either obtained such counseling or waived such counseling in writing.

Source: L. 92: Entire article added, p. 943, § 1, effective April 23.

11-38-112. Application of article.

This article shall apply to all reverse mortgages entered into on and after July 1, 1992, and shall not invalidate any reverse mortgage entered into prior to July 1, 1992.

Source: L. 92: Entire article added, p. 943, § 1, effective April 23.

SAVINGS AND LOAN ASSOCIATIONS

ARTICLE 40 SAVINGS AND LOAN ASSOCIATION LAW

Cross references: For the "Unclaimed Property Act", see article 13 of title 38.

Law reviews: For article, "Arbitrating Lender Liability Claims", see 18 Colo. Law. 879 (1989).

Section

11-40-101. Short title.

Articles 40 to 46 of this title shall be known and may be cited as the "Savings and Loan Association Law".

Source: L. 33: p. 284, § 1. CSA: C. 25, § 1. L. 51: p. 212, § 1. CRS 53: § 122-1-1. C.R.S. 1963: § 122-1-1.

Cross references: For additional provisions relating to savings and loan associations, see articles 47 and 48 of this title.

11-40-102. Definitions.

As used in articles 40 to 46 of this title, unless the context otherwise requires:

  1. "Branch" means any office or other place of business in this state operated by an association other than its principal office in this state where subscriptions are sold, taken, or solicited for shares or stock.
  2. "Certificate value" means the aggregate of payments by a certificate holder on shares evidenced by such certificate, plus dividends credited thereto, less withdrawals thereon.
  3. "Commissioner" means the state commissioner of financial services.
  4. "Division" means the division of financial services.
  5. "Domestic savings and loan association" is one organized under the laws of Colorado and complying with the provisions thereof.
  6. "Dues" means the periodic payments made or to be made by a member in the purchase of savings shares.
  7. "Federal savings and loan association" means one organized or chartered under the "Home Owners' Loan Act of 1933", as may from time to time be amended, or under any federal act which may be enacted as a successor act to regulate the organization and operation of associations formerly organized or chartered under said "Home Owners' Loan Act of 1933". Federal savings and loan associations shall not be subject to the provisions of articles 40 to 46 of this title.
  8. "Foreign savings and loan association" means an association or a holding company of an association which is organized under the laws of any other state or nation, except federal savings and loan associations which are organized under the "Home Owners' Loan Act of 1933", and any amendments thereto.
  9. "Free share" means a share not pledged to the association by which issued as collateral security for the repayment of a loan to the owning member.
  10. "Invested capital" means the aggregate of all certificate values, plus the aggregate par value of all permanent stock issued and paid for, if a permanent stock association.
  11. "Loan share" means a share which has been pledged to the association by which issued as collateral security for the repayment of a loan to the owning member.
  12. "Member" means any person owning or having control of an account with an association evidenced by certificate or passbook or any person borrowing from or assuming a loan held by an association or obligated upon a loan held by an association through purchase or otherwise, or a purchaser of property securing a loan held by an association, or a purchaser of property on a contract from an association.

    (12.5) "Net worth" includes the sum of all reserve accounts, undivided profits, permanent stock, preferred stock, and surplus, the principal amount of any subordinated debt securities, and any other account or item included as net worth by regulation of the commissioner or by any law, rule, regulation, order, or decision of the federal deposit insurance corporation or its successor or any other state or federal agency that is applicable to federal savings and loan associations.

  13. "Permanent stock" means stock which cannot be withdrawn or the value paid to the holder thereof until all liabilities of the association have been fully liquidated and paid.
  14. "Share" means a unit having a par value of one hundred dollars evidenced by issued certificate, the certificate value of which represents the proportionate interest of a holder in the association.
  15. "Shareholder" means the holder of shares which may be withdrawn upon due and proper notice in accordance with the bylaws or as the laws of the state may provide and the withdrawal or payment of which is not contingent upon the payment of all liabilities of the association.
  16. "Stockholder" means a holder of permanent stock.
  17. "Subordinated debt security" means any note, secured or otherwise, debenture, or other debt security issued by a savings and loan association which is subordinated or junior, on liquidation or otherwise, to any liability or claim of any order or rank, including all claims having the same priority as or a higher priority than savings account holders.
  18. "Tax and loan account" means an account, the balance of which is subject to the right of immediate withdrawal, established for receipt of payments of federal taxes and certain United States' obligations. Tax and loan accounts are not shares, savings or share accounts, savings deposits, or deposit accounts.

Source: L. 33: p. 285, § 3. CSA: C. 25, § 3. L. 39: pp. 237, 238, §§ 1-4. CRS 53: § 122-1-3. L. 55: p. 756, § 1. C.R.S. 1963: § 122-1-3. L. 69: p. 1013, § 2. L. 77: (12.5) and (17) added, p. 569, § 1, effective July 1. L. 79: (18) added, p. 430, § 1, effective June 19. L. 88: (8) amended, p. 461, § 5, effective July 1. L. 89: (3) and (4) amended, p. 618, § 7, effective July 1. L. 2004: (12.5) amended, p. 148, § 53, effective July 1.

Cross references: For the "Home Owners' Loan Act of 1933", see Pub.L. 73-42, codified at 12 U.S.C. sec. 1461 et seq.

ANNOTATION

Law reviews. For article, "Foreign Savings and Loan Associations Not Doing Business in Colorado", see 16 Colo. Law. 43 (1987).

11-40-103. Savings and loan association defined.

A "savings and loan association", within the meaning of articles 40 to 46 of this title, is any domestic or foreign association or corporation formed, created, or organized to carry on the business of a savings and loan association, which is formed to encourage industry, thrift, home building, and saving among its members, by the accumulation of funds through the issuance and sale of its own shares, capital notes, or debentures, the acceptance of savings deposits, or any other manner permitted by the provisions of articles 40 to 46 of this title, the loaning or investment of the funds so accumulated to assist its members in acquiring real estate, in making improvements thereon, and in paying off existing encumbrances thereon, or for any other purposes or in any other manner permitted by the provisions of articles 40 to 46 of this title, and which accumulates funds to be returned to its members.

Source: L. 33: p. 284, § 2. CSA: C. 25, § 2. CRS 53: § 122-1-2. C.R.S. 1963: § 122-1-2. L. 69: p. 1013, § 1.

ANNOTATION

For a business with characteristics of a savings and loan association, see People ex rel. Griffith v. Standard Home Co., 59 Colo. 355, 148 P. 869 (1915).

11-40-104. Fiscal year - closing dates - net earnings.

  1. Each domestic savings and loan association shall have such fiscal year as may be fixed from time to time by resolution of its board of directors, but the fiscal years of all such associations shall be fixed so as to end as of the last day of a calendar month. Every domestic savings and loan association shall close its books at least once annually as of the close of business on the last day of its fiscal year and may close its books at such other time as may be fixed by resolution of its board of directors. Any reference in this section or elsewhere in articles 40 to 46 of this title to the closing date of an association means the date fixed for the closing of its books as provided in this section. The books and records of every association shall reflect all the accrued liabilities on the above dates.
  2. The net earnings of each period ending on a closing date fixed as provided in this section shall be determined by deducting from gross income of such periods operating and nonoperating expenses and dividends and interest paid to shareholders or depositors. Expenses shall include:
    1. Charges for estimated depreciation and obsolescence of home office building and furniture and fixtures, with contra credits to a depreciation reserve account;
    2. Charges for all losses actually sustained during such periods from the sale of securities, real estate, or other assets or such portion of such losses as have not been charged to reserves pursuant to the provisions of section 11-42-111.
  3. The remaining balance of gross income thus arrived at is the association's net income and shall be available for dividends on permanent stock or be credited to general reserve accounts or the undivided profits account in a manner as provided in section 11-42-111. Provision may be made for an undivided profits account not to exceed five percent of invested capital, unless an excess amount is approved by the commissioner.
  4. No income shall be considered as earned until collected; except that interest due and unpaid may be accrued for a period of not more than six months and considered as earnings.

Source: L. 33: p. 356, § 12. CSA: C. 25, § 80. CRS 53: § 122-1-4. L. 55: p. 756, § 2. C.R.S. 1963: § 122-1-4. L. 69: p. 1014, § 3. L. 73: p. 1236, §§ 1, 2.

11-40-105. File annual reports.

  1. On or before February 1 in each year, every association shall make an annual written report to the commissioner, in a form to be prescribed by the commissioner, of its affairs and operations for the twelve months ending on December 31 of the previous year.
  2. If any association fails to file such report or if any such report is delayed or withheld beyond the day when the report should be so filed, such association shall forfeit and pay the sum of ten dollars for every day such report is withheld or delayed or not completed, and any member of any association or any party in interest may maintain an action in his or her own name to receive such penalty, and the penalty shall be paid to the state treasurer.
    1. Every association, on or before the first day of the third calendar month after the end of its fiscal year, shall mail to each member or may, at its option, publish in a newspaper of general circulation a report in a form prescribed or approved by the commissioner of its financial condition, setting forth a statement of its assets, liabilities, and reserves in the form of a statement of condition.
    2. Paragraph (a) of this subsection (3) shall take effect July 1, 1973, and shall apply to loans or contracts for loans entered into on or after that date. Nothing in this subsection (3) shall be deemed to affect loans or contracts for loans entered into prior to July 1, 1973.

Source: L. 33: p. 355, § 11. CSA: C. 25, § 79. L. 39: p. 252, § 27. CRS 53: § 122-1-5. C.R.S. 1963: § 122-1-5. L. 67: p. 259, §§ 1, 2. L. 73: p. 1236, § 3. L. 2000: (1) and (2) amended, p. 155, § 2, effective August 2.

11-40-106. Annual fees and assessments - fund.

  1. Every domestic savings and loan association operating in this state shall pay to the division of financial services such fees for administration, supervision, and examination as the commissioner may determine sufficient to meet the budget of the division of financial services as appropriated by the general assembly for the fiscal year commencing July 1. The fees shall be determined as follows:
    1. At least semiannually, the commissioner shall assess each association, based on its total assets, to meet the costs of administration, examination, and supervision by the division for that fiscal year. Such assessments shall be calculated in terms of cents per thousand dollars of total assets but shall in no case exceed in total the costs of administration, examination, and supervision by the division for that fiscal year. The assessment calculation or ratio of the assessment charged to total assets shall be alike in all cases. On or before the dates specified by the commissioner, each association shall pay its assessment.
    2. As of July 1 of each year, the commissioner may estimate a per diem rate to be charged for the examination of each association during the fiscal year. At the conclusion of its examination, each association shall pay the actual cost of the examination, if required by the commissioner.
    3. At least semiannually, the commissioner shall assess each state and federal savings and loan association that has been designated as an eligible public depository, as defined in section 11-47-103 (6), based on its total public deposits held, to meet its share of the division's supervisory costs of monitoring compliance with the provisions of the "Savings and Loan Association Public Deposit Protection Act", article 47 of this title, for that fiscal year. Such assessments shall be calculated in terms of cents per thousand dollars of total public deposits held. The assessment calculation, or ratio of the assessment charged to total public deposits held, shall be alike in all cases. On or before the dates specified by the commissioner, each association shall pay its assessment.
    4. In the same manner as specified in paragraph (b) of this subsection (1), the commissioner may charge any state or federal savings and loan association that has been designated as an eligible public depository, as defined in section 11-47-103 (6), for the actual cost of any examination necessary to assure its compliance with article 47 of this title.
  2. All fees and collections of every kind shall be transmitted to the state treasurer, who shall credit the same to the division of financial services cash fund, which fund is hereby created in the state treasury. All moneys in the fund shall be subject to appropriation by the general assembly for the direct and indirect costs of the activities of the division of financial services. All interest derived from the deposit and investment of moneys in the fund shall be credited to the fund. Any moneys not appropriated shall remain in the fund and shall not be transferred or revert to the general fund of the state at the end of any fiscal year.

Source: L. 33: p. 352, § 4. CSA: C. 25, § 72. L. 39: p. 252, § 25. L. 45: p. 240, § 3. L. 47: p. 317, § 2. CRS 53: § 122-1-6. C.R.S. 1963: § 122-1-6. L. 67: p. 892, § 1. L. 81: (1) amended, p. 619, § 1, effective April 30. L. 83: (1)(c) added, p. 487, § 1, effective May 10. L. 84: (1)(d) added, p. 377, § 1, effective May 11. L. 88: IP(1) and (1)(a) amended, p. 455, § 1, effective March 18. L. 89: IP(1) amended, p. 618, § 8, effective July 1. L. 92: (1)(a) and (2) amended, p. 928, § 6, effective February 25. L. 2004: (1)(a)(II) and (1)(a)(III) amended, p. 135, § 12, effective July 1. L. 2005: (1) amended, p. 14, § 1, effective February 23.

11-40-106.5. Preauthorized transfers - savings and loan association must have written authorization. (Repealed)

Source: L. 88: Entire section added, p. 346, § 10, effective July 1. L. 89: Entire section repealed, p. 592, § 1, effective April 7.

11-40-107. Defamation of associations - penalty.

Any person who willfully makes, circulates, or transmits any false statement, rumor, report, or suggestion, written, printed, or spoken, concerning the financial condition or management or assets of any savings and loan association, either by name or as a particular group of any particular city, town, or county, which incites the public or any person or creates an impression detrimental to the standing, solvency, or responsibility of said savings and loan association, or which tends to result or results in the withdrawal of funds from such association or in the exchange of shares in savings and loan associations for any other stock, bonds, notes, debentures, or other evidences of indebtedness or for any other property of any kind or character whatsoever, or which tends to result or results in impairing the confidence which may be reposed in said association and any person aiding, advising, and abetting such person in such matters and things is guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine of not less than three hundred dollars nor more than one thousand dollars, or by imprisonment in the county jail for not less than three months nor more than one year, or by both such fine and imprisonment.

Source: L. 33: p. 352, § 3. CSA: C. 25, § 71. CRS 53: § 122-1-7. C.R.S. 1963: § 122-1-7.

11-40-108. Circulating false information - penalty.

Any person who willfully and knowingly concurs in or is responsible, directly or indirectly, for the making, publishing, or posting, either generally or privately, to actual or prospective members or investors of any false or misleading information tending to imply that any other business operated in this state is a savings and loan association or operated in the manner of a savings and loan association or is regulated in whole or in part under the provisions of articles 40 to 46 of this title is guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine of not less than three hundred dollars, or by imprisonment in the county jail for a period of not less than six months nor more than one year, or by both such fine and imprisonment.

Source: L. 33: p. 359, § 17. CSA: C. 25, § 85. CRS 53: § 122-1-8. L. 63: p. 292, § 12. C.R.S. 1963: § 122-1-8.

11-40-109. Suits interfering with business of association.

No order, judgment, or decree providing for an accounting of, or enjoining, restraining, or interfering with the transaction of, the business of any savings and loan association organized or doing business under the provisions of articles 40 to 46 of this title shall be made or granted otherwise than upon the application of the attorney general, after his or her approval of a written request therefor by the commissioner, except in an action by a judgment creditor or in proceedings supplementary to execution.

Source: L. 33: p. 358, § 14. CSA: C. 25, § 82. CRS 53: § 122-1-9. C.R.S. 1963: § 122-1-9. L. 2016: Entire section amended, (HB 16-1094), ch. 94, p. 265, § 6, effective August 10.

ARTICLE 41 ORGANIZATION AND POWERS

Cross references: For electronic funds transfers for financial institutions organized under this article, see article 48 of this title.

Section

11-41-101. General organization.

Domestic associations may be incorporated with shares or stock or both and with all the rights, powers, and privileges and subject to all the restrictions set forth in articles 40 to 46 of this title.

Source: L. 33: p. 287, § 1. CSA: C. 25, § 4. CRS 53: § 122-2-1. C.R.S. 1963: § 122-2-1.

11-41-102. Restriction on corporate name.

The name of each domestic association incorporated on or after May 17, 1939, shall include the words "savings and loan association". If the name of the domestic association contains the words "savings and loan association", it need not comply with the requirements of part 6 of article 90 of title 7, C.R.S. No association shall include in its name the words "guaranty" or "guarantee" or "mutual", unless organized without stock, or "permanent", unless organized with stock. The provisions of this section shall not affect the right of any association existing before May 17, 1939, to continue the use of its name.

Source: L. 33: p. 287, § 2. CSA: C. 25, § 5. L. 39: p. 238, § 5. CRS 53: § 122-2-2. C.R.S. 1963: § 122-2-2. L. 79: Entire section amended, p. 430, § 2, effective June 19. L. 93: Entire section amended, p. 861, § 28, effective July 1, 1994. L. 2000: Entire section amended, p. 989, § 107, effective July 1.

ANNOTATION

Where the name assumed by a corporation is not in compliance with this section, all possibility of the mutual rights and obligations which obtain between building and loan associations and their members is excluded. Int'l Improvement Co. v. Wagner, 22 Colo. App. 489, 125 P. 597 (1912).

11-41-103. Use of name "savings and loan association" restricted.

It is unlawful for any person, firm, company, association, partnership, society, or corporation, either domestic or foreign, to transact business under any name or title which contains the term "savings and loan", or use any sign or circulate or use any letterhead, billhead, circular, or paper whatsoever, or advertise in any manner to indicate that its business is the character or kind of business carried on or transacted by a savings and loan association or which is calculated to lead the public to believe that its business is that of a savings and loan association, unless it is lawfully authorized to do business in this state under the provisions of articles 40 to 46 of this title or its charter and is actually engaged in carrying on a savings and loan business in this state under the provisions of said articles 40 to 46, and, upon action brought by the commissioner, injunction will lie to restrain any person, firm, company, partnership, society, corporation, or agent thereof from continuing to violate any of the provisions of this section.

Source: L. 33: p. 359, § 18. CSA: C. 25, § 86. CRS 53: § 122-2-3. C.R.S. 1963: § 122-2-3.

ANNOTATION

Law reviews. For article, "Foreign Savings and Loan Associations Not Doing Business in Colorado", see 16 Colo. Law. 43 (1987).

11-41-104. Articles of incorporation.

  1. Any five or more persons who are citizens of this state and who may desire to form a corporation for the purpose of carrying on the business of a savings and loan association shall make, sign, and acknowledge, in triplicate, before some officer competent to take the acknowledgment of deeds, a certificate in writing, known as the articles of incorporation, in which shall be stated:
    1. The name of said association, which shall not be identical with that of any other association in this state nor which so resembles the name of any other association as to be likely to lead to confusion as to its identity;
    2. The objects for which the association is formed;
    3. The name of the city or town and county in this state wherein the principal office of the association is to be located;
    4. In the event it is a permanent stock company, the number of shares of permanent stock authorized and the number of shares of permanent stock subscribed for and the amount of cash actually paid in thereon;
    5. The names of the incorporators, their respective occupations and residence addresses, and a statement of the number of shares or amount of stock subscribed by each and the amount of cash paid upon the shares or stock of each;
    6. The kind or classes of shares or stock the association proposes to issue and a statement of all or any of the designations and the powers, rights, qualifications, limitations, or restrictions in respect of any classes of stock or shares of the association;
    7. That the association shall have perpetual existence;
    8. Whether or not cumulative voting shall be allowed in the election of directors;
    9. That, if such is the case, the association is created for the purpose of carrying on part or all of its business beyond the limits of this state;
    10. The number of directors and the names and residences of the directors who shall serve for the first year of its existence and until their successors are elected and qualified;
    11. A statement as to whether the association is organized to issue and sell its shares and otherwise operate as a share association or to accept savings deposits and operate as a deposit association, as provided by the provisions of articles 40 to 46 of this title.
  2. The certificate may also contain any other provisions which the incorporators may see fit to insert for the regulation and conduct of the affairs of the association, the directors, shareholders, and stockholders, or any class of shareholders or stockholders, but such provisions shall not conflict with the provisions of articles 40 to 46 of this title or the laws of the state of Colorado.
  3. The provisions of this section shall be the exclusive authority for the incorporation of a domestic association, and nothing in either section 11-41-121 (1.5) or 11-41-133 (6) shall be construed or interpreted to authorize the organization of a domestic association by a foreign association by incorporation of a charter de novo.

Source: L. 33: p. 288, § 3. CSA: C. 25, § 6. CRS 53: § 122-2-4. C.R.S. 1963: § 122-2-4. L. 69: p. 1014, § 4. L. 88: (3) added, p. 457, § 1, effective July 1.

Cross references: For persons before whom acknowledgments may be taken, see § 38-30-126.

11-41-105. Minimum stock subscription - issuance of preferred stock.

  1. No permanent stock association shall be organized on or after July 1, 1983, unless, prior to the filing of its articles of incorporation, such minimum amount of its permanent stock and paid-in surplus as required by the commissioner has been subscribed for and the same paid for in lawful money of the United States and is in the custody of the persons named in the articles of incorporation as the members of the first board of directors.
  2. Preferred stock may be issued by a permanent stock association at any time and shall have such preferences, powers, conversion provisions, and rights as the board of directors of the association may approve.

Source: L. 33: p. 289, § 4. CSA: C. 25, § 7. L. 39: p. 261, § 36. L. 43: p. 200, § 1. CRS 53: § 122-2-5. C.R.S. 1963: § 122-2-5. L. 77: Entire section amended, p. 569, § 2, effective July 1. L. 83: (1) amended, p. 489, § 1, effective April 26.

11-41-106. Approval of articles of incorporation.

The articles of incorporation of any savings and loan association organized under articles 40 to 46 of this title shall not be filed in the office of the secretary of state of the state of Colorado or be received by the secretary of state for filing unless accompanied by a certificate of approval by the commissioner.

Source: L. 33: p. 290, § 5. CSA: C. 25, § 8. L. 39: p. 238, § 6. CRS 53: § 122-2-6. C.R.S. 1963: § 122-2-6.

11-41-107. Documents deposited with commissioner.

  1. Every domestic savings and loan association proposing to incorporate in this state shall first deposit with the commissioner the following documents:
    1. Two signed and verified copies of the articles of incorporation of the association;
    2. Two copies of the bylaws of the association;
    3. Applications signed and verified by a majority of the initial directors of such association, setting forth: Names and addresses of the proposed incorporators, directors, and officers of such association; a statement of the experience and general fitness of the officers and directors to engage in the savings and loan business; an itemized statement of the estimated receipts and expenditures of such association for the first year showing that such association will have a reasonable chance to succeed in the territory in which it proposes to operate; and such other matters as the commissioner may require. Such application shall be accompanied by a fee in the form of a certified check in the amount established by the commissioner, payable to the division of financial services.
  2. Upon receipt of such documents, the commissioner shall immediately examine and investigate into the advisability of issuing a certificate of approval for such association, and he shall issue such certificate of approval if, upon examination, the commissioner finds:
    1. That the articles of incorporation comply with all the provisions of articles 40 to 46 of this title;
    2. That the bylaws comply with the provisions of articles 40 to 46 of this title;
    3. That the provisions of articles 40 to 46 of this title have been complied with;
    4. That it is expedient and desirable to permit such association to engage in business;
    5. That the officers and directors have the experience and general fitness to engage in a savings and loan business;
    6. That the financial program of the association is sound;
    7. That the association has a probable chance to succeed;
    8. That its name is not so similar to that of any other association operating in this state as to mislead the public; but the words "the", "and", "mutual", "permanent", and "savings and loan association" shall not themselves constitute such similarity of names as to be likely to mislead the public.
  3. If the commissioner's finding is adverse to the association in any of the particulars recited in subsection (2) of this section, he shall not issue a certificate of approval.

Source: L. 33: p. 291, § 6. CSA: C. 25, § 9. L. 39: p. 238, § 7. CRS 53: § 122-2-7. C.R.S. 1963: § 122-2-7. L. 83: (1)(c) amended, p. 493, § 1, effective July 1. L. 84: (1)(c) amended, p. 377, § 2, effective May 11. L. 89: (1)(c) amended, p. 620, § 13, effective July 1.

11-41-108. Refusal of certificate - appeal.

If the commissioner, after an examination, believes for any reason that a certificate of approval should not be issued and refuses to issue the same, he shall file a written statement with a board consisting of the governor, the attorney general, and the state treasurer of the state of Colorado giving in detail his reasons for such refusal. After notice to all concerned and after a hearing, said board may order the commissioner to issue the certificate of approval or may approve his action in refusing a certificate of approval.

Source: L. 33: p. 293, § 7. CSA: C. 25, § 10. CRS 53: § 122-2-8. C.R.S. 1963: § 122-2-8.

Cross references: For hearing procedures, see § 24-4-105.

11-41-109. Certificate of approval - where articles filed.

  1. If the commissioner finds affirmatively for the association upon all the matters set forth in section 11-41-107, he shall issue a certificate of approval under his hand and seal, executed in duplicate, within sixty days thereafter, in which shall be recited in substance the following:
    1. That the articles of incorporation and bylaws have been filed in his office;
    2. That said articles of incorporation and bylaws conform to the provisions of the law;
    3. That he has approved the same.
  2. The commissioner shall attach one of said certificates to each copy of the articles of incorporation and shall retain one copy of the articles of incorporation and bylaws in his office and return the other copy of the articles and bylaws, with the certificate of approval attached thereto, to the association. Upon receipt from the commissioner of the articles of incorporation, the association shall file the same with the secretary of state, and certified copies of the articles of incorporation shall be filed by the association in the office of the county clerk and recorder of each county in this state in which said association may own real estate. The failure to file a certified copy in the office of the clerk and recorder of any county in this state shall not affect the validity of the incorporation of any association which has made its filing with the secretary of state and has obtained a certificate of approval. In the event a true copy of such articles of incorporation is presented to the secretary of state with the request that the same be certified, he shall certify the same for a fee which shall be determined and collected pursuant to section 24-21-104 (3), C.R.S., which certificate shall contain, in addition to the usual statement, a statement that the same is a true copy of the original articles of incorporation on file in his office and a statement as to the date of the filing of such articles of incorporation. When articles of incorporation or amendments thereto have been filed in the office of the secretary of state, he shall record and carefully preserve the same in his office, and a copy thereof, duly certified by the secretary of state under the great seal of the state of Colorado, shall be evidence of the existence of such association and prima facie evidence of the contents of said articles of incorporation or such amendments thereto.
  3. The secretary of state shall charge for the filing of documents for savings and loan associations the same fees that are charged for corporations with like capital stock, as prescribed in the "Colorado Corporation Code", and such fees shall be deposited in the department of state cash fund created in section 24-21-104 (3), C.R.S.

Source: L. 33: p. 293, § 8. CSA: C. 25, § 11. CRS 53: § 122-2-9. C.R.S. 1963: § 122-2-9. L. 67: p. 492, § 1. L. 83: (2) and (3) amended, p. 876, § 41, effective July 1.

Editor's note: The "Colorado Corporation Code", articles 1 to 10 of title 7, referred to in subsection (3) was repealed, effective July 1, 1994, and was replaced on that date by the "Colorado Business Corporation Act", articles 101 to 117 of title 7.

Cross references: For fees for filing documents under the "Colorado Business Corporation Act", see part 2 of article 101 of title 7.

11-41-110. Body corporate.

Upon making the articles of incorporation, obtaining a certificate of approval from the commissioner, filing the articles of incorporation and certificate of approval in the office of the secretary of state, and paying the filing fees therefor to the secretary of state, the persons so associating and their successors and assigns shall, from the date of the filing of the same with the office of the secretary of state, be a body corporate by the name set forth in said articles of incorporation, subject to dissolution as provided in articles 40 to 46 of this title and the laws of Colorado not in conflict with said articles 40 to 46. No association shall cease to exist or expire from neglect on the part of the association to elect officers or directors at the time mentioned in their articles of incorporation and bylaws, and all officers or directors elected by an association shall hold office until their successors are duly elected and qualified.

Source: L. 33: p. 295, § 9. CSA: C. 25, § 12. CRS 53: § 122-2-10. C.R.S. 1963: § 122-2-10.

11-41-111. Renewal of corporate life.

  1. Any association incorporated under any law prior to June 8, 1933, may extend its corporate life upon the affirmative vote of at least a majority of its directors at a special meeting of the board of directors called for that purpose, setting out the purpose of said meeting, and ratified by the written consent of persons holding in the aggregate more than two-thirds in book value of the outstanding stock and shares in such association.
  2. The president or vice-president and the secretary or assistant secretary of said association shall certify the fact, under the seal of said association, and shall make as many certificates as may be necessary so as to file one in the office of the county clerk and recorder in each county wherein the association may do business, one in the office of the secretary of state, and one in the office of the commissioner, and thereupon the corporate life of said association shall be renewed in perpetuity, or for the term mentioned in the certificate, upon filing such certificate in the office of the secretary of state. All stockholders or shareholders have the same rights in the new association, so extended, as they had in the association as originally formed.
  3. The extension of the term of existence of any such association in the manner provided shall not be so construed as enlarging any of the powers, privileges, or franchises theretofore enjoyed by such association. Upon the proper filing of any certificate of extension mentioned in articles 40 to 46 of this title, the corporate existence shall be considered as extended and continuous for the period specified in such certificate from the date of the previous expiration of such corporate existence, and said association shall be considered as then having had a continuous corporate existence to the time of the filing of such certificate of renewal.

Source: L. 33: p. 295, § 10. CSA: C. 25, § 13. CRS 53: § 122-2-11. C.R.S. 1963: § 122-2-11.

11-41-112. Powers of savings and loan associations.

  1. Savings and loan associations have the following powers:
    1. To have succession of its corporate name;
    2. As to all associations incorporated prior to June 8, 1933, to have existence for the period named in their articles of incorporation and, on the termination of such period, perpetually if so provided in the extension;
    3. As to all associations incorporated under articles 40 to 46 of this title, to have existence perpetually;
    4. To sue and be sued in any court of law or equity;
    5. To have a corporate seal and to alter the same and use the same by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise;
    6. To appoint such officers and agents as the business of the association shall require and allow them reasonable compensation;
    7. To make bylaws, not inconsistent with the constitution or laws of the United States or of this state or the provisions of articles 40 to 46 of this title, and alter the same at pleasure, and make all needed rules and regulations for the transaction of its business and the control of its property and affairs, if a certified copy of same has been filed with the commissioner. The bylaws of an association may be amended either by the stockholders or shareholders at their annual meeting or by the board of directors of an association at any regular meeting of the board of directors; but no change in the bylaws shall take effect until approved by the commissioner.
    8. To acquire, hold, mortgage, and convey all such real estate and personal property as may be transferred to it in the operation of its business;
    9. To levy, assess, and collect from its shareholders such sums of money by way of installment dues and interest on loans as the association may provide in its bylaws;
    10. To issue and sell shares as provided in sections 11-42-101 to 11-42-106 or, in the case of deposit associations operated under the provisions of section 11-42-125, to accept savings deposits as provided by such section;
    11. To redeem its shares and repay the funds acquired thereby with such earnings as the same may be entitled according to the terms of the issue thereof if the same are no longer required for the purposes of the association;
    12. To act as a trustee, custodian, or manager or in any other fiduciary capacity to the same extent authorized and permitted from time to time by the laws and regulations applicable to federal savings and loan associations in Colorado, and upon specific approval by the commissioner, by permission granted such federal associations by the federal office of thrift supervision or its successor, including specifically, but without limitation, the power to act as the trustee, custodian, or manager of any trust created or organized in the United States and forming a part of a stock bonus, pension, profit-sharing, or retirement plan that is qualified for specific tax treatment under the provisions of the federal "Self-Employed Individuals Tax Retirement Act of 1962", as from time to time amended or supplemented, or under the provisions of any other act of congress enacted after June 2, 1971, as a substitute or replacement for the federal "Self-Employed Individuals Tax Retirement Act of 1962" or under the provisions of the federal "Employee Retirement Income Security Act of 1974", 29 U.S.C. sec. 1001 et seq., as from time to time amended or supplemented. The association managing funds of any such plan, trust, or fund shall have, to the extent applicable to federal savings and loan associations in Colorado, all of the rights, powers, privileges, and immunities and shall be subject to the same obligations and duties as an individual fiduciary under like circumstances with power to make investments. All funds held in such fiduciary capacity by any association may be commingled for appropriate purposes of investment, but individual records shall be kept by the fiduciary for each participant and shall show in proper detail all transactions engaged in under the authority of this paragraph (l). An association acting as a trustee may control accounts in or securities of such association pursuant to the exercise of its authority as a trustee. The exercise by an association of any authority vested in it shall not affect any other authority of such association.
    13. To, subject to the regulations of the United States treasury department and the federal office of thrift supervision or its successor, establish a tax and loan account and serve as a depository for federal taxes or as a treasury tax and loan depository, and to satisfy any requirement in connection therewith;
    14. To provide in its articles of incorporation for the elimination or limitation of the personal liability of a director to the corporation or to its stockholders for monetary damages for breach of fiduciary duty as a director; except that such provision shall not eliminate or limit the liability of a director to the corporation or to its shareholders for monetary damages for: Any breach of the director's duty of loyalty to the corporation or its stockholders; acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law; or any transaction from which the director derived an improper personal benefit. No such provision shall eliminate or limit the liability of a director to the corporation or to its shareholders for monetary damages for any act or omission occurring prior to the date when such provision becomes effective.
    15. Pursuant to federal law or under such rules and regulations as may be prescribed by the financial services board and subject to regulations promulgated by the commissioner of insurance concerning the sale of insurance by savings and loan associations as provided in section 10-2-601, C.R.S., to act as the agent, through the savings and loan association or any service corporation thereof, for any fire, life, or other insurance company authorized to do business in this state by soliciting and selling insurance and collecting premiums on policies issued by such company. For services so rendered, such savings and loan association or service corporation of such savings and loan association may receive such fees or commissions as may be agreed upon between such entity and the insurance company for which it may act as agent.

Source: L. 33: p. 295, § 11(1)-(11). CSA: C. 25, § 14. CRS 53: § 122-2-12. C.R.S. 1963: § 122-2-12. L. 69: p. 1014, § 5. L. 71: p. 1145, § 1. L. 79: (1)(m) added, p. 430, § 3, effective June 19. L. 81: (1)(l) amended, p. 622, § 1, effective May 18. L. 87: (1)(n) added, p. 368, § 6, effective May 20. L. 97: (1)(o) added, p. 432, § 9, effective April 24. L. 2004: (1)(l) and (1)(m) amended, p. 135, § 13, effective July 1.

Cross references: For the "Self-Employed Individuals Tax Retirement Act of 1962", see Pub.L. 87-792, 76 Stat. 809; for the "Employee Retirement Income Security Act of 1974", see Pub.L. 93-406, codified at 29 U.S.C. sec. 1001 et seq.

ANNOTATION

Law reviews. For article, "1988 Update on Colorado Tort Reform Legislation -- Part II", see 17 Colo. Law. 1949 (1988). For article, "Corporate Director Liability", see 65 Den. U. L. Rev. 59 (1988).

A savings and loan association may not by bylaw repeal the right of withdrawal of a member without his consent. Holyoke Bldg. & Loan Ass'n v. Lewis, 1 Colo. App. 127, 27 P. 872 (1891).

A holder of note of an association is precluded from selling collateral. The holder of a note against a building and loan association is precluded from resorting to a sale of his collateral security to satisfy the same; his recourse, where the association is in receivership, being to file his claim in due course. Reserve Bldg. & Loan Ass'n v. Jamison, 108 Colo. 503 , 119 P.2d 621 (1941).

11-41-112.5. Savings and loan association as fiduciary.

It is unlawful for a savings and loan association to act as fiduciary, other than as escrow agent, unless it is authorized to do so by the commissioner.

Source: L. 81: Entire section added, p. 623, § 2, effective May 18.

11-41-113. Federal home loan bank membership.

  1. Any savings and loan association organized and incorporated under the laws of this state as a savings and loan association that is eligible to become a member of the federal home loan bank, in accordance with the provisions of the act of congress known and cited as the "Federal Home Loan Bank Act", 12 U.S.C. sec. 1421 et seq., approved July 22, 1932, is authorized to subscribe for stock of the federal home loan bank for the district in which it is located and to invest its funds in such stock for the purpose and to the extent required and permitted by the provisions of the "Federal Home Loan Bank Act", 12 U.S.C. sec. 1421 et seq., or any amendment thereto, and is further authorized to furnish to the federal office of thrift supervision or its successor and to the federal home loan bank reports of examinations of such associations made by the commissioner, and is further authorized to consent to an examination to be made by the federal office of thrift supervision or its successor or the federal home loan bank, and is further authorized to do all other things as may be required by the "Federal Home Loan Bank Act", 12 U.S.C. sec. 1421 et seq., or any amendment thereto, necessary to obtain and to continue membership in the federal home loan bank and to obtain advances therefrom or that may be incidental to acquiring or holding membership and to obtaining advances therefrom, and is authorized to assume all the duties, obligations, responsibilities, and liabilities and become entitled to all the benefits provided in the "Federal Home Loan Bank Act", 12 U.S.C. sec. 1421 et seq.
  2. Any savings and loan association has the power to borrow money from the federal home loan bank, when authorized by resolution of its board of directors, upon such terms and rates of interest as may be agreed upon and is authorized to assign and pledge its notes, bonds, mortgages, or other property and to repledge the shares of stock pledged to it as collateral security without securing the consent of the owner thereto as security for the repayment of its indebtedness for money borrowed.
  3. Such pledgee of any note or other evidence of indebtedness due to an association has the right to enforce in its own name or in the name of the association all appropriate remedies to enforce collection, whether or not the shares described in connection with said note are held by such pledgee. Any obligation incurred by or loan made to an association shall constitute a claim against the association's assets and shall be payable in advance of and by preference over all claims or rights of the shareholders or stockholders of such association and shall be prior to and outrank any demand or application for withdrawal or cancellation of all classes of shares or stock or units or certificates in said association including prepaid and matured shares. The existence of a withdrawal list consisting of members desiring to withdraw from the association shall not prevent the board of directors of such association, in its discretion, from borrowing money from the federal home loan bank, to be used for the purpose of making mortgage loans to the members of the association or retiring bank loans, in which event all such amount of borrowed money may be exclusively used for the purpose borrowed or for other purposes, subject to the approval of the commissioner; but no savings and loan association shall at any time borrow money from the federal home loan bank in an amount exceeding any limit fixed by the laws of this state.
  4. Any savings and loan association having funds in its treasury for investment, which funds are deemed by it to be in excess of the amount needed for loans to its members and for the payment of matured shares and withdrawals, has the power to invest such portion of these excess funds in the obligations, bonds, debentures, and other securities of the federal home loan bank; but such investments may not be made in an amount in excess of the limit, if any, provided by the laws of this state for investment of funds in classes of investment other than in mortgage loans to members of the association.
  5. Any officer, director, trustee, attorney, or agent of a savings and loan association, or other borrower, acting as agent for a federal home loan bank in the collection of interest, amortization, or installment payments on collateral deposited with said bank, who applies the proceeds of such collections otherwise than as provided in the agreement with the bank is guilty of theft and shall be subject to the punishment provided by the laws of this state for that offense.

Source: L. 33: p. 300, § 11(12). CSA: C. 25, § 14. CRS 53: § 122-2-13. C.R.S. 1963: § 122-2-13. L. 2004: (1) amended, p. 136, § 14, effective July 1.

11-41-114. How funds invested.

  1. Any savings and loan association may invest any portion of its funds in any of the following:
    1. Loans to its members, secured by first lien trust deeds or mortgages upon improved real estate, and upon such plans of repayment, as provided in section 11-41-119, and in such other loans to its members as the commissioner may approve;
    2. Bonds and other obligations of, or guaranteed as to interest and principal by, the United States;
    3. Bonds or debentures issued by any federal home loan bank in accordance with the provisions of the "Federal Home Loan Bank Act";
    4. Consolidated federal home loan bank bonds or debentures issued by the federal home loan bank administration in accordance with the provisions of the "Federal Home Loan Bank Act";
    5. Bonds or debentures issued by the federal deposit insurance corporation or its successor in accordance with the provisions of Title IV of the "National Housing Act", and any amendments thereto;
    6. Insured shares of savings and loan associations to the extent that each investment is insured by the federal deposit insurance corporation or its successor and uninsured shares of savings and loan associations but not to exceed ten thousand dollars in any one uninsured association, if such associations are incorporated under the laws of this state or the federal government and are doing business in this state and if such associations are functioning and operating without any restrictions imposed by order of the commissioner or federal home loan bank administration;
    7. Bonds and legal registered warrants as are a direct obligation of the state of Colorado or of any county, city and county, school district, or incorporated city or town therein which has continuously existed as a lawful corporation for a period of at least fifteen years prior to the date thereof and whose bonds have not been in default as to principal or interest for a period of five years prior to the purchase of the same by any savings and loan association;
    8. Other investments, as approved by the commissioner, in which and to the same extent that savings and loan associations, chartered in accordance with the provisions of the "Home Owners' Loan Act of 1933", as amended, may invest;
      1. Capital stock, obligations, or other securities of any corporation, if such corporation is engaged only in such businesses and activities as may be engaged in by corporations whose capital stock is a lawful investment for federal savings and loan associations under the laws, rules, and regulations applicable to all federal savings and loan associations similarly situated. The maximum total investment by any association in any such corporation or combination of corporations shall not exceed the maximum investment which federal savings and loan associations are permitted to maintain in capital stock, obligations, or other securities of similar corporations.
      2. In addition to the maximum total investment provided in subparagraph (I) of this paragraph (i), an association may invest an additional three percent of its assets in such corporation or combination of corporations solely for residential real estate development through joint ventures. Nothing in this subparagraph (II) shall authorize participation in such joint ventures conditioned upon utilization of any real property held, directly or indirectly, by such corporation. This subparagraph (II) shall not be construed to authorize such corporation or combination of corporations to invest in real property unless such investment is initiated through a joint venture.
      3. No association organized under the laws of this state shall acquire the capital stock, obligations, or other securities of any such corporation until there has been filed in the office of the commissioner a statement by such corporation agreeing to permit, and pay all costs of, such examinations or audits of the corporation by the commissioner as he deems necessary in order to confirm compliance with the provisions of this paragraph (i).
    9. Investments in real property and obligations secured by liens on real property located within a geographic area or neighborhood receiving concentrated development assistance by a local government under Title I of the "Housing and Community Development Act of 1974", as amended, but no investment in real property may exceed an aggregate investment of two percent of the assets of the association;
    10. Loans as to which the association has the benefit of any guaranty under Title IV of the "Housing and Urban Development Act of 1968", as amended, or under part B of the "Urban Growth and New Community Development Act of 1970", as amended, or under section 802 of the "Housing and Community Development Act of 1974", as amended, or of a commitment or agreement therefor;
    11. Revenue obligations issued to provide, enlarge, or improve electric power, gas, water, and sewer facilities by any city or town having a population of not less than two thousand people at the time of the investment located in any state in the United States and such investment shall be in accordance with the laws of this state.
  2. In addition to the acceptance of deposit or share accounts, any association may borrow money and negotiate for and receive such long-time or short-time loans evidenced by notes, bonds, debentures, or other securities as may be found necessary to advance the purposes of the association, subject to any limitations as to the total aggregate amount of such borrowings contained in the charter or articles of incorporation of the association or imposed by rules and regulations duly adopted by the commissioner. Except as limited by the terms of its charter or articles of incorporation or by duly adopted rules and regulations of the commissioner, an association may secure such borrowings by the mortgage, pledge, collateral assignment, or other hypothecation of its properties, including a trust or pool or mortgages or other encumbrance held by it. Without limiting the generality of the foregoing, an association may issue and sell securities guaranteed pursuant to section 306 (g) of the "National Housing Act", as amended, and may secure such securities as permitted in this subsection (2) and may issue and sell any other guaranteed or unguaranteed securities of a type or kind which may be issued and sold by federal savings and loan associations and secure the same with the property of the association to the same extent as permitted for federal savings and loan associations.
  3. Any association may invest in real estate or interests therein, including buildings and related parking facilities, for use in the conduct of the business of the association or for the conduct of such business and for rental to others of excess space; but no such investment may be made without the prior approval in writing of the commissioner if the total amount of all of such investments made by the association exceeds the aggregate amount of the association's general reserves, undivided profits, and surplus. A permitted investment under the foregoing provision shall be deemed to include the ownership of stock of a wholly-owned subsidiary corporation having as its exclusive activity the ownership and management of such property or interests.
  4. An association may loan an amount not exceeding three percent of the association's assets in a manner not otherwise authorized by articles 40 to 47 of this title, on condition that such loans are related to real estate or housing.
  5. An association may invest in real estate, real estate interests, and real estate related enterprises for the purpose of producing income, for inventory and sale, improvement, or rental by direct purchase or otherwise. The maximum total investment by an association pursuant to this subsection (5) shall not exceed ten percent of its assets reduced by the amount invested by the association in real estate through service corporations pursuant to paragraph (i) of subsection (1) of this section. In connection with such investment, the association may exercise all rights of an owner.

Source: L. 33: p. 303, § 11(13). CSA: C. 25, § 14. L. 39: p. 240, §§ 10, 11. L. 45: p. 238, § 1. CRS 53: § 122-2-14. L. 57: p. 650, § 1. L. 59: p. 664, § 6. C.R.S. 1963: § 122-2-14. L. 69: p. 1014, § 6. L. 71: pp. 1145, 1146, §§ 2, 3. L. 72: p. 617, § 151. L. 77: (4) added, p. 570, § 3, effective July 1. L. 79: (1)(j), (1)(k), and (1)(l) added, p. 431, § 4, effective June 19. L. 83: (1)(i) amended, p. 495, § 1, effective May 25. L. 85: (5) added, p. 397, § 2, effective May 16. L. 2004: (1)(e) and (1)(f) amended, p. 149, § 54, effective July 1.

Cross references: For other legal investments, see §§ 32-4-544 and 32-11-810; for the "Federal Home Loan Bank Act", see Pub.L. 72-304, codified at 12 U.S.C. sec. 1421 et seq.; for the "National Housing Act", see Pub.L. 73-479, codified at 12 U.S.C. sec. 1710 et seq.; for the "Home Owners' Loan Act of 1933", see Pub.L. 73-42, codified at 12 U.S.C. sec. 1461 et seq.; for the "Housing and Community Development Act of 1974", see Pub.L. 93-383, 88 Stat. 633 (1974); for the "Housing and Urban Development Act of 1968", see Pub.L. 90-448, 82 Stat. 476 (1968); for the "Urban Growth and New Community Development Act of 1970", see Pub.L. 91-609, 84 Stat. 1791 (1970).

ANNOTATION

Law reviews. For article, "The Convertible, Participating Mortgage: Planning Opportunities and Legal Pitfalls in Structuring the Transaction", see 54 U. Colo. L. Rev. 295 (1983).

11-41-115. Interest rates on loans.

  1. Any savings and loan association may charge, contract for, and recover such rate of interest as may be provided in the notes or other evidences of indebtedness taken by the association. Notes secured solely by the pledge of shares and notes secured by real estate mortgages repayable upon the sinking fund plan shall be nonnegotiable in form, and all other notes, including those insured by the federal housing administrator and those taken in connection with loans to veterans under the provisions of the "Servicemen's Readjustment Act of 1944", may be either negotiable or nonnegotiable in form.
  2. A substantial portion of the business of all associations shall be devoted to the acceptance of savings deposits from or the sale of their shares to their members and the lending of those funds to their members as set forth in section 11-40-103 and otherwise in articles 40 to 46 of this title, but associations may also purchase loans of a type which they are permitted to make and sell loans with or without recourse so long as such purchase or sale of loans is conducted as a part of and in connection with the other permitted business activities of an association.
  3. Each mortgage loan sold by an association may be sold with or without recourse and, if under a contract to service the same, shall be sold on a basis which will reimburse the association adequately for the cost of such servicing. All sale and servicing agreements shall be in writing and on file in the association.
  4. No interest that may accrue to an association shall be deemed usurious, and the same may be collected as debts of like amount are now by law collected in this state.
  5. No law of this state limiting interest or interest rates or the compounding of interest shall apply to any graduated payment mortgage or deed of trust made to individuals, or any mortgage or deed of trust to individuals where periodic disbursement of part of the loan proceeds is made by an association over a period of time as established by the mortgage or deed of trust, or over an expressed period of time ending with the death of such individuals, including but not limited to mortgages or deeds of trust having provisions for adding deferred interest to principal or otherwise providing for the charging of interest on interest.

Source: L. 33: p. 305, § 11. CSA: C. 25, § 14. L. 45: p. 239, § 2. CRS 53: § 122-2-15. C.R.S. 1963: § 122-2-15. L. 71: p. 1146, § 4. L. 79: (5) added, p. 431, § 5, effective June 19. L. 83: (3) amended, p. 493, § 2, effective July 1. L. 94: (3) amended, p. 66, § 8, effective July 1.

Cross references: For the "Servicemen's Readjustment Act of 1944", see Pub.L. 78-346, 58 Stat. 284 (1944).

ANNOTATION

Law reviews. For note, "Colorado Interest Law", see 34 Dicta 398 (1957).

Applied in Haugen v. Western Fed. Sav. & Loan Ass'n, 633 P.2d 497 (Colo. App. 1981).

11-41-116. Where associations may operate.

Upon approval of the commissioner, a savings and loan association may conduct business in this state, in other states, in the District of Columbia, in the territories and colonies of the United States, and in foreign countries, and have one or more offices out of this state, and own, hold, purchase, mortgage, lease, and convey real and personal property out of this state if such powers are included within the objects set forth in its articles of incorporation and are not in violation of any other provision of articles 40 to 46 of this title.

Source: L. 33: p. 296, § 11. CSA: C. 25, § 14. CRS 53: § 122-2-16. C.R.S. 1963: § 122-2-16.

11-41-117. Insurance of shares.

  1. A savings and loan association shall obtain and maintain insurance of its shares with the federal deposit insurance corporation or its successor as provided by the "Federal Deposit Insurance Act", 12 U.S.C. 1811, et seq., and any amendments thereto. Notice of any such actions by associations shall be submitted to the division.
  2. The commissioner, in connection with all such insured associations, shall furnish said insurance corporation with reports of examination, orders, and requirements issued in connection therewith and other information coming to his attention bearing on the financial condition and administration and may collaborate with said corporation in any merger, reorganization, dissolution, liquidation, or examination and audit of any such insured association.

Source: L. 33: p. 241, § 13. CSA: C. 25, § 14(1). CRS 53: § 122-2-17. C.R.S. 1963: § 122-2-17. L. 87: (1) amended, p. 466, § 1, effective July 1. L. 2004: (1) amended, p. 137, § 15, effective July 1.

11-41-117.5. Insurance of obligations.

  1. A savings and loan association shall obtain and maintain insurance of its obligations, including accounts, with the federal deposit insurance corporation or its successor.
    1. An association is further authorized to obtain and maintain insurance of any obligations, including accounts, or portions thereof not otherwise insured pursuant to subsection (1) of this section, with any federal agency, with any state agency, or with any other insurer meeting the requirements of paragraph (b) of this subsection (2).
    2. Any insurer insuring obligations pursuant to paragraph (a) of this subsection (2), other than the federal deposit insurance corporation or its successor shall be certified by the commissioner as having met the following:
      1. The contract of insurance contemplated is written upon substantially the same basis as to form, coverage, maturity, voluntary and involuntary termination, and other provisions as the insurance contract provided at that time by the federal deposit insurance corporation or its successor and complies with such further requirements for protection as the commissioner may promulgate by rule.
      2. The insurer has a net worth or, in the case of a governmental or statutorily authorized entity, reserves reasonably commensurate with the risks underwritten.
      3. The insurer, if a nongovernmental entity, is authorized to do business in this state as an insurer or is otherwise authorized by law to insure obligations.
  2. Within twenty days after June 30 and December 31 of each year, each insurer certified pursuant to paragraph (b) of subsection (2) of this section shall file with the commissioner a report for the preceding six months showing its financial condition. Said report shall be prepared, insofar as possible, in conformity with generally accepted accounting principles.
  3. The commissioner or his duly designated representative may investigate the affairs and examine the books, accounts, records, and files of the insurer at such intervals as the commissioner deems prudent, but not less than once a year, and shall have free access for such purposes. Costs of such investigations and examinations shall be paid by the insurer. If any such investigation or examination reveals that the insurer is not conducting its affairs in accordance with this section or that the insurer is not actuarially sound or is impaired and may be unable to fulfill its obligations, the commissioner may exercise any powers available under article 44 of this title until such time as compliance is restored or the impairment is terminated.
  4. The commissioner and the insurer may exchange information regarding an insured savings and loan association.
  5. The commissioner shall determine as of June 30 each year the cost of supervision of the insurer and shall assess such cost against the insurer. The assessment shall be paid on or before September 30 following assessment.

Source: L. 83: Entire section added, p. 497, § 1, effective May 26. L. 84: (3) to (6) added, p. 378, § 3, effective May 11. L. 87: (1) amended, p. 466, § 2, effective July 1. L. 2004: (1), IP(2)(b), and (2)(b)(I) amended, p. 137, § 16, effective July 1.

11-41-118. Loans - investment in notes or bonds.

  1. Savings and loan associations are authorized:
    1. To 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 administrator and to obtain such insurance;
    2. To make such loans, secured by real property or leasehold, as the federal housing administrator insures or makes a commitment to insure and to obtain such insurance.
  2. Associations may sell any loans authorized by this section, and each such loan sold by an association shall be sold without recourse and, if under a contract to service the same, on a basis which will reimburse the association adequately for the cost of such servicing. All sale and servicing agreements shall be in writing and on file in the association.
  3. It shall be lawful for savings and loan associations to invest their funds and the moneys in their custody or possession which are eligible for investment in notes or bonds secured by mortgage or trust deed insured by the federal housing administrator, and in obligations of national mortgage associations or similar credit institutions organized under Title III of the "National Housing Act", and in debentures issued by the federal housing administrator.
  4. No laws of this state requiring security upon which loans or investments may be made, or prescribing the nature, amount, or form of such security, or prescribing or limiting the period for which loans or investments may be made, or affecting the negotiability of the loan instrument shall be deemed to apply to loans or investments made pursuant to this section.
  5. An association may make loans for the purpose of mobile home financing, subject to any limitation as to maximum loan amounts which may be prescribed from time to time by the commissioner for all associations. For the purposes of this subsection (5), "mobile home" means a mobile accommodation used or designed for use as living quarters.
  6. An association may make loans for the repair, equipping, alteration, or improvement of any real property, including mobile homes, subject to such restrictions, limitations, prohibitions, conditions, and provisions as the commissioner may from time to time, by rule or regulation duly adopted, prescribe.
  7. An association may make loans or invest in obligations and advances of credit, referred to in this article as "loans", for the payment of expenses for postsecondary school education; but the total aggregate principal amount of an association's investment in such loans, exclusive of any investment which is or which at the time of its making was otherwise authorized, shall not exceed five percent of its invested capital.
  8. An association may issue letters of credit, subject to regulation by the commissioner pursuant to section 11-44-103.

Source: L. 33: p. 242, § 14. CSA: C. 25, § 14(2). L. 43: p. 201, § 3. CRS 53: § 122-2-18. C.R.S. 1963: § 122-2-18. L. 69: p. 1015, § 7. L. 73: p. 237, § 16. L. 75: (5) and (6) amended, p. 1464, § 2, effective July 18. L. 76: (6) amended, p. 394, § 1, effective April 19. L. 79: (6) amended, p. 431, § 6, effective June 19. L. 83: (8) added, p. 499, § 1, effective July 1.

Cross references: For the "National Housing Act", see Pub.L. 73-479, codified at 12 U.S.C. sec. 1701 et seq.

11-41-119. Loans to members and other loans.

  1. An association may invest any portion of its funds in loans to its members, secured by first lien trust deeds or mortgages upon improved real estate; except that additional loans or advances on the same property secured by additional encumbrances shall be deemed to be first liens for the purposes of articles 40 to 46 of this title, unless an intervening lien has been recorded, and upon the shares issued by such association, or upon both such securities; and except that, only in the case of an association not subject to regulation by the federal deposit insurance corporation or its successor, no one loan can be made in excess of five percent of the gross assets of the association at the close of the preceding month, nor in any event shall the total of loans in excess of fifty thousand dollars exceed twenty percent of the gross assets of the association at the close of the preceding month.
  2. An association may make loans on the security of its shares if the association obtains a first lien upon, or a pledge of, such account as security therefor. No such loan may exceed the withdrawal or repurchase value of the account securing the loan, and no such loan shall be made when there is an impairment of invested share capital or when the association has any application for withdrawal which has been on file and unpaid more than thirty days. Upon any default of such loan, the association may, after giving ten days' written notice to the last address of the owner of such account appearing on the books of the association, cancel such account, to the extent and in the amount sufficient to repay said loan and accrued interest thereon. The commissioner may prescribe such regulations concerning such certificate share loans as may be necessary.
  3. An association may make real estate loans, secured by encumbrances provided for in subsection (1) of this section, repayable upon the following plans:
      1. Installment loans. Loans may be made or purchased for an amount not in excess of ninety-five percent of the appraised value of the tendered security, repayable within forty years in consecutive monthly, quarterly, or annual installments, equal or unequal. Lump-sum payments may be required in the initial contract. The provisions and limitations of this paragraph (a) shall not apply if authority is otherwise permitted by federal law, rule, or regulation.
      2. The initial contract may provide for changes in the interest rate based upon an index agreed to by the borrower and the association. Such provision shall specify that changes in the index shall apply equally to increases or decreases in the interest rate. Decreases shall be mandatory and increases may be at the option of the association. Interest changes may be implemented through changes in the installment amount or the rate of amortization, or any combination thereof, as provided in the initial contract. The installment amount may not be increased more often than at the end of any consecutive twelve-month period of the loan term, and shall be sufficient to amortize the remaining principal balance within forty years from the initial date of the loan.
    1. Loans without amortization. Loans of any type that an association may make on an installment basis may also be made without amortization of principal; but interest shall be payable at least annually, and any such loan may be made for an amount not in excess of eighty percent of the appraised value of the property and for a term of not more than twenty years. The aggregate amount of such loans shall not, at any time, exceed an amount equal to twenty percent of the association's gross assets. In no case may an association provide a loan or loans under this subsection (3) to any one borrower which exceeds five percent of the association's gross assets.
    2. Construction loans. Loans may be made without full amortization of principal if made for the purpose of construction; but any such loan may be made for an amount not in excess of ninety percent of the appraised value of the property, excluding cost of land, and for a term of not more than one year.
    3. Sinking fund loans. Loans made under this plan shall be repayable by crediting to such loans the certificate value of pledged savings shares. Such borrowing members shall be required to carry such monthly periodical savings shares with the association as shall have a par value equal to the loan, and every share issued shall be subject to a lien for any advance made thereon or other lawful claims against the holder, and the payments on such pledged shares shall not be less than thirty-five cents per share per month. At the beginning of foreclosure of any mortgage or trust deed to an association securing such sinking fund loans, credit shall be allowed on the mortgage indebtedness for the value of any pledged shares held by the association as collateral for the loan, and the shares shall be cancelled at the conclusion of the foreclosure proceedings.
    4. Insured or guaranteed loans. An association may make such loans as may be insured or guaranteed by an agency of the federal or state government in such amounts and upon such terms as may be provided by the statutes and regulations affecting such loans, and the proviso in paragraph (a) of this subsection (3) shall not apply to such insured or guaranteed loans.
  4. Other loans. Any association operating under articles 40 to 46 of this title, notwithstanding anything to the contrary contained therein, may make any type or kind of loan and for any purpose that a federal savings and loan association at any time may be authorized to make by any law, rule, regulation, decision, or order which is or may be applicable to federal savings and loan associations. The commissioner, by rule or regulation duly adopted and applicable to all associations, may also authorize all associations organized and operating under articles 40 to 46 of this title to make any investment, in addition to those expressly permitted by said articles 40 to 46, which federal savings and loan associations are authorized to make by any laws, rules, regulations, decisions, or orders applicable to such federal savings and loan associations; but any rule or regulation adopted by the commissioner granting other investment authority shall, to the extent found by the commissioner to be applicable, be subject to the same limitations, restrictions, prohibitions, conditions, and provisions as are applicable in the case of federal savings and loan associations.
  5. Loans secured by first lien trust deeds or mortgages upon improved real estate shall not be made until a signed application for such loan has been submitted, nor until a signed appraisal has been submitted, nor until the loan has been approved by the board of directors or by a committee authorized by the board of directors. Appraisals may be made by any two of the association's directors, officers, employees, or attorneys or by an independent appraiser who is not a director, officer, employee, or attorney of the association; but no such officer, director, employee, or attorney shall act as an appraiser nor act on any committee approving a loan in which he has an interest either in the property tendered as security or in the sale of the property. The association shall furnish to each borrower, upon the closing of the loan, a loan settlement statement, indicating in detail the charges or fees such borrower has paid or obligated himself to pay to the association or to any other person in connection with such loan, and a copy of such statement shall be retained in the records of the association.
  6. Every real estate loan shall be evidenced by a proper instrument in writing obligating the borrower to repay the full amount of the loan and shall be secured by a mortgage or deed of trust constituting a first lien upon real estate securing the loan or, if an additional advance, by a deed of trust or mortgage properly providing for such additional advance. An encumbrance shall provide specifically for full protection to the association with respect to usual insurance risks, taxes, special assessments, other governmental levies, and maintenance and repairs and may provide for an assignment of rents and the appointment of a receiver upon any default.
  7. An association may pay taxes, special assessments, insurance premiums, repairs, and other charges for the protection of the real estate security. All such payments may be charged to a special account or may be added to the unpaid principal balance of the loan and shall be equally secured by the first lien on the real property. An association may require life insurance to be assigned as additional security upon any real estate loan; in such event, the association shall obtain a first lien upon such policy and may advance premiums thereon, and such premium advances may be added to the unpaid principal of the loan and shall be equally secured by the first lien on the security property.
  8. An association may require the borrower to pay monthly in advance, in addition to interest or interest and principal payments, a prorated portion of the estimated annual taxes, assessments, insurance premiums, and other charges upon the real estate securing the loan, or any of such charges, so as to enable the association to pay such charges as they become due from the funds so received. The amount of such monthly charges may be adjusted by the association as the need therefor arises. Every association shall keep an accurate record of the status of taxes, assessments, insurance premiums, and other charges on all real estate securing its loans and on all real and other property owned by it.
  9. Payment on the principal indebtedness of all loans on real estate security shall be applied directly to the reduction of such indebtedness. Payments on all monthly installment loans, other than construction loans, insured loans, and guaranteed loans, shall begin not later than sixty days after the date of the note. Insured loans and guaranteed loans may be repayable upon terms acceptable to the insuring or guaranteeing agency. An association may charge, for the privilege of prepayment in part or in full of a loan relating to an owner-occupied single family residence, if the original contract so provides, an amount not greater than ninety days' interest on the amount prepaid. An association may charge, for the privilege of prepayment in part or in full for any loan not otherwise specifically provided for in this subsection (9), an amount specified in the original contract. Any loan contract may be modified by the parties by written agreement and within the limitations of this section as the need therefor may arise.
  10. An association may make additional advances secured by the original encumbrance if the original loan contract makes proper provision therefor.
  11. An association may purchase loans of any type that it may make, and it may also purchase insured or guaranteed loans made on homes wherever located; but no loan may be purchased from an affiliated company or an officer, director, employee, or attorney of the association without prior approval of the board of directors.
  12. If additional collateral is encumbered on any loan as additional security, an association may invest in said loan for an amount in excess of the percentage provided in paragraph (c) of subsection (3) of this section. Said association may accept as such additional collateral any security it is authorized to invest in as set forth in section 11-41-114; but such encumbered additional security shall not increase the maximum percentage of said loan beyond the actual value of such additional security.
  13. An association may lend on the security of a first security interest on stock or a membership certificate issued to a tenant-stockholder or resident-member by a cooperative housing corporation organized under article 33.5 of title 38, C.R.S., and as defined by section 216 of the federal "Internal Revenue Code of 1986", as amended, and the assignment by way of security of the borrower's interest in the proprietary lease or right of tenancy in property covered by such cooperative housing corporation, if all of the real property owned by such corporation is located within the state and if such loan is made subject to the same limitations, restrictions, prohibitions, conditions, and provisions as are applicable in the case of federal savings and loan associations.

Source: L. 39: p. 245, § 18. CSA: C. 25, § 14(3). CRS 53: § 122-2-19. L. 55: p. 757, § 3. L. 61: p. 649, § 1. C.R.S. 1963: § 122-2-19. L. 65: p. 970, § 1. L. 69: p. 1015, § 8. L. 75: (4) amended, p. 373, § 2, effective June 26. L. 77: (3)(a) and (4) amended, p. 570, §§ 4, 5, effective July 1. L. 80: (13) added, p. 706, § 3, effective July 1. L. 81: (3)(a) and (3)(b) amended, p. 625, § 1, effective May 26. L. 83: (9) amended, p. 500, § 1, effective April 29. L. 2000: (13) amended, p. 1841, § 13, effective August 2. L. 2004: (1) amended, p. 149, § 55, effective July 1.

Cross references: For the "Internal Revenue Code of 1986", see title 26 of the United States Code.

11-41-119.5. Reporting of loans. (Repealed)

Source: L. 88: Entire section added, p. 457, § 2, effective July 1. L. 96: Entire section repealed, p. 30, § 3, effective March 13.

11-41-120. Branches. (Repealed)

Source: L. 33: p. 306, § 13. CSA: C. 25, § 16. CRS 53: § 122-2-20. C.R.S. 1963: § 122-2-20. L. 84: Entire section amended, p. 378, § 4, effective May 11. L. 91: Entire section amended, p. 666, § 6, effective May 31. L. 2003: Entire section amended, p. 1208, § 12, effective July 1. L. 2004: Entire section repealed, p. 137, § 17, effective July 1.

11-41-121. Merger, consolidation, and transfer.

  1. As used in this section, the word "association" shall include federal savings and loan associations incorporated under the "Home Owners' Loan Act of 1933".
    1. (1.5) (a) A domestic association may merge with a foreign association and, subject to the limitations specified in this subsection (1.5), notwithstanding any other provision of articles 40 to 46 of this title to the contrary, if the association proposing to merge with a domestic association is a foreign association, the foreign association shall, in addition to submitting all information pertinent to the evaluation of the application under this section that the commissioner may require together with all applicable fees, meet the following criteria:
      1. The foreign association seeking the merger shall have deposits that it may hold insured by the federal deposit insurance corporation or its successor in accordance with the provisions of section 11-41-117 ; and
      2. The foreign association shall be in compliance with the capital requirements specified in this subparagraph (II) as follows:
        1. (Deleted by amendment, L. 2004, p. 149 , § 56, effective July 1, 2004.)
        2. On and after January 1, 1993, the foreign association shall have a ratio of total capital to total assets of not less than six percent or the prevailing regulatory capital requirements established by the federal deposit insurance corporation or its successor, whichever is greater; and (II.5) Once a capital threshold is established in accordance with the provisions of subparagraph (II) of this paragraph (a) it shall be the prevailing standard for purposes of this section to be applied by the commissioner regardless of any reduction below the prevailing regulatory capital threshold requirement unless the general assembly authorizes the application of a lower standard; and
      3. The commissioner shall not approve any proposed merger under the provisions of this subsection (1.5) if the merger would result in the foreign association controlling at the time of the merger more than twenty-five percent of the aggregate of all deposits in all banks, savings and loan associations, federal savings banks, and other financial institutions located in Colorado, which are federally insured. For the purposes of this subsection (1.5), deposits shall be determined based upon the public reports most recently filed with the appropriate federal regulatory agency; and
      4. Except as otherwise provided in paragraph (b) of this subsection (1.5), the foreign association shall be domiciled or conduct its principal operations in a state which is both contiguous to Colorado and which also has laws that allow a domestic association to establish business operations in that state under conditions which are determined by the commissioner to be not more restrictive than those provided in articles 40 to 46 of this title. For the purpose of this subparagraph (IV), the place where an association "conducts its principal operations" means the place where the largest percentage of the aggregate deposits of the foreign association and all of its subsidiaries are held.
    2. On or after January 1, 1991, a foreign association seeking to merge with a domestic association may be domiciled or have its principal offices in any state without regard to its proximity to this state and without regard to the statutory conditions required by subparagraph (IV) of paragraph (a) of this subsection (1.5).
    3. Whenever a foreign association which meets the criteria established by this subsection (1.5) proposes to merge with a domestic association, the foreign association shall make an application for prior approval to the commissioner in such form and with such information that the commissioner may require, and such application shall be accompanied by a nonrefundable filing fee in such amount as determined by the commissioner. Upon receipt of a properly submitted application for merger, the commissioner shall proceed to investigate the application in accordance with the provisions of this section. The commissioner shall not grant approval of the merger until he is satisfied that the criteria imposed by this section have been met and that the merger is not contrary to the public interest.
    4. No foreign association may merge with a domestic association except in accordance with the provisions of this section, and no such merger may be completed without the approval of the commissioner.
    5. Any officer of a foreign association that merges with a domestic association pursuant to this section whose primary duty is managing the day-to-day operations of the Colorado offices of such foreign association shall be a resident of Colorado.
    6. Nothing in this section shall be construed to limit or otherwise curtail the powers of the commissioner with respect to supervisory mergers as established in section 11-44-110.5.
  2. Any two or more associations are authorized to merge and become incorporated in one body by transfer of all their assets and obligations upon such terms as set forth in an agreement of merger. The respective boards of directors of such associations, by a majority vote of each board, shall make or authorize to be made between such associations an agreement of merger.
  3. Copies of the proposed agreement of merger, signed by the president or vice-president of such association and verified by his affidavit and attested by the secretary or assistant secretary thereof with the seal of the association thereunto affixed, shall be submitted together with a fee in the amount established by the commissioner to the commissioner for his approval or disapproval, and he shall cause a certificate of approval or disapproval to be attached to said copies of the proposed agreement, one copy to be filed in the division and one returned to each of the associations.
  4. If approved by the commissioner, such approved agreement shall be presented to the members of each of the merging associations at special meetings called for the purpose of considering and voting upon such approved agreement; but, in the case of associations having permanent stock, only the holders of the permanent stock shall be entitled to any notice other than the published notice of such special meeting or to vote upon the agreement of merger. The complete agreement of merger, as adopted by the boards of directors and approved by the commissioner, shall be furnished each member entitled to vote on such merger at the time notice of such meetings, as required by section 11-41-123, is given. If at such meetings two-thirds of all votes of the members present in person or by proxy and entitled to vote on such merger are in favor of such approved agreement, the associations may proceed to merge in accordance therewith. The proceedings of such meetings shall be submitted to the commissioner for his approval in the same manner as required for the submission of the agreement by the boards of directors. Unless the agreement of merger fixes a later effective date thereof, the effective date of merger shall be the date upon which the commissioner accepts for filing the certified copies of the proceedings of the meetings of members adopting the approved agreement of merger.
  5. In the event any association involved in a proposed merger is a federal savings and loan association, the commissioner shall transmit to the federal office of thrift supervision or its successor, a copy of the proposed agreement of merger and shall not approve the agreement of merger unless and until he or she has been advised in writing by the federal office of thrift supervision or its successor that said office has no objection to the agreement.
  6. No such transfer shall prejudice the right of any creditor of any such association to have payment of his debt out of the assets and property thereof, nor shall any creditor be thereby deprived of or prejudiced in any right of action then existing against the officers or directors of said association for any neglect or misconduct, and the reorganized association shall be liable for all obligations to members of the associations existing prior to such consolidation.
  7. Upon the effective date of the merger, all of the assets and property of every kind and character, real, personal, and mixed and tangible and intangible, choses in action, rights and credits then owned by the merging associations or which inure to any of them, immediately by operation of law, and without any conveyance or transfer, and without any further act or deed, shall be vested in and become the property of the association into which the other associations are absorbed, which shall have, hold, and enjoy the same in its own right as fully and to the same extent as if the same were possessed, held, and enjoyed by the merging associations prior to such merger. Such association shall be a continuation of the entity and identity of the association into which the other associations are absorbed, and all of the rights and obligations of the merging associations shall remain unimpaired, and the association, at the time of the taking effect of such merger, shall succeed to all of the rights and obligations and duties and liabilities of the merging associations. All rights and remedies of creditors and all liens upon the property of the merging associations shall be preserved, and all debts, liabilities, and duties of the respective merging associations shall thenceforth attach to the association and may be enforced against it to the same extent as if such debts, liabilities, and duties had been incurred or contracted by it.
  8. All pending actions or other judicial proceedings to which any of the associations is a party shall not be deemed to have abated or to have discontinued by reason of such merger but may be pressed to final judgment, order, or decree in the same manner as if a merger had not been made; or the association resulting from such merger may be substituted as a party to such action or proceedings, and any judgment, order, or decree may be rendered for or against it which might have been rendered for or against any of the merging associations theretofore involved in such action or other judicial proceedings.

Source: L. 33: p. 306, § 12. CSA: C. 25, § 15. L. 39: p. 256, § 33. CRS 53: § 122-2-21. C.R.S. 1963: § 122-2-21. L. 69: p. 1016, § 9. L. 84: (3) amended, p. 378, § 5, effective May 11. L. 88: (1.5) added, p. 458, § 3, effective July 1. L. 2004: (1.5)(a)(I), (1.5)(a)(II)(A) to (1.5)(a)(II)(C), and (5) amended, pp. 149, 138, §§ 56, 18, effective July 1. L. 2005: IP(1.5)(a) amended, p. 763, § 17, effective June 1.

Editor's note: In 2000, subsection (1.5)(a)(II)(D), enacted in 1988, was renumbered as subsection (1.5)(a)(II.5) on revision.

Cross references: For the "Home Owners' Loan Act of 1933", see Pub.L. 73-42, codified at 12 U.S.C. sec. 1461 et seq.

11-41-122. Membership fees.

  1. Savings and loan associations shall not, directly or indirectly, charge any membership, admission, repurchase, withdrawal, or other fee, fine, penalty, or sum of money for the privilege of becoming, remaining, or ceasing to be a member of the association or for any other cause, except as provided in subsection (2) of this section; except that reasonable charges may be made to reflect the cost of servicing accounts and upon the making, transfer, or assumption of a loan and for defaults and prepayments of a loan and, after July 1, 1977, for the establishment and maintenance of any Keogh or individual retirement account. Reasonable notice of the amount of and conditions relating to such charges shall be given to affected members.
  2. Subject to such additional limitations, conditions, and provisions as may be promulgated in regulations of the commissioner, a savings and loan association required under a subpoena issued in a civil action to prepare disclosures of private records shall be reimbursed by the requesting party for such services as follows:
    1. For reproduction costs, including copies produced by printer or reproduction processes, the amount provided in section 13-32-104 (1), C.R.S. Costs of photographs, films, and other materials required shall be reimbursed at actual costs.
    2. For travel expenses incurred as a result of compliance, the amount provided in section 13-33-103 (1), C.R.S.;
    3. For personnel costs incurred as a result of compliance, the amount of two dollars and fifty cents for each quarter hour, or fraction thereof.

Source: L. 33: p. 354, § 8. CSA: C. 25, § 76. L. 39: p. 252, § 26. CRS 53: § 122-2-22. L. 59: p. 659, § 1. C.R.S. 1963: § 122-2-22. L. 77: Entire section amended, p. 572, § 1, effective June 4. L. 79: Entire section amended, p. 431, § 7, effective June 19. L. 83: Entire section amended, p. 494, § 3, effective July 1. L. 87: Entire section amended, p. 468, § 1, effective May 1. L. 2008: (2)(a) amended, p. 1881, § 15, effective August 5.

11-41-123. Directors and meetings.

  1. The corporate powers shall be exercised by a board of directors, which may be any number not less than five as shall be fixed by and stated in the articles of incorporation and which directors shall hold office until their successors are duly elected and qualified. At each annual meeting, the successors to the directors whose terms of office then expire shall be elected by the members entitled to vote at such time and place as shall be directed by the articles or bylaws of the association.
  2. Public notice of the time and place of holding such elections, and also of all special meetings of the members, shall be published at least once, not more than thirty days nor less than ten days prior to the date fixed for said meeting, in a newspaper of general circulation printed in the county where the principal office of said corporation is located, and, if there is no such newspaper, then in a newspaper printed in an adjoining county, and, with respect to any special meeting or any annual meeting to be held at a time or place other than as specified in the articles of incorporation or bylaws of the association, by delivering personally to each member or depositing in the post office at least thirty days before such meeting a copy of said notice, addressed to each member entitled to vote thereat, with the signature of the president or secretary printed thereon, stating the time and, in case of special meetings, the objects of said meeting; and no business shall be transacted at any special meeting except such as shall be mentioned in said notice; if any member fails to furnish the secretary with his correct post-office address, he shall not be entitled to separate notice.
  3. Whenever any notice is required to be given under the provisions of articles 40 to 46 of this title or under the provisions of the articles or bylaws of any association organized under the laws of Colorado, a waiver thereof in writing signed by the persons entitled to said notice, whether before, at, or after the time stated therein, shall be deemed equivalent to such notice.
  4. Members who are entitled to vote may vote either in person or by proxy at such meetings. Any number of members present in person or by proxy at a regular or special meeting of the members shall constitute a quorum unless otherwise specifically provided in articles 40 to 46 of this title. If a majority of the votes represented at any annual or special meeting are in favor of adjournment, such meeting may be adjourned for a period not to exceed sixty days at one adjournment. Each member entitled to vote shall be permitted to cast, in person or by proxy, one vote for each one hundred dollars, or fraction thereof, of the total certificate value of all his shares and stock. A borrowing member holding a membership certificate shall be permitted, as a borrower, to cast one vote and has such voting right in all cases where articles 40 to 46 of this title give such right to shareholders.
  5. A majority of all votes cast at any meeting of members shall determine any question unless otherwise specifically provided. The members who are entitled to vote at any meeting of the members shall be those of record on the books of the association at the end of the calendar month next preceding the date of the meeting of members, except those who have ceased to be members. In balloting for directors, members may vote for as many directors as are to be elected, or, in case the certificate of incorporation of the association permits cumulative voting, each member may cumulate his votes and give one candidate as many votes as the number of directors multiplied by the number of his votes or distribute them on the same principle among as many candidates as he may desire; and the person having the highest number of votes in consecutive order shall be declared elected. By the unanimous vote of all the members represented at such meeting, the secretary of the meeting may be authorized and instructed to cast one ballot for one or more of all the directors to be elected.
  6. When any vacancy occurs among the directors by death, resignation, or otherwise, it shall be filled for the remainder of the year by a majority vote of the remaining directors, unless otherwise provided by the bylaws of said association.

Source: L. 33: p. 307, § 14. CSA: C. 25, § 17. L. 39: p. 243, § 17. CRS 53: § 122-2-23. C.R.S. 1963: § 122-2-23. L. 69: p. 1016, § 10. L. 84: (1) amended, p. 379, § 6, effective May 11.

ANNOTATION

Courts generally will not interfere with management. In the absence of fraud, gross mismanagement, or ultra vires acts by those lawfully entrusted with the management of the corporation, under this section, neither a court of law nor equity has jurisdiction to interfere with or control the internal affairs or policy of the corporation. The rule applies to the setting aside of reserve funds and the declaration of dividends, and courts will not interfere with the discretion of directors in such matters unless they have acted fraudulently, capriciously, or unreasonably. Midland Sav. & Loan Co. v. Dunmire, 68 F.2d 249 (10th Cir. 1933).

11-41-124. Officers or directors to receive no commission.

No officer or director of any savings and loan association shall take or receive for himself, directly or indirectly, any commission, compensation, remuneration, gift, speculative interest, or other thing of value as an inducement to the making of any loan by the association or the purchase of any securities for the association or for the sale of any of the stock of the association.

Source: L. 33: p. 354, § 6. CSA: C. 25, § 74. CRS 53: § 122-2-24. C.R.S. 1963: § 122-2-24.

11-41-125. Loans to officers and directors.

No officer or director of any savings and loan association shall negotiate for or receive a mortgage loan from such association, except for the bona fide financing of the home of such officer or director, unless the commissioner has first approved such loan.

Source: L. 33: p. 358, § 16. CSA: C. 25, § 84. CRS 53: § 122-2-25. L. 55: p. 761, § 4. C.R.S. 1963: § 122-2-25.

11-41-126. Bonds of officers.

Every officer, employee, and agent handling or having custody or charge of funds or securities belonging to a savings and loan association, before entering upon the discharge of his duties, shall give a good and sufficient bond in such sum as may be fixed by the board of directors of any such association. Such bond shall be in such form and provide such coverage as the commissioner may direct and shall be made by a surety corporation authorized to do business in this state. The amount of such bond as to each person shall be subject to the approval of the commissioner. In lieu of individual bonds, a blanket bond covering all active officers, agents, and employees of such association may be executed, subject to approval by the commissioner. Every such bond shall be in force until ten days after notice to such commissioner that the same is to be cancelled.

Source: L. 33: p. 362, § 22. CSA: C. 25, § 90. L. 39: p. 255, § 31. CRS 53: § 122-2-26. C.R.S. 1963: § 122-2-26.

11-41-127. Violations - penalties.

  1. Any officer, director, agent, or employee of any savings and loan association who, directly or indirectly or by indirection, commits or causes the commission of theft, abstraction, or misapplication of any of the funds or securities or other property of or under the control of any savings and loan association, with intent to deceive, injure, cheat, wrong, or defraud any person, commits a class 5 felony and shall be punished as provided in section 18-1.3-401, C.R.S.
  2. Any person who willfully and knowingly violates section 11-41-103 and sections 11-41-124 to 11-41-126 is guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine of not more than five hundred dollars, or by imprisonment in the county jail for not more than ninety days, or by both such fine and imprisonment, and each such violation shall constitute a separate offense.

Source: L. 33: p. 362, § 23. CSA: C. 25, § 91. L. 39: p. 256, § 32. CRS 53: § 122-2-27. C.R.S. 1963: § 122-2-27. L. 77: (1) amended, p. 871, § 26, effective July 1, 1979. L. 89: (1) amended, p. 822, § 13, effective July 1. L. 2002: (1) amended, p. 1471, § 39, effective October 1.

Editor's note: The effective date for amendments made to this section by chapter 216, L. 77, was changed from July 1, 1978, to April 1, 1979, by chapter 1, First Extraordinary Session, L. 78, and was subsequently changed to July 1, 1979, by chapter 157, § 23, L. 79. See People v. McKenna, 199 Colo. 452 , 611 P.2d 574 (1980).

Cross references: For the legislative declaration contained in the 2002 act amending subsection (1), see section 1 of chapter 318, Session Laws of Colorado 2002.

ANNOTATION

Law reviews. For article, "Foreign Savings and Loan Associations Not Doing Business in Colorado", see 16 Colo. Law. 43 (1987).

11-41-128. Acknowledgments.

No notary public or other public officer qualified to take acknowledgments or proof of written instruments shall be disqualified from taking the acknowledgment or proof of an instrument in writing in which a savings and loan association is interested by reason of his employment by or his being a member or officer of the savings and loan association interested in such instrument.

Source: L. 33: p. 353, § 5. CSA: C. 25, § 73. L. 51: p. 216, § 4. CRS 53: § 122-2-28. C.R.S. 1963: § 122-2-28.

11-41-129. Amendment of articles of incorporation.

  1. Except as provided in section 11-41-130.5, if the holders of at least one-third of the outstanding voting stock or shares of any association request, in writing, the president or other head officer thereof to call a meeting of stockholders or shareholders of such association for the purpose of considering a proposed amendment to the articles of incorporation of such association, setting forth in such written request the substance of each proposed amendment, or if the board of directors of any association votes to submit to the stockholders or shareholders thereof a proposed amendment to the articles of incorporation of such association, the president or secretary of the association forthwith shall call a special meeting of the voting stockholders or shareholders of such association for the purpose of considering said proposed amendment for a time not less than thirty nor more than sixty days thereafter. In the event that the request for a meeting of stockholders or shareholders to consider a proposed amendment of the articles of incorporation is presented within ninety days prior to the date of the next annual meeting of the stockholders or shareholders of the association or in the event that the amendment is proposed by the board of directors of the association, the board of directors may cause such proposed amendment to be submitted for consideration at such next annual meeting, or at an adjourned session thereof, rather than at a special meeting of stockholders or shareholders called for such purpose.
  2. If at any such meeting the proposed amendment to the articles of incorporation of such association receives the affirmative vote of the majority, but in the case of associations having stock issued pursuant to section 11-42-107 two-thirds, or such greater amount as may be required by the articles of incorporation, or any amendment thereto, of the stock or shares of each class outstanding having voting power, such amendment shall be deemed adopted; but, where necessary for any association to increase its authorized permanent stock to conform to the requirements of said section 11-42-107, the affirmative vote of a majority of such stock or shares shall be required.
  3. If any proposed amendment to the articles of incorporation would alter or change the preference given to any one or more classes of shares or stock or would convert the stock into shares or shares into stock, the holders of each class of stock or shares so affected by said amendment shall be entitled to vote as a class upon such amendment, whether by the terms of the articles of incorporation such class is entitled to vote or not, and the affirmative vote of the holders of the majority, but in the case of associations having stock issued pursuant to section 11-42-107 two-thirds, of the amount of each class of stock or shares outstanding so affected by the amendment shall be necessary to the adoption thereof, as well as the affirmative vote of the holders of the majority, but in the case of associations having stock issued pursuant to section 11-42-107 two-thirds, of all classes of stock or shares outstanding having voting power.
  4. A certificate setting forth such amendment and the adoption thereof, signed by the president or vice-president of such association, verified by his affidavit, and attested by the secretary or assistant secretary thereof, with the seal of the association thereunto affixed, shall be submitted together with the fee established by the commissioner to the commissioner for his approval or disapproval, and, if he approves, he shall cause a certificate of approval to be attached to said proposed amendment, and then the same shall be filed in the same manner as articles of incorporation, and thereafter said amendment shall be in full force and effect to the same extent, except as provided in section 11-41-130.5, as if the same had been included in the original articles of incorporation. No amendment to the articles of incorporation shall be filed in the office of the secretary of state of the state of Colorado or received by the secretary of state unless a certificate of approval by the commissioner is attached thereto.
  5. Except as provided in section 11-41-130.5, any association organized under the laws of this state, from time to time, may amend its articles of incorporation by increasing or decreasing its authorized stock or shares or reclassifying the same, or by changing the number, designation, preference, relation, or participating or other special rights of shares or stock or the qualifications, limitations, or restrictions of such rights, or by changing its corporate title, or by making any other change or alteration in its articles of incorporation that may be desired, if such articles of incorporation, as so amended, contain only such provisions as it would be lawful and proper to insert in original articles of incorporation made at the time of making such amendment. Except as provided in section 11-41-130.5, no association by any amendment shall so change its articles of incorporation as to work a change in the objects or purposes for which the association was originally organized.

Source: L. 33: p. 310, § 15. CSA: C. 25, § 18. CRS 53: § 122-2-29. C.R.S. 1963: § 122-2-29. L. 65: p. 971, § 1. L. 69: p. 1017, § 11. L. 84: (1), (4), and (5) amended, p. 379, § 7, effective May 11.

11-41-130. Reorganization.

  1. The board of directors of any association, at a meeting called for that purpose, may adopt a plan of reorganization of the association. Two copies of the proposed plan of reorganization, signed by the president or vice-president of such association, verified by his affidavit, and attested by the secretary or assistant secretary thereof, with the seal of the association thereunto affixed, shall be submitted to the commissioner for his approval or disapproval, and he shall cause a certificate of approval or disapproval to be attached to said proposed plan, one copy to be filed in the division and one returned to the association. If approved by the commissioner, such approved plan shall be presented to the members at a special meeting called for the purpose of considering and voting upon such approved plan. The complete plan of reorganization, as adopted by the board of directors and approved by the commissioner, shall be furnished each member at the time notice of such meeting, as required by section 11-41-123, is given. If at such meeting two-thirds of all votes of the members present in person or by proxy are in favor of such approved plan, the association may proceed to reorganize in accordance therewith.
  2. The proceedings of such meeting shall be submitted to the commissioner for his approval in the same manner as required for the submission of the plan by the board of directors. Unless the plan of reorganization fixes a later effective date thereof, the effective date of reorganization shall be the date upon which the commissioner accepts for filing the certified copies of the proceedings of the meetings of members adopting the approved plan of reorganization.
  3. The privilege of reorganization is likewise extended to savings and loan associations which are in the course of voluntary or involuntary liquidation.
  4. In order that equity may be done for all members of such association in the event of reorganization, all pending withdrawal applications shall be cancelled.
  5. In addition to all other lawful provisions, the plan may provide for the exchange of shares or stock or both in the association for shares or stock or both of the same or a different class of the reorganized association. Without limiting the methods by which an association may reorganize, any association may:
    1. Provide for reorganization under the existing name of the association or under a different name;
    2. Provide for segregation by division, on the records of the association or on the records of any reorganized association, of any part of its assets and liabilities, including division of the certificate value of the shares or stock or both, and of any reserves created to absorb losses;
    3. Provide for segregation by division, between the association and a reorganized association or between two reorganized associations, of any part of its assets and liabilities, including division of the certificate value of the shares or stock or both and of any reserves created to absorb losses;
    4. Fix the time prior to which notice of withdrawal of such shares so issued in exchange for shares in the associations being reorganized shall not be given.
  6. The reorganization of such association shall not prejudice the right of any creditor of any such association to have payment of his debt out of the assets and property thereof, nor shall any creditor be thereby deprived of or prejudiced in any right of action then existing against the officers or directors of said association for any neglect or misconduct. All obligations to any such prior association shall inure to the benefit of the reorganized association and shall be enforceable by it and in its name, and demands, claims, and rights of action against any such association may be enforced against it as fully and completely as they might have been enforced theretofore; and all deeds, notes, mortgages, contracts, judgments, transactions, and proceedings whatsoever theretofore made, received, entered into, carried on, or done by such association before such reorganization shall be as good, valid, and effectual in law as though such association had never been reorganized.

Source: L. 33: p. 365, § 28. CSA: C. 25, § 96. L. 39: p. 258, § 34. CRS 53: § 122-2-30. C.R.S. 1963: § 122-2-30.

11-41-130.5. Cessation of business as an association - amendment of articles.

  1. Notwithstanding any provision of this article to the contrary, in connection with the sale of all or a substantial part of its assets, the board of directors of any savings and loan association may propose an amendment to its articles of incorporation to amend the objects and purposes to conform to those authorized in the "Colorado Business Corporation Act", articles 101 to 117 of title 7, C.R.S., and to make such other amendments authorized by and not inconsistent with the provisions of article 110 of title 7, C.R.S. Such proposed amendments shall be submitted to the members or, if the savings and loan association has permanent stock, to the stockholders of said association for their approval. Upon approval, said amendments shall be submitted to the commissioner, together with a plan pursuant to subsection (2) of this section, for his approval.
  2. The amendments to a savings and loan association's articles of incorporation shall be accompanied by a plan for the cessation of the conduct of a savings and loan association in the state.
    1. The commissioner shall approve a plan only if:
      1. He determines that an association has paid or has made provision through an assumption agreement or otherwise for its known and unclaimed liabilities to its depositors and account holders;
      2. The amended articles of incorporation delete the words "savings and loan association"; and
      3. The amended articles of incorporation expressly prohibit the conduct of a savings and loan or banking business in Colorado by the corporation.
    2. In approving a plan, the commissioner may impose such terms and conditions as he deems necessary to protect the depositors, account holders, stockholders, members, and creditors of the savings and loan association.
  3. Upon approval of a plan and the amendments to the articles of incorporation by the commissioner pursuant to this article and upon the filing of such amendments, along with the applicable filing fees with the secretary of state as provided by section 11-41-129 (4), a corporation shall continue in existence pursuant to the "Colorado Business Corporation Act", articles 101 to 117 of title 7, C.R.S., but said corporation shall cease to be a savings and loan association or an association. The corporation's certificate of authority as a savings and loan association or an association shall automatically be cancelled, without further action, and the corporation shall be deemed to be organized pursuant to the "Colorado Business Corporation Act", articles 101 to 117 of title 7, C.R.S., and shall cease to be subject to the provisions of the "Savings and Loan Association Law", articles 40 to 46 of this title.

Source: L. 84: Entire section added, p. 380, § 8, effective May 11. L. 93: (1) and (4) amended, p. 861, § 29, effective July 1, 1994.

11-41-131. Dissolution.

  1. Any domestic association may elect to abandon its certificate of authority, liquidate its affairs, and dissolve as provided in this section. The affirmative vote of at least a majority of the directors must be cast in favor of such proposal at a special meeting thereof. A certified copy of such action shall be furnished to the commissioner, who shall forthwith examine said association, and, if he determines that such association is solvent and that it is to the best interests of the members that such liquidation be accomplished in the manner provided in this section, he shall certify his approval thereto. Upon the granting of such approval, a special meeting of all members entitled to vote shall be called in the manner provided by section 11-41-123. If a majority vote of all such members of the association is cast in favor of the proposal to liquidate and ultimately dissolve such association under the provisions of this section, such proposal shall be deemed adopted. A certified copy of all proceedings taken prior to and at such meeting shall be filed with the commissioner, who shall determine whether or not such proceedings have been conducted in accordance with law. If the commissioner finds that such proceedings are legal and proper, he shall certify his approval thereon and authorize said association to proceed with the liquidation in the manner provided in this section.
  2. The board of directors shall act as trustees for liquidation, and shall proceed as speedily as may be practical to wind up the affairs of the association, and, to the extent necessary, shall exercise all the powers granted by articles 40 to 46 of this title to active associations and to the commissioner in the case of departmental liquidation, and, without prejudice to the generality of such authority, may carry out executory contracts, enter into new contracts, borrow money, mortgage or pledge property, sell assets at public or private sale, make and receive conveyances in the corporate name, lease real estate, settle or compromise claims, commence and prosecute all actions and proceedings necessary to enable liquidation, distribute assets either in cash or in kind among members according to their respective rights, after paying or adequately providing for the payment of liabilities, and do and perform all acts necessary or expedient to the winding up of the association. The board of directors has power to exchange or otherwise dispose of or place in trust all or any part of the assets upon such terms and conditions and for such considerations as may be deemed reasonable or expedient and may distribute such considerations among the members in proportion to their interest therein. In the absence of fraud, any determination of value made by said board of directors for any such purpose shall be conclusive.
  3. The association, during the liquidation of the assets of the association, shall be subject to the supervision of the commissioner, and shall pay such fees and assessments as are provided for in articles 40 to 46 of this title in the case of active associations and shall report the progress of such liquidation to the commissioner as he may require. Upon completion of liquidation, a final report and accounting of the affairs of the association shall be made to the commissioner. Upon the approval of such report by the commissioner, the board of directors, without the necessity of further action by the members of the association, shall proceed to dissolve such association in the manner provided by law in the case of general corporations.
  4. Nothing in this section shall prejudice the rights of the commissioner to take possession of any association, under the authority vested in him by the provisions of section 11-44-110, upon determining that such procedure is to the best interest of the members.

Source: L. 39: p. 260, § 35. CSA: C. 25, § 98. CRS 53: § 122-2-31. C.R.S. 1963: § 122-2-31.

11-41-132. Escheat proceedings.

  1. If the affairs of an association have been voluntarily liquidated as provided in articles 40 to 46 of this title and any liquidating dividends remain unclaimed after the approval of the final report of liquidation, the trustees for liquidation may transfer such unclaimed liquidating dividends to the commissioner. In case of such transfer or in case an association has been liquidated by the commissioner and any liquidating dividends remain unclaimed six years after the approval of the final report of such liquidation, the commissioner may elect to pay such unclaimed liquidating dividends to the state treasurer.
  2. Due notice of such election shall be given by publication once a week for four successive weeks in some newspaper of general circulation in the county in this state where the last principal place of business of such association was located. Within fifteen days after the first publication, the commissioner shall mail a copy of the notice to each person whose liquidating dividends are to be paid to the state treasurer at the last address appearing on the books of the association.
  3. After thirty days from the date of the last publication, the commissioner shall pay to the state treasurer any such liquidating dividends in his possession, less the costs of publication and mailing, and shall file with the state treasurer the affidavit of publication by the publisher and the affidavit of mailing by the commissioner, showing the dates of such publications and mailing. The state shall be answerable for such funds, without interest, anytime within twenty-one years after the same have been paid into the treasury, to such persons as shall be legally entitled thereto. After the lapse of twenty-one years from the time any such moneys have been paid into the state treasury, no claim therefor having been made and established by any person entitled thereto, said moneys shall become the property of the state and shall be transferred to the general fund.
  4. Payment to the state treasurer shall discharge the commissioner from any further liability or responsibility for such moneys.

Source: L. 51: p. 216, § 5. CSA: C. 25, § 99. CRS 53: § 122-2-32. C.R.S. 1963: § 122-2-32.

11-41-133. Acquisition of majority control over an existing association - definitions.

  1. As used in this section, unless the context otherwise requires:
    1. "Entity" means a person or group of persons.
    2. "Person" means an individual, corporation, partnership, trust, or similar organization.
    3. An entity shall be deemed "to have control" of an association if said entity:
      1. Directly or indirectly, or acting in concert with one or more persons, owns, controls, holds with the power to vote, or holds proxies representing more than twenty-five percent of the permanent stock of such association;
      2. Controls in any manner the election of a majority of the directors of such association; or
      3. Exercises a controlling influence over the management or policies of such association.
    1. Whenever an entity proposes to take an action or conduct an activity which would cause such entity to have control of that association, the entity shall first make application to the commissioner for a certificate of approval of such action or activity.
    2. The application shall be in such form and provide such information as the commissioner may require by rule or regulation and shall be accompanied when submitted by a nonrefundable filing fee in the amount established by the commissioner.
  2. After receipt of an application, the commissioner shall make an investigation and shall issue the certificate of approval only after he has determined:
    1. That the controlling entity is qualified by character, experience, and financial responsibility to control the association in a legal and proper manner; and
    2. That the interests of the public generally will not be jeopardized by the proposed action or activity causing the entity to have control of the association.
  3. This section shall not apply to the acquisition of:
    1. Directors' voting proxies acquired in the normal course of business as a result of a proxy solicitation in conjunction with a stockholders' meeting;
    2. Stock held in a fiduciary capacity unless the acquiring person has sole discretionary authority to exercise voting rights with respect thereto;
    3. Stock acquired in securing or collecting a debt contracted in good faith; except that it shall apply two years after the date of acquisition; or
    4. Stock acquired by an underwriter in good faith and without any intent to evade the purpose of this section if the shares are held only for such reasonable period of time as will permit the sale thereof.
  4. When the commissioner has not acted upon a completed application within sixty days of receipt thereof, it shall be considered approved.
    1. A domestic association may, subject to any applicable regulations of the federal deposit insurance corporation or its successor, invest in an association that is domiciled or conducts its principal operations in another state and acquire control of such association, and notwithstanding any other provision of articles 40 to 46 of this title to the contrary, if the entity proposing to acquire control of a domestic association is a foreign association, the foreign association shall, in addition to submitting all information pertinent to the evaluation of the application under this section that the commissioner may require together with all applicable fees, meet the following criteria:
      1. The foreign association seeking the acquisition shall have deposits that it may hold insured by the federal deposit insurance corporation or its successor in accordance with the provisions of section 11-41-117 ; and
      2. The foreign association shall be in compliance with the capital requirements specified in this subparagraph (II) as follows:
        1. (Deleted by amendment, L. 2004, p. 150 , § 57, effective July 1, 2004.)
        2. On and after January 1, 1993, the foreign association shall have a ratio of total capital to total assets of not less than six percent or the prevailing regulatory capital requirements established by the federal deposit insurance corporation or its successor, whichever is greater; and (II.5) Once a capital threshold is established in accordance with the provisions of subparagraph (II) of this paragraph (a) it shall be the prevailing standard for purposes of this section to be applied by the commissioner regardless of any reduction below the prevailing regulatory capital threshold requirement unless the general assembly authorizes the application of a lower standard; and
      3. The commissioner shall not approve any application for acquisition under this subsection (6) if such acquisition would result in the foreign association controlling at the time of the acquisition more than twenty-five percent of the aggregate of all deposits in all banks, savings and loan associations, federal savings banks, and other financial institutions located in Colorado, which are federally insured. For the purposes of this subsection (6), deposits shall be determined based upon the public reports most recently filed with the appropriate federal regulatory agency; and
      4. Except as provided in paragraph (b) of this subsection (6), the foreign association shall be domiciled or conduct its principal operations in a state which is both contiguous to Colorado and which also has laws that allow a domestic association to establish business operations in that state under conditions which are determined by the commissioner to be not more restrictive than those provided in articles 40 to 46 of this title. For the purpose of this subsection (6), the place where an association "conducts its principal operations" means the place where the largest percentage of the aggregate deposits of the foreign association and all of its subsidiaries are held.
    2. On or after January 1, 1991, a foreign association seeking to acquire control of a domestic association may be domiciled or have its principal offices in any state without regard to its proximity to this state and without regard to the statutory conditions required by subparagraph (IV) of paragraph (a) of this subsection (6).
    3. Whenever a foreign association which meets the criteria established by this subsection (6) proposes to acquire control of a domestic association, the foreign association shall make an application for prior approval to the commissioner in such form and with such information that the commissioner shall require, and such application shall be accompanied by a nonrefundable filing fee in such amount as determined by the commissioner. Upon receipt of a properly submitted application to acquire control of a domestic association, the commissioner shall proceed to investigate the application in accordance with the provisions of this section. The commissioner shall not grant approval of the merger until he is satisfied that the criteria imposed by this section have been met and that the acquisition is not contrary to the public interest.
    4. No foreign association may acquire control of a domestic association except in accordance with the provisions of this section, and no such acquisition shall be completed without a certificate of approval issued by the commissioner.
    5. A domestic association which is acquired in accordance with the provisions of this section may continue to operate as a domestic association subject to the provisions of articles 40 to 46 of this title. Any officer of a foreign association that acquires a domestic association pursuant to this section whose primary duty is managing the day-to-day operations of the Colorado offices of such foreign association shall be a resident of Colorado.

Source: L. 83: Entire section added, p. 489, § 2, effective April 26. L. 84: (2)(b) amended, p. 381, § 9, effective May 11. L. 88: (6) added, p. 459, § 4, effective July 1. L. 89: (2)(a), (3)(a), and (3)(b) amended, p. 611, § 5, effective April 19. L. 2004: IP(6)(a), (6)(a)(I), and (6)(a)(II)(A) to (6)(a)(II)(C) amended, p. 150, § 57, effective July 1.

Editor's note: In 2000, subsection (6)(a)(II)(D), enacted in 1988, was renumbered as subsection (6)(a)(II.5) on revision.

11-41-134. Indemnification and personal liability of directors, officers, employees, and agents - legislative declaration.

  1. [ Editor's note: This version of subsection (1) is effective until July 1, 2020.] The savings and loan association shall have the same powers, rights, and obligations and shall be subject to the same limitations as apply to corporations for profit as set forth in article 109 of title 7, C.R.S. Savings and loan association directors, officers, employees, and agents shall have the same rights as directors, officers, employees, and agents, respectively, of corporations for profit as set forth in article 109 of title 7, C.R.S. Savings and loan association directors and officers shall have the benefit of the same limitations on personal liability for any injury to person or property arising out of a tort as set forth in section 7-108-402 (2), C.R.S., for directors and officers, respectively, of corporations for profit. Any reference in said sections to shareholders shall be construed to refer to stockholders for the purposes of this section.

    (1) [ Editor's note: This version of subsection (1) is effective July 1, 2020. ] The savings and loan association has the same powers, rights, and obligations and is subject to the same limitations as apply to corporations for profit as set forth in article 109 of title 7. Savings and loan association directors, officers, employees, and agents have the same rights as directors, officers, employees, and agents, respectively, of corporations for profit as set forth in article 109 of title 7. Savings and loan association directors and officers have the benefit of the same limitations on personal liability for any injury to person or property arising out of a tort as set forth in section 7-108-403, for directors and officers, respectively, of corporations for profit. Any reference in said sections to shareholders shall be construed to refer to stockholders for the purposes of this section.

    1. The general assembly hereby finds, determines, and declares that the following is enforceable and in conformity with the public policy of this state, as expressed in articles 40 to 46 of this title:
      1. Any insurance policy, form, contract, endorsement, or certificate in effect or issued on or after April 30, 1993, which provides insurance coverage to directors or officers, or both, of a savings and loan association but which does not grant coverage or which excludes coverage for claims made by any depository insurance organization or any other state or federal corporation, organization, or entity acting as receiver, conservator, or liquidator of such savings and loan association, whether in its own name or in behalf of any other person or entity; or
      2. Any fidelity bond, financial institution bond, or depository institution bond in effect or issued on or after April 30, 1993, that provides for termination of such bond upon the taking over of the savings and loan association by a receiver or other liquidator or by state or federal officials.
    2. No provision of articles 40 to 46 of this title shall be construed to contravene or modify the expressed public policy set forth in this subsection (2).

Source: L. 87: Entire section added, p. 371, § 16, effective May 20. L. 93: Entire section amended, p. 620, § 4, effective April 30; (1) amended, p. 862, § 30, effective July 1, 1994. L. 2019: (1) amended, (SB 19-086), ch. 166, p. 1965, § 68, effective July 1, 2020.

Editor's note:

  1. Amendments to this section by House Bill 93-1154 and House Bill 93-1261 were harmonized.
  2. Section 72 of chapter 166 (SB 19-086), Session Laws of Colorado 2019, provides that the act changing this section applies to conduct occurring on or after July 1, 2020.

ARTICLE 42 SHARES AND STOCK

Section

11-42-101. Investment and savings shares.

  1. Every association may issue and sell an unlimited number of shares of the following types, as described in this section:
    1. "Investment shares" are shares on which the full payment has been made and on which dividends shall be paid in cash.
    2. "Savings shares" are shares on which an initial payment has been made, and upon which further payments are to be made at such times and in such amounts as are optional with the member, and on which dividends shall be credited unless otherwise agreed that all or part shall be paid in cash.
    3. "Short-term savings shares" are shares which are to be withdrawn in less than twenty-four months from the date on which such share account is opened, or a share account established for the purpose of accumulating funds to pay taxes or insurance premiums, or both, in connection with a loan on the security of a lien on real estate. No association shall be required to distribute earnings on short-term savings shares.

Source: L. 33: pp. 312-317, §§ 1-6. CSA: C. 25, § 19. L. 39: p. 248, § 19. L. 43: p. 202, § 4. CRS 53: § 122-3-1. L. 55: p. 761, § 5. L. 59: p. 659, § 2. C.R.S. 1963: § 122-3-1.

ANNOTATION

A certificate of deposit payable to the order of depositor on demand makes depositor a creditor of a savings and loan association, not a member. Dollar Bldg. & Loan Ass'n v. Shields, 93 Colo. 480 , 27 P.2d 485 (1933).

11-42-102. Preliminary requirements.

Shares may be purchased and held absolutely by or in trust for any person, partnership, association, corporation, or trustee. Certificates shall be issued to each purchaser of shares at the time of making full or initial payment thereon, and at the same time share account books shall be issued to purchasers of savings shares.

Source: L. 33: pp. 312-317, §§ 1-6. CSA: C. 25, § 19. L. 39: p. 248, § 19. L. 43: p. 202, § 4. CRS 53: § 122-3-2. L. 55: p. 761, § 6. C.R.S. 1963: § 122-3-2.

11-42-103. Contents of certificate - accounts.

A share account shall be kept on the books of the association with each certificate holder showing the aggregate of all payments made, plus dividends paid in cash or credited. The aggregate of all payments made, plus dividends credited, less withdrawals, shall be termed the "certificate value" or "withdrawal value" of the account.

Source: L. 33: pp. 312-317, §§ 1-6. CSA: C. 25, § 19. L. 39: p. 248, § 19. L. 43: p. 202, § 4. CRS 53: § 122-3-3. L. 55: p. 762, § 7. C.R.S. 1963: § 122-3-3.

ANNOTATION

A mutual association cannot contract as to maturity date of its stock. A mutual building and loan association has no power to contract with a shareholder that his stock will mature in a definite time. People's Bldg. & Loan Ass'n v. Purdy, 20 Colo. App. 287, 78 P. 465 (1904).

11-42-104. Participating and limited dividend shares.

Shares may be issued to participate fully or to a limited extent in the net earnings of the association if the articles of incorporation so provide, and such participation shall be specified in the body of the certificate. All shares participating fully in net earnings shall be entitled to an equal rate of dividend, if earned, as fixed by the board of directors. Shares participating to a limited extent shall be entitled to such rate of dividend, if earned, as fixed by the board of directors for the semiannual periods ending June thirtieth and December thirty-first of each year; but, if the rate is decreased, the shareholders thus affected shall be given written notice of the new rate, within thirty days after date of declaration, by mailing such notice to their last known addresses.

Source: L. 33: pp. 312-317, §§ 1-6. CSA: C. 25, § 19. L. 39: p. 248, § 19. L. 43: p. 202, § 4. CRS 53: § 122-3-4. L. 55: p. 762, § 8. C.R.S. 1963: § 122-3-4.

ANNOTATION

Directors must act reasonably and honestly in declaring dividends. A holder of a certificate is entitled only to the face value of the certificate plus the regular dividend and such extra dividends as the directors, acting honestly and reasonably and not fraudulently or capriciously, declare. Midland Sav. & Loan Co. v. Dunmire, 68 F.2d 249 (10th Cir. 1933).

11-42-105. Responsibility for losses - extent.

The members of an association shall not be responsible for any losses which its invested capital is not sufficient to satisfy, except to the extent provided in sections 11-42-108 to 11-42-110, and the shares shall not be subject to assessment, nor shall certificate holders be liable for any unpaid installment on their shares. Except as provided in article 47 of this title, no preference between certificate holders shall be created with respect to the distribution of assets upon voluntary or involuntary liquidation, dissolution, or winding up of an association. Shareholders in mutual associations shall participate in the distribution of all assets, and in permanent stock associations they shall participate first, but only to the extent of their share investments.

Source: L. 33: pp. 312-317, §§ 1-6. CSA: C. 25, § 19. L. 39: p. 248, § 19. L. 43: p. 202, § 4. CRS 53: § 122-3-5. C.R.S. 1963: § 122-3-5. L. 75: Entire section amended, p. 406, § 2, effective January 1, 1976.

11-42-106. Transfer of shares.

Share certificates are transferable on the books of the association by the holder thereof, in person or by a duly authorized attorney, upon surrender of the certificate properly endorsed. The association may treat the holder of record thereof as the owner for all purposes without being affected by any notice to the contrary until the certificate is transferred on the books of the association. A transfer charge of not to exceed fifty cents may be charged for each certificate transferred on its books.

Source: L. 33: pp. 312-317, §§ 1-6. CSA: C. 25, § 19. L. 39: p. 248, § 19. L. 43: p. 202, § 4. CRS 53: § 122-3-6. L. 55: p. 762, § 9. C.R.S. 1963: § 122-3-6.

11-42-107. Permanent stock.

  1. Permanent stock shall be of one class only, shall have the full voting rights, and shall have a par value of not less than one dollar per share; and the proceeds thereof, to the extent of such par value, shall be set apart, shall be nonwithdrawable, and shall be a reserve to absorb losses after all surplus, undivided profits, and other reserves available for losses have been depleted.
  2. Any paid-in surplus may be made available for payment of organization and initial operating expenses, or may be credited to surplus, or to the contingent reserve, or to the federal insurance reserve, or may be transferred to permanent stock as a stock dividend and prorated to the holders of permanent stock. An association shall not issue permanent stock for a consideration other than cash or for a price less than the par value thereof, but, with the approval of the commissioner, stock may be issued for a consideration other than cash in connection with mergers, consolidations, or transfers, and, when fully paid, the stock shall be kept unimpaired to the extent of its par value.
  3. An association may declare and distribute stock dividends from net earnings, or surplus, or undivided profits. With the prior consent of the commissioner, the stock of an association may be reduced by resolution of the board of directors approved by vote or written consent of the holders of a majority of the outstanding stock of such association to such amount as the commissioner shall approve, and any such reduction shall be credited to the contingent reserve account and shall not be available for dividends to stockholders or shareholders; but any reduction in the amount of permanent stock is subject to the provisions of this section and section 11-41-105 fixing minimum permanent stock requirements.
  4. Except as may be required by the commissioner pursuant to section 11-41-105, no association shall be required to maintain permanent stock in excess of five hundred thousand dollars; however, the total amount of permanent stock subscribed to and paid for shall not at any time, until the maximum of five hundred thousand dollars has been reached, be less than at least the following percentages of the aggregate certificate value of the outstanding invested capital (excluding permanent stock) standing on the records of the association as of January 1 of the current year: Three percent on five million dollars; two percent on five million one dollars through seven million five hundred thousand dollars; one percent on all over seven million five hundred thousand dollars.
    1. As used in this subsection (5), the term "impaired" means a condition in which an association is unable to meet current obligations as they mature.
    2. Cash dividends may be declared and paid on permanent stock unless an association is in an impaired condition or the payment thereof would cause the association's assets to be impaired. Nothing in this subsection (5) shall affect subsection (1) of this section, section 11-42-111 (1) or (7), or other provisions of articles 40 to 47 of this title, restricting the payment of dividends on permanent stock. Subject to the provisions of articles 40 to 47 of this title, permanent stock shall be entitled to such rate of dividends, if earned, as fixed by the board of directors.
    3. Any association which intends to declare a cash dividend on permanent stock shall provide a minimum of thirty days' written notice of its intention to the commissioner.
  5. Directors' and stockholders' meetings shall be called, advertised, and held in accordance with section 11-41-123, but the holders of permanent stock shall have exclusive voting rights.

Source: L. 33: p. 317, § 1. CSA: C. 25, § 25. L. 43: p. 204, § 5. L. 51: p. 212, § 2. CRS 53: § 122-3-7. L. 55: p. 762, § 10. L. 59: p. 660, § 3. L. 61: p. 649, § 2. C.R.S. 1963: § 122-3-7. L. 83: (4) and (5) amended, p. 490, § 3, effective April 26. L. 85: (5)(c) added, p. 399, § 1, effective May 24. L. 2006: (4) amended, p. 1491, § 17, effective June 1.

11-42-108. Assessment to restore impaired permanent stock.

  1. Stockholders, after their stock has been fully paid, are not liable to creditors or for assessments upon their stock issued on or after July 1, 1981, except as provided by this section. If the commissioner, as a result of any examination or from any report made to him, finds that the permanent stock of any association is impaired, he shall notify the association that such impairment exists. In the event the amount of the impairment, as determined by the commissioner, is questioned by the association, then, upon application filed within ten days, the value of the assets in question shall be determined by appraisals made by independent appraisers acceptable to the commissioner and the association.
  2. If the bylaws of an association expressly give the directors the authority to levy an assessment on permanent stock, then, subject to any limitations contained in the bylaws, the directors may levy and collect assessments upon permanent stock. The directors of an association which has received such notice may levy a pro rata assessment upon the permanent stock thereof to make good such impairment and shall cause notice of the finding of the commissioner and such levy to be given in writing to each stockholder of such association and the amount of assessment which the stockholder must pay for the purpose of making good such impairment; but, in lieu of making such assessment, the impairment may be made good, without the consent of the commissioner, by the reduction of the permanent stock in the manner provided in section 11-42-107.

Source: L. 33: p. 317, § 1. CSA: C. 25, § 25. L. 43: p. 204, § 5. L. 51: p. 212, § 2. CRS 53: § 122-3-8. C.R.S. 1963: § 122-3-8. L. 81: Entire section amended, p. 623, § 3, effective May 18.

ANNOTATION

Compliance with this section is mandatory. Upon notification that the capital of a savings and loan association is impaired, compliance with this statute is mandatory. Equity Sav. & Loan Ass'n v. Great W. Mtgs., Inc., 31 Colo. App. 178, 501 P.2d 483 (1972).

The directors have two alternatives: They can question the amount of the impairment within 10 days of notification, or they can forego questioning the impairment and levy a pro rata assessment. Equity Sav. & Loan Ass'n v. Great W. Mtgs., Inc., 31 Colo. App. 178, 501 P.2d 483 (1972).

11-42-109. Sale of delinquent stock.

  1. If any stockholder refuses or neglects to pay the assessment specified in such notice within sixty days from the date of mailing, the directors of such association shall have the right to sell to the highest bidder at public auction any part or all of the stock necessary to pay the assessment of such stockholder, after giving a previous notice of such sale for ten days in a newspaper of general circulation published in the county where the principal office of such association in this state is located, and a copy of such notice of sale shall also be served on such stockholder by mailing a copy of the notice to his last known address ten days before the day fixed for such sale, or such stock may be sold at a private sale and without public notice; but, before making such private sale thereof, an offer in writing shall first be obtained and a copy thereof served upon the owner of record of the stock to be sold by mailing a copy of such offer to his last known address, and, if, after service of such offer, such owner still refuses or neglects to pay such assessment within thirty days from the time of the service of such offer, the directors may accept the offer and sell such stock to the person making such offer or to any other person making a larger offer than the amount named in the offer submitted to the stockholder, but such stock in no event shall be sold for less than the amount of such assessment so called for and the expense of the sale.
  2. Out of the proceeds of the stock sold, the directors shall pay the amount of assessment levied thereon and the necessary cost of sale, and the balance, if any, shall be paid to the person whose stock has been sold. A sale of stock as provided in this section shall effect an absolute cancellation of the outstanding certificate evidencing the stock sold and shall make the same null and void, and a new certificate shall be issued by the association to the purchaser thereof.

Source: L. 33: p. 317, § 1. CSA: C. 25, § 25. L. 43: p. 204, § 5. L. 51: p. 212, § 2. CRS 53: § 122-3-9. C.R.S. 1963: § 122-3-9.

ANNOTATION

Shares may be sold of stockholder who refuses to pay assessment. Where a stockholder refuses to pay an assessment properly levied under this statute, the corporation can sell some of that stockholder's shares in order to raise the amount of the assessment. Equity Sav. & Loan Ass'n v. Great W. Mtgs., Inc., 31 Colo. App. 178, 501 P.2d 483 (1972).

Issue of directors' negligence cannot be used as a defense to an assessment. The fact, if it be a fact, that the board of directors was negligent or acted improperly in causing the corporation to be in an impaired capital position did not constitute a basis for stopping the sale of stock of those stockholders who refused to pay the stock assessment, where the issue was not before the court, but rather is an issue which would be the basis of a separate independent action. Equity Sav. & Loan Ass'n v. Great W. Mtgs., Inc., 31 Colo. App. 178, 501 P.2d 483 (1972).

11-42-110. Forfeiture of delinquent stock.

  1. If no bid or offer is received equal to or more than the amount of such assessment and the expense of sale, such stock shall be declared forfeited to the association and accepted in full satisfaction of such assessment, and such stock shall not be reissued except in accordance with a permit thereafter obtained from the commissioner pursuant to section 11-42-112.
  2. The proceeds from any assessment, less the cost of any sales and any forfeiture of delinquent stock, shall be credited to the contingent reserve account.

Source: L. 33: p. 317, § 1. CSA: C. 25, § 25. L. 43: p. 204, § 5. L. 51: p. 212, § 2. CRS 53: § 122-3-10. C.R.S. 1963: § 122-3-10.

11-42-111. Reserves and distribution of earnings.

  1. Every association shall maintain general reserves for the sole purpose of meeting losses. Such reserves shall include the following: Permanent stock, federal insurance reserve, contingent reserve, state tax reserve, and any special purpose reserve established for the sole purpose of absorbing losses by action of the association's board of directors or at the request of the commissioner.
  2. Repealed.
  3. Every association shall set up and maintain a reserve, referred to in articles 40 to 46 of this title as the "contingent reserve", by transfers from net earnings on the closing date fixed for such associations as provided in articles 40 to 46 of this title.
  4. Every association may set up and maintain a reserve, referred to in articles 40 to 46 of this title as the "state tax reserve" in accordance with article 2 of title 29 and articles 20 to 28 of title 39, C.R.S., by annual transfers from the contingent reserve. The state tax reserve shall be considered as a part of the contingent reserve.
  5. Any losses may be charged against general reserves; except that losses may not be charged against permanent stock until all other reserves available for losses have been depleted. Moreover, losses may not be charged to the contingent reserve until any special reserve set up to absorb such losses has been exhausted. Any determined excess in any other reserve may be transferred to the contingent reserve. Allowance for depreciation of assets shall not be charged against general reserves but shall be charged to undivided profits, surplus, or net earnings.
  6. As of each closing date fixed for such association as provided in articles 40 to 47 of this title, each association shall transfer to general reserves an amount which is not less than five percent of its net earnings until general reserves are equal to ten percent of invested capital (excluding permanent stock). If, after having reached ten percent, general reserves should fall below ten percent of invested capital (excluding permanent stock), credits of five percent of net income shall be resumed until general reserves shall again equal ten percent of invested capital (excluding permanent stock). General reserves may be increased over the required ten percent in any amount as may be determined by the board of directors to be for the best interest of the association. Notwithstanding the number of closing dates fixed for an association, not more than two such transfers shall be required annually, but more frequent transfers may be made by an association with the approval of the commissioner.
  7. As of each closing date fixed for such association as provided in articles 40 to 47 of this title, the board of directors of each association shall declare a dividend on all share accounts, if any, that it then has and may also, from net earnings, declare a dividend on permanent stock in such association, but no association shall be required to distribute earnings on Christmas savings shares or deposits or other short-term savings shares or deposits or on share or deposit balances of less than an amount specified by the board of directors, if said amount is disclosed to shareholders or depositors in advance, including reasonable notice of changes. In lieu of or in addition to such net earnings, all or any part of undivided profits or surplus of an association may be likewise distributed, but no funds received as part of the sale price of permanent stock or paid in as an assessment shall be distributed as a cash dividend on permanent stock.
  8. Dividends shall be declared on and pro rata to the certificate value of each share at the beginning of the dividend period, plus payments made thereon during the dividend period (less amounts withdrawn and, for purposes of participation in earnings, deducted from the latest previous payments), computed at the declared rate for the time invested, determined as provided in subsection (9) of this section.
  9. The date of investment shall be the date of actual receipt of such payments by the association unless the board of directors fixes a date, not later than the tenth of the month, for determining the date of investment of payments on shares or designated classes thereof. Payments affected by such determination date, received by the association on or before such determination date, shall receive earnings as if invested on the first of such month.
  10. Payments affected by such determination date, received subsequent to such determination date, shall receive earnings as if invested on the first of the next succeeding month.
  11. In all mutual associations issuing limited dividend shares, no dividends shall be paid or credited on fully participating free shares until all current maximum dividends on limited dividend shares have been paid or credited and until at least an equal dividend has been credited to fully participating loan shares.
  12. In permanent stock associations, no dividends shall be declared on the permanent stock until all current maximum dividends on limited dividend shares have been paid or credited.
  13. With approval of the commissioner, associations may pay a variable rate of dividends on shares.
  14. Notwithstanding any other provision of the Colorado "Savings and Loan Association Law", article 40 of this title, any association may distribute earnings on its shares on such other dates, on such other bases, and in accordance with such other terms and conditions as may from time to time be authorized by regulations made by the federal office of thrift supervision or its successor or the federal deposit insurance corporation or its successor for federal savings and loan associations when such regulations are approved by the commissioner.
  15. A depreciation reserve, an unearned profits account, an interest due and uncollected account, and a bonus reserve shall be set up and maintained when required.

Source: L. 33: p. 364, § 26. CSA: C. 25, § 94. L. 39: p. 254, § 30. CRS 53: § 122-3-11. L. 59: p. 661, § 4. C.R.S. 1963: § 122-3-11. L. 72: p. 617, § 152. L. 73: p. 1237, § 4. L. 77: (7) amended, p. 572, § 2, effective June 4. L. 83: (6) and (7) amended, p. 491, § 4, effective April 26. L. 2004: (2) repealed and (14) amended, pp. 151, 138, §§ 58, 19, effective July 1.

11-42-112. Requirements for sale of permanent stock.

  1. No association shall sell, offer for sale, negotiate for the sale of or take subscriptions for, or issue any of its permanent stock until it has first applied for and secured from the commissioner a permit authorizing it so to do. Such application shall be in writing, verified, and filed with the commissioner. In such application, the association shall set forth the names and addresses of its officers, the location of its office, an itemized account of its financial condition, the amount and character of its stock and shares, a copy of any prospectus or advertisement or other description of its stock to be distributed or published, a copy of all minutes of any proceedings of its directors, shareholders, or stockholders relating to or affecting the issue of such stock, and such additional information concerning the association, its condition, and its affairs as the commissioner may require. Upon the filing of such application, it shall be the duty of the commissioner to examine it and the other papers and documents filed therewith.
  2. If he finds that the proposed issue is such as will not mislead the public as to the nature of the investment or will not work a fraud upon the purchaser thereof, the commissioner shall issue to the association a permit authorizing it to issue and dispose of its stock in such amounts as the commissioner may in such permit provide; otherwise he shall deny the application and notify the association in writing of his decision.
  3. Every permit shall recite in bold type that the issuance thereof is permissive only and does not constitute a recommendation or endorsement of the stock permitted to be issued. The commissioner may impose conditions requiring the impoundment of the proceeds from the sale of such stock and limiting the expense in connection with the sale thereof and such other conditions as he may deem reasonable and necessary or advisable to insure the disposition of the proceeds from the sale of such stock in the manner and for the purposes provided in such permit. The commissioner from time to time may amend, alter, or revoke any permit issued by him or temporarily suspend the rights of such association under such permit. The commissioner has the power to establish such rules and regulations as may be reasonable or necessary to carry out the purposes and provisions of this section.

Source: L. 33: p. 318, § 2. CSA: C. 25, § 26. CRS 53: § 122-3-12. C.R.S. 1963: § 122-3-12.

11-42-113. Redemption of shares or stock.

Every savings and loan association may redeem its shares or stock and repay the funds acquired thereby with such earnings as the same may be entitled to according to the terms of the issue thereof if the same are no longer required for the purposes of the association upon giving thirty days' written notice in the manner provided in the bylaws of the association, but the association cannot redeem permanent stock. The method of redemption shall be prescribed in the bylaws of the association.

Source: L. 33: p. 355, § 9. CSA: C. 25, § 77. CRS 53: § 122-3-13. C.R.S. 1963: § 122-3-13.

11-42-114. Bonus plan.

  1. Any association may adopt a plan for the payment of a cash bonus to members agreeing to make share investments in order to provide funds for the financing of homes. Such plan, before being adopted, shall be approved by a majority of the members of the board of directors at any regular or special meeting thereof and shall become effective upon the filing with and approval of the commissioner. The board of directors at any regular or special meeting may abolish the bonus plan as to shares purchased after the date of such action.
  2. After adoption and approval of such bonus plan, the board of directors shall transfer out of net earnings to an account designated "bonus reserve" an amount which, together with existing credits to the bonus reserve, is sufficient to pay the bonus on all accounts then entitled to participation in the bonus reserve in accordance with the provisions of this section. The board of directors may transfer any excess in the bonus reserve to the undivided profits account.

Source: L. 33: p. 357, § 13. CSA: C. 25, § 81. L. 39: p. 254, § 29. CRS 53: § 122-3-14. L. 59: p. 664, § 5. C.R.S. 1963: § 122-3-14.

11-42-115. Power to issue shares to minors or in trust.

  1. Every association has the power to issue stock or shares to a minor of any age and either sex and receive payments thereon from, by, or for the minor. He shall be entitled to withdraw, transfer, or pledge any such shares owned by him and to receive from such association any dividends or other moneys at any time becoming due thereon in the same manner and subject to the same conditions as an adult, and his receipt or acquittance therefor shall constitute a valid release and discharge to the association for the payment of such moneys. The dealing of an association with a minor shall have the same effect upon the association's liability as if the minor were of full legal capacity, until his guardian or conservator files with the association a certified copy of the order of a Colorado court having jurisdiction appointing the guardian or conservator and directing otherwise.
  2. Subject to such regulations as the board of directors of the association may prescribe, an association may contract with the proper authorities of any public or nonpublic elementary or secondary school or any public or charitable institution caring for minors for the participation by the association in any school or institutional thrift or savings plan.
  3. Every association has power to issue stock or shares to any person on a revocable trust for another person, who is either named in writing as beneficiary thereof or who is unnamed. At any time during the lifetime of the trustee, the stock or shares, together with dividends, if any, shall be withdrawn only by the trustee. On the death of the trustee, the stock or shares, together with dividends, if any, shall be paid to the person for whom the stock or shares were issued as designated beneficiary, even though the beneficiary is not of full legal capacity, and, if there is no designated beneficiary living at that time, then to the personal representative of the trustee.
  4. The foregoing authorization shall not be construed as providing an exclusive method for a trustee to invest in stock or shares of an association. Nothing contained in this section shall be construed as limiting or repealing either section 28-5-214 or 28-5-301, C.R.S., with respect to investment of funds by guardians and conservators of minor and incompetent beneficiaries of the veterans administration, heretofore or hereafter appointed, or part 3 of article 1 of title 15, C.R.S., with respect to investments by fiduciaries.

Source: L. 33: p. 351, § 1. CSA: C. 25, § 69. CRS 53: § 122-3-15. L. 57: p. 652, § 1. C.R.S. 1963: § 122-3-15. L. 79: (1) amended, p. 647, § 3, effective July 1. L. 2002: (3) amended, p. 1359, § 7, effective July 1.

Cross references: For competence of persons 18 years of age or older generally, see § 13-22-101.

11-42-116. Joint accounts.

Except as to accounts, which are defined in and which are paid as provided in article 15 of title 15, C.R.S., where shares or stock of an association is issued in the name of two or more persons or the survivors of them, such shares or stock and all dues paid on account thereof by either or any of such persons shall become the property of such persons as joint tenants, and the same, together with dividends, shall be held for the exclusive use of such persons and may be paid to either or any of them during their lifetimes or to the survivors of them after the death of one or more of them, and such payment and the receipt and acquittance of the persons to whom such payment is made shall be a valid and sufficient release and discharge to such association for all payments made on account of such shares or stock.

Source: L. 33: p. 351, § 2. CSA: C. 25, § 70. CRS 53: § 122-3-16. C.R.S. 1963: § 122-3-16. L. 73: p. 1649, § 14. L. 75: Entire section amended, p. 587, § 3, effective July 1. L. 90: Entire section amended, p. 920, § 4, effective July 1.

11-42-117. Notice of intention to withdraw.

Each association may, at its option, prescribe a period or periods of notice of intention to withdraw. The period of any such notice of intention to withdraw shall not exceed sixty days. All notices of intention to withdraw shall be set forth and be a part of the bylaws of the association. All periods of notice of intention to withdraw shall be disclosed to members at the time of opening an account and shall appear on the shares as described in section 11-42-101. Each association may prescribe by its bylaws the terms and conditions of withdrawal which are not contrary to the provisions of articles 40 to 46 of this title. The shares shall state that the right of withdrawal is subject to the provisions of articles 40 to 46 of this title. This section shall not apply to tax and loan accounts, note accounts, or similar accounts when, subject to the regulations of the United States treasury, the association is serving as a depository for federal taxes or as a treasury tax and loan depository.

Source: L. 33: p. 319, § 1. CSA: C. 25, § 27. CRS 53: § 122-3-17. C.R.S. 1963: § 122-3-17. L. 79: Entire section amended, p. 432, § 8, effective June 19. L. 83: Entire section R&RE, p. 501, § 1, effective May 23.

11-42-118. Form of notice.

Any notice of intention to withdraw shall be invalid unless it is given in writing and is signed by a member entitled to make a withdrawal.

Source: L. 33: p. 320, § 2. CSA: C. 25, § 28. CRS 53: § 122-3-18. C.R.S. 1963: § 122-3-18. L. 83: Entire section amended, p. 501, § 2, effective May 23.

11-42-119. Filing of notice.

All notices of intention to withdraw shall be filed when received by each association in the order in which they are received, and each shall be kept on file with the exact time of the receipt thereof noted thereon, or recorded, until it is paid or cancelled at the written request of the member.

Source: L. 33: p. 320, § 3. CSA: C. 25, § 29. CRS 53: § 122-3-19. C.R.S. 1963: § 122-3-19. L. 83: Entire section amended, p. 501, § 3, effective May 23.

11-42-120. Shares or account not withdrawable.

No member whose shares are pledged or whose account is pledged as security for a real estate loan from the association issuing such shares or accepting such account shall be permitted to make a withdrawal or be entitled to give any valid notice of intention to withdraw in respect of such shares or account until the indebtedness for which such shares are pledged or for which such account is pledged as security has been fully paid; except that withdrawals may be made without notice if the full amount of such withdrawals is used to pay such indebtedness or any part thereof.

Source: L. 33: p. 320, § 4. CSA: C. 25, § 30. CRS 53: § 122-3-20. C.R.S. 1963: § 122-3-20. L. 83: Entire section amended, p. 502, § 4, effective May 23.

11-42-121. Payment of withdrawals.

  1. In case the funds of an association applicable to withdrawals are not sufficient to pay off all members desiring to withdraw, such members may be paid off in either one of two methods, dependent upon which method the board of directors of the association may desire to follow, in full in the order in which withdrawal notices are filed or on a pro rata basis, as follows:
    1. In the event an association elects to pay withdrawals in full in the order in which withdrawal notices are filed, all notices of withdrawal shall be filed in writing in order of time in which filed, and shall be kept in numerical order and so numbered, and shall be paid in the order filed as funds are available for that purpose.
    2. As to associations which elect to pay withdrawals on a pro rata basis, all shares or accounts on which notices of withdrawal have been filed during any period of notice shall receive their pro rata share of the funds available for withdrawal at the end of such notice period, based upon the withdrawal value of the shares or account at the time distribution is made.
    3. Repealed.
  2. Notice of withdrawal shall not make such withdrawing member a creditor of the association.
  3. As to all shares on which a withdrawal notice is on file, the holder thereof shall be entitled to the same rate of dividends paid like shares not on withdrawal.
  4. In all cases, withdrawals shall be governed by the bylaws of the association insofar as such bylaws are not in conflict with the provisions of articles 40 to 46 of this title.

Source: L. 33: p. 321, § 5. CSA: C. 25, § 30. CRS 53: § 122-3-20. C.R.S. 1963: § 122-3-20. L. 83: IP(1), (1)(a), (1)(b), and (2) amended and (1)(c) repealed, pp. 502, 503, §§ 5, 7, effective May 23.

11-42-122. Limitation on withdrawals.

  1. If an association has on file more withdrawal requests than can be met in full from current funds, the association shall apply to such withdrawals one-half of the monthly receipts, after first deducting the amount necessary to pay the actual and reasonable expenses incurred in the operation of the association and the protection of its assets and reserves set up by it for cash dividends on its shares; except that, should such one-half fail to retire at least five percent of the aggregate withdrawal requests, such portion of the other one-half shall be applied as shall be necessary to retire five percent of the total amount on withdrawal.
  2. "Receipts", as used in this section, means all funds coming into the hands of the association except borrowed money.

Source: L. 33: p. 322, § 6. CSA: C. 25, § 32. CRS 53: § 122-3-22. C.R.S. 1963: § 122-3-22.

Editor's note: The provisions within this section were renumbered on revision in 1998 to conform to statutory numbering format.

ANNOTATION

Annotator's note. Cases relevant to § 11-42-122 , which were decided prior to its earliest source, L. 33, p. 322 , § 6, have been included in the annotations to this section.

Withdrawals are payable in the order filed and, under the limitations of this section, a late comer may be refused payment for the time being. Hawley v. North Side Bldg. & Loan Ass'n, 11 Colo. App. 93, 52 P. 408 (1898).

Members have no priority. Certificates providing that the holder is a member of the association can have no priority in withdrawals. Exch. Nat'l Bank v. Receivers of City Sav. Bldg. & Loan Ass'n, 95 Colo. 498 , 37 P.2d 394 (1934).

Offer to pay less than sum due constitutes refusal to pay and authorizes suit. Under this section, an offer by a building and loan association to pay to a withdrawing member a lesser sum than he is legally entitled to at the time his notice of withdrawal is complete is such a refusal to pay the sum actually owing, as would authorize the institution of a suit to compel payment. Enter. Bldg. & Loan Soc'y v. Bolin, 12 Colo. App. 304, 55 P. 740 (1898).

Section inapplicable to payment of a certificate of deposit. Dollar Bldg. & Loan Ass'n v. Shields, 93 Colo. 480 , 27 P.2d 485 (1933).

11-42-123. Matured shares.

If, at the time shares in a savings and loan association have matured, the association has withdrawal notices on file to such an extent that the funds of the association, applicable to withdrawals, are not sufficient to pay off all shareholders desiring to withdraw, as well as shares which have matured and are unpaid, and the holder of the matured shares desires to withdraw, he shall file a notice of intention to withdraw and thereafter be subject to all the rights and liabilities of articles 40 to 46 of this title governing withdrawing shareholders; except that he shall be entitled to the full amount of any dividends declared on like shares during the time he has a withdrawal notice on file on same.

Source: L. 33: p. 323, § 7. CSA: C. 25, § 33. CRS 53: § 122-3-23. C.R.S. 1963: § 122-3-23.

11-42-124. Applicable to previously issued certificates.

All stock or shares or certificates or instruments of whatsoever kind issued by savings and loan associations prior to June 8, 1933, evidencing savings in said associations by the holders thereof, except permanent or nonwithdrawable stock, shall be subject to all the rights and all the liabilities of articles 40 to 46 of this title, and such holders shall be treated as shareholders.

Source: L. 33: p. 323, § 8. CSA: C. 25, § 34. CRS 53: § 122-3-24. C.R.S. 1963: § 122-3-24.

11-42-125. Associations authorized to accept deposit accounts.

  1. Any other provision of articles 40 to 46 of this title to the contrary notwithstanding, any association organized under articles 40 to 46 of this title may be organized as, or may convert to, an association authorized to accept savings deposits. No association shall accept savings deposits of the type provided for by this section unless its articles of incorporation and bylaws shall specifically provide, or have been amended to provide, for the acceptance of such deposits. For the purposes of this section, all associations authorized to accept savings deposits shall be referred to as "deposit associations", and other associations organized under articles 40 to 46 of this title shall be referred to as "share associations".
  2. Except as provided in this section, no deposit association shall issue or sell shares, as otherwise provided in articles 40 to 46 of this title, except permanent stock in the case of associations organized as permanent stock companies; but all shares issued and outstanding at the time an association converts to a deposit association shall retain their status as shares with the same relative rights, privileges, duties, and obligations otherwise applicable to shares in a share association, unless the holders thereof exchange or convert such shares to savings deposits. If any law, rule, regulation, order, or decision regulating federal savings and loan associations hereafter authorizes federal savings and loan associations to accept both savings accounts, other than savings deposits (or issue and sell shares), and savings deposits having substantially the same characteristics as deposits permitted by this section, the commissioner, by rules and regulations duly adopted, may authorize deposit associations to issue shares or accept accounts having the same relative rights and other characteristics permitted by such federal law, rule, regulation, decision, or order, subject to the same limitations, restrictions, prohibitions, conditions, and provisions, to the extent found by the commissioner to be applicable, as are provided from time to time by such federal laws, rules, regulations, decisions, or orders.
  3. Except as otherwise specifically provided in this section and except to the extent that such construction clearly would be inconsistent with the provisions and intent of articles 40 to 46 of this title, all references in articles 40 to 46 of this title (other than in this section) to shares or share accounts and to the owners or holders of shares or share accounts or to shareholders shall, with respect to the savings deposits authorized by this section, be applicable in the same manner and to the same extent that they would be applicable if such savings deposits were share interests in the association, and, except as provided in this section, the relationships between a deposit association and the holders of savings deposits therein shall be the same, and they shall have or be subject to the same rights, privileges, options, discretions, duties, obligations, restrictions, limitations, prohibitions, and conditions, as if the savings deposits were shares or the depositors were shareholders in a share association, including, but without limitation, the right of savings deposit holders to be members of the association and to have voting rights therein and the right of such associations to issue accounts to minors or in trust, to issue joint accounts, to adopt bonus plans, to issue permanent stock, and to otherwise conduct their operations in the manner provided by the provisions of articles 40 to 46 of this title.
  4. Notwithstanding any other provisions of articles 40 to 46 of this title, in the event of voluntary or involuntary liquidation, dissolution, or winding up of a deposit association or in the event of any other situation in which the priority of savings deposits authorized by this section is in controversy, all savings deposits, to the extent of their certificate value or withdrawal value at the time of the determination of priority, shall be deemed debts of the association, having the same priority as the claims of all general creditors of the association who do not have priority, other than any priority arising or resulting from consensual subordination, over other general creditors of the association, and, in addition, such savings deposits shall have the same right to share in the remaining assets of the association that they would have had if they were shares of such association. If, at the time of the determination of priority, there are outstanding in a deposit association any shares or share accounts in the association, such shares or share accounts shall, to the extent of their certificate value or withdrawal value, have the same priority as against other creditors or claimants as if they were savings deposits.
  5. The provisions of sections 11-42-117 to 11-42-123 shall be applicable to savings deposits, but any deposit association which fails to make full payment on any withdrawal demand within ten days after expiration of any advance notice period prescribed by the association's bylaws and permitted by articles 40 to 46 of this title may be found by the commissioner to be conducting its business in an unsafe or unauthorized manner or to be in an unsafe condition and subject to the penalties or actions resulting from such findings, including, but without limitation, the actions prescribed by sections 11-44-110 and 11-44-116.
  6. The provisions of sections 11-41-131 and 11-44-116 respecting the voluntary and involuntary liquidation of an association shall apply to all deposit associations, except to the extent that the order of priority of payment as between the claims of creditors, holders of savings deposits, shareholders, holders of permanent stock, or other investors is changed by the provisions of this section.
  7. If the laws, rules, regulations, orders, or decisions applicable to federal savings and loan associations hereafter authorize federal savings and loan associations to pay or contract to pay interest at an agreed rate on deposits or on one or more classes of deposits, then, deposit associations organized and operating under articles 40 to 46 of this title may likewise pay or contract to pay interest, subject to such restrictions, limitations, prohibitions, conditions, and requirements as the commissioner, by rules and regulations duly adopted and applicable to all deposit associations, may prescribe.
  8. In order to achieve substantial equality between deposit associations operating pursuant to the provisions of this section and federal savings and loan associations authorized to accept savings deposits, the commissioner is authorized, by rule or regulation duly adopted, to impose or grant, to the extent consistent with the provisions of articles 40 to 46 of this title, the same restrictions, limitations, prohibitions, conditions, requirements, duties, liabilities, provisions, authorities, powers, rights, options, and discretions as are from time to time applicable to federal savings and loan deposit associations under the laws, rules, regulations, orders, and decisions applicable to such federal savings and loan associations.
  9. Savings deposits in a deposit association shall be evidenced by such certificates, account books, or passbooks as the association could issue or would be required to issue for a corresponding share account if it were not a deposit association; but any such certificate, account book, or passbook shall be modified so as to clearly reveal that the interest or obligation evidenced thereby is a savings deposit and not a share or share account in the issuing association. The term "invested capital", as applied to a deposit association, shall include the certificate values of all savings deposits therein. A deposit association may accept such one or more types of savings deposits as are permitted by the bylaws of the association, if such deposits are of a type and kind that may be accepted by savings and loan associations insured by the federal deposit insurance corporation or its successor.
  10. Any provision to the contrary notwithstanding, all shares or accounts in a federal or state chartered savings and loan association having substantially the same relative rights and characteristics as either shares or savings deposits provided for by this section, whether described or referred to as shares, savings shares, investment shares, share accounts, certificates, certificate accounts, savings accounts, savings deposits, or any other similar name, are the equivalent of each other for all purposes involving the right or authority to invest or deposit public or private funds, including funds held in trust or any other fiduciary capacity, in any such association; and, if, by any law, statute, ordinance, resolution, rule, regulation, order, decision, agreement, declaration, trust agreement, last will and testament, or other similar enactment or instrument, the state of Colorado or any of its counties, municipalities, districts, or other political subdivisions, including special districts authorized by law, any institution, agency, official, instrumentality, or department of any of the political entities described in this subsection (10), any bank, savings bank, credit union, fraternal benefit society, trust deposit and security company, trust company, or other financial institution, any insurance company, or any agent, executor, administrator, trustee, custodian, or other fiduciary or agent, including trustees or custodians of public or private pension or retirement funds, is authorized or required to invest or deposit such public or private funds in the shares of a federal or state chartered savings and loan association or in any one or more of the other types of savings and loan accounts named in this subsection (10), such funds may also be invested or deposited in any one or more of the other types of accounts specified in this subsection (10) in such an association, whether the earnings to be paid on such accounts are in the form of dividends or of interest.

Source: L. 69: p. 1017, § 12. C.R.S. 1963: § 122-3-25. L. 83: (5) amended, p. 502, § 6, effective May 23. L. 2004: (9) amended, p. 151, § 59, effective July 1. L. 2013: (10) amended, (SB 13-154), ch. 282, p. 1471, § 29, effective July 1.

ARTICLE 43 FOREIGN SAVINGS AND LOAN ASSOCIATIONS

Section

11-43-101. Restrictions on foreign associations.

No foreign savings and loan association which conducts a savings and loan business as defined in section 11-40-103 shall operate an office in this state in order to sell its shares or accounts or make new loans in this state. Violation of this section is a class 2 misdemeanor which shall subject the offender and its officers, agents, and representatives, upon conviction thereof, to the penalties which are authorized in section 18-1.3-501 (1), C.R.S., and each separate business transaction in violation of this section shall constitute a separate offense; but nothing in this section shall be construed to prohibit a foreign association from transacting business in respect to executory contracts in force on May 17, 1939.

Source: L. 33: p. 324, § 1. CSA: C. 25, § 35. L. 39: p. 242, § 15. CRS 53: § 122-4-1. C.R.S. 1963: § 122-4-1. L. 88: Entire section amended, p. 455, § 2, effective March 18. L. 2002: Entire section amended, p. 1471, § 40, effective October 1.

Cross references: For the legislative declaration contained in the 2002 act amending this section, see section 1 of chapter 318, Session Laws of Colorado 2002.

ANNOTATION

Law reviews. For article, "Foreign Savings and Loan Associations Not Doing Business in Colorado", see 16 Colo. Law. 43 (1987).

Section applies to a foreign corporation, authorized by its charter to raise a fund by small periodical payments from which loans may be made to those who contributed to such funds, and which is conducting a business of this character, even though not technically a building and loan association. People ex rel. Griffith v. Standard Home Co., 59 Colo. 355 , 148 P. 869 (1915) (decided prior to L. 33, p. 324 , § 1, the earliest source of this section).

This section is a "doing business law". Even though this section regulates foreign savings and loan associations by prohibitions rather than by conditions, it is still a "doing business law". In addition, imposition of criminal sanctions, such as those in this section, is not atypical of a "doing business law". Title Ins. Co. of Minn. v. Am. Sav. & Loan Assn., 866 F.2d 1284 (10th Cir. 1989).

ARTICLE 44 DIVISION OF FINANCIAL SERVICES

Section

11-44-101. Division of financial services created.

There is hereby created a division of financial services, within the department of regulatory agencies, which shall be administered by the state commissioner of financial services. When any law of this state refers to the savings and loan department of the state of Colorado, said law shall be construed as referring to the division of financial services.

Source: L. 33: p. 331, § 1. CSA: C. 25, § 47. CRS 53: § 122-6-1. C.R.S. 1963: § 122-5-1. L. 68: p. 125, § 126. L. 89: Entire section amended, p. 616, § 1, effective July 1.

ANNOTATION

Law reviews. For comment on United States Bldg. & Loan Ass'n v. McClelland, appearing below, see 7 Rocky Mt. L. Rev. 156 (1935).

This is a comprehensive article creating a building and loan department of the state, defining its powers, and giving it supervision over all foreign and domestic building and loan corporations doing business in this state, with power to grant certificates of business. United States Bldg. & Loan Ass'n v. McClelland, 6 F. Supp. 299 (D. Colo. 1934).

It is a valid legislative enactment. Building and loan associations exercise quasi-banking functions, soliciting the savings and funds of the public, especially of those in more modest circumstances. The general assembly violates no constitutional guaranty in declaring them affected with a public interest and in providing, within proper limits, supervision and control for the protection of the investor. United States Bldg. & Loan Ass'n v. McClelland, 6 F. Supp. 299 (D. Colo. 1934).

11-44-101.4. Definitions.

As used in articles 30 and 40 to 46 of this title, unless the context otherwise requires, "board" means the financial services board, created in section 11-44-101.6.

Source: L. 93: Entire section added, p. 1447, § 9, effective June 6.

11-44-101.5. Division subject to termination - repeal of article.

  1. The provisions of section 24-34-104, C.R.S., concerning the termination schedule for regulatory bodies of the state unless extended as provided in that section, are applicable to the division of financial services created by section 11-44-101.
  2. This article is repealed, effective September 1, 2024.

Source: L. 76: Entire section added, p. 621, § 4, effective July 1. L. 89: Entire section amended, p. 616, § 2, effective July 1. L. 91: Entire section amended, p. 678, § 6, effective April 20. L. 94: (2) amended, p. 66, § 9, effective July 1. L. 2004: (2) amended, p. 138, § 20, effective July 1. L. 2013: (2) amended, (SB 13-159), ch. 193, p. 790, § 1, effective May 11.

11-44-101.6. Financial services board - creation.

  1. There is hereby established in the division the financial services board which shall consist of five members.
    1. There shall be three members who during their tenure are, and shall remain, executive officers of state credit unions and shall have not less than five years' practical experience as an active executive officer of a credit union.
    2. There shall be one member who during such member's tenure is, and shall remain, the executive officer of a state savings and loan association and shall have not less than five years' practical experience as an active executive officer of a savings and loan association.
    3. There shall also be one member to serve as a public member of the board who shall have expertise in finance through current experience in business, industry, agriculture, or education.
    4. Not more than three members shall be of the same major political party. No member of the board shall have any interest, direct or indirect, in a financial institution in which another member of the board shall have any such interest.
  2. Members shall be appointed by the governor, with the consent of the senate. Appointments shall take effect on July 1, 1993. The term of office of each member shall be four years with the exception of the first appointments wherein two members shall be appointed for a two-year term to effect the staggering of terms. The governor may, after notice and hearing, remove a member for cause. Any board member who is absent from three consecutive board meetings is subject to immediate removal by the governor.
  3. Each member of the board shall receive the same per diem compensation and reimbursement of expenses as those provided for members of boards and commissions in the division of professions and occupations pursuant to section 12-20-103 (6). Payment for all such expenses and allowances shall be made upon vouchers therefor, which shall be filed with the department of personnel.
  4. The board shall meet at least once every three months. The chair of the board may call additional meetings of the board upon at least seventy-two hours' notice to all members of the board and shall do so upon the request of two members. All members of the board shall be subject to immediate call in the event of an emergency. Three members of the board shall constitute a quorum, and action taken by a majority of those present at any meeting at which a quorum is present shall be the action of the board. Upon the affirmative vote of a majority of those present at any meeting at which a quorum is present, one or more members may be authorized to conduct any hearing required under articles 30 and 40 to 46 of this title. In the event that less than a quorum of the board is present during the conduct of the hearing, at least a quorum of the board shall read the entire record before voting thereon. No member who is, or was at any time in the preceding twelve months, a director, officer, partner, employee, member, or stockholder of a corporation, partnership, or unincorporated association which is a party to a proceeding before the board shall participate in such a proceeding. A member may disqualify himself or herself from participating in a proceeding for any other cause deemed by the member to be sufficient.
  5. A quorum may be established by means of a conference telephone call which shall be recorded in the board's minutes. Upon the affirmative vote of a majority of those present at any meeting at which a quorum is present, the board may hold an executive session to consider certain matters required by statute to be kept confidential under articles 30 and 40 to 46 of this title. Any agenda and the minutes of executive sessions shall be kept confidential by the board.
  6. Such clerical, technical, and legal assistance as the board may require shall be provided by the division.
  7. The members of the board shall, before entering upon the discharge of their duties, in addition to any oath required by the state constitution, take and subscribe an oath to keep secret all information acquired by them in the discharge of their duties, except as may be otherwise required by law. Any person who willfully violates this oath is guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine of not more than one thousand dollars, or by imprisonment in the county jail for not more than one year, or by both such fine and imprisonment.
  8. The board shall elect a chair from among its members to serve for a term not exceeding two years, as determined by the board. No chair shall be eligible to serve as such for more than two successive terms. In addition to the amounts received pursuant to subsection (4) of this section, the chair shall receive per diem compensation and reimbursement of expenses in the amounts provided by section 12-20-103 (6) for each day spent in attending to the duties of the board.
  9. For the fiscal year beginning July 1, 1993, all moneys necessary to fund the board, including but not limited to per diem compensation and reimbursement of expenses for board members, shall be transferred from the moneys allocated for travel expenses for the division.

Source: L. 93: Entire section added, p. 1447, § 9, effective June 6. L. 95: (4) amended, p. 637, § 20, effective July 1. L. 96: (4) amended, p. 1513, § 40, effective June 1. L. 2019: (4) and (9) amended, (HB 19-1172), ch. 136, p. 1659, § 58, effective October 1.

11-44-101.7. Powers of the financial services board.

  1. The board is the policy-making and rule-making authority for the division and has the power to:
    1. Regulate its own procedure and practice; and
    2. Make, modify, reverse, and vacate rules for the proper enforcement and administration of articles 30, 40 to 46, and 49 of this title 11.
  2. In addition to any other powers conferred on it by articles 30, 40 to 46, and 49 of this title 11, the board has the power to:
    1. Make all final decisions with respect to the organization, conversion, or merger of credit unions and savings and loan associations and administration of life care institutions or providers pursuant to article 49 of this title 11;
    2. Make all final decisions with respect to the suspension or liquidation of credit unions and savings and loan associations under article 30 of this title and this article.
    3. (Deleted by amendment, L. 95, p. 1092 , § 3, effective May 31, 1995.)
  3. The board has the power to:
    1. Prohibit the taking of shares or deposits or to restrict the withdrawal of shares or deposits, or both, from any one or more state credit unions or savings and loan associations when the board finds that extraordinary circumstances make such a restriction necessary for the proper protection of depositors in the affected state credit union or savings and loan association;
    2. Authorize state credit unions and savings and loan associations to engage in any activity in which such financial institutions could engage were they operating under a federal charter or certificate of approval at the time such authority is granted, so long as such activity is not prohibited by state law and to the extent permissible under the rules and regulations of the board;
    3. Affirm, modify, reverse, vacate, or stay the enforcement of any order, ruling, or determination made by the commissioner acting pursuant to authority delegated by the board;
    4. Issue a declaratory order with respect to the applicability of articles 30, 40 to 46, and 49 of this title 11, or any rule issued by the board to any person, property, or state of facts under said provisions;
    5. Review and comment on the preliminary budget draft for the division prior to its submission to the department of regulatory agencies;
    6. Annually establish such fees and assessments and the percentages thereof as are necessary to generate the moneys appropriated by the general assembly to the division;
    7. Comment to the executive director of the department of regulatory agencies on who shall be the commissioner and to recommend to said executive director the termination of the commissioner for cause;
    8. Perform any acts and make any decisions incidental to or necessary for carrying out its functions as set forth in articles 30, 40 to 46, and 49 of this title 11;
    9. Issue subpoenas and require attendance of any and all officers, directors, and employees of any credit union, savings and loan association, or life care institution or provider, and such other witnesses as the board may deem necessary in relation to its affairs, transactions, and conditions, and may require such witnesses to appear and answer such questions as may be put to them by the board, and may require such witnesses to produce such books, papers, or documents in their possession as may be required by the board. Upon application of the board and subject to any protective order which may be entered by a district court, any person served with a subpoena issued by the board may be required, by order of the district court of the county where the credit union, savings and loan association, or life care institution or provider has its principal office, to appear and answer such questions as may be put to such person by the board and be required to produce such books, papers, or documents in such person's possession as may be required by the board.
  4. The board may issue cease-and-desist orders, suspend a director, officer, or employee of a credit union or savings and loan association, or assess civil money penalties, in the same manner as provided in section 11-30-106 (7) and (8), concerning powers of the commissioner, and section 11-44-106.5, concerning suspension or removal of directors, officers, or employees, and as provided in sections 11-30-106.5 and 11-44-123, concerning assessment of civil money penalties by the commissioner.
  5. Except with respect to the organization of community charter credit unions, the board may, in its discretion, delegate to the commissioner any of its powers, duties, and functions.
  6. The board may, in its discretion, require the commissioner to report to the board periodically with respect to any powers delegated pursuant to subsection (5) of this section.
  7. The board shall have the power to approve or deny merger agreements for credit unions as provided in section 11-30-122. Mergers involving a community charter shall be subject to a public hearing pursuant to section 11-30-101.7.
  8. Repealed.

Source: L. 93: Entire section added, p. 1449, § 9, effective June 6. L. 94: (3)(b) amended and (8) repealed, pp. 66, 67, §§ 10, 11, effective July 1. L. 95: (2)(a), (2)(c), (3)(d), and (3)(h) amended, p. 1092, § 3, effective May 31. L. 99: (1) amended, p. 1011, § 4, effective August 4. L. 2013: (3)(i) amended, (SB 13-159), ch. 193, p. 791, § 5, effective May 11. L. 2017: (1)(b), IP(2), (2)(a), (3)(d), and (3)(h) amended, (SB 17-226), ch. 159, p. 589, § 4, effective August 9.

11-44-101.8. Review of commissioner actions by financial services board - judicial review.

    1. Any credit union, savings and loan association, or life care institution or provider, or any officer, director, employee, agent, advisor, or volunteer thereof, may appeal to the board any actions taken pursuant to authority delegated by the board pursuant to section 11-44-101.7 (5) or as otherwise specifically provided by statute. Notice of such appeal shall be filed with the commissioner within thirty days after such findings, ruling, order, decision, or other action. Such notice shall contain a brief statement of the pertinent facts upon which such appeal is based. Within sixty days after the appeal is filed, the board shall fix a date, time, and place for hearing the appeal and shall notify the credit union, savings and loan association, or life care institution or provider at least thirty days prior to the date of said hearing. Any such action of the commissioner may be stayed by the board pending the appeal to the board. The findings, order, decision, ruling, or other action of the board shall be deemed final agency action.
    2. In extraordinary circumstances, upon order of the board, any hearing conducted pursuant to paragraph (a) of this subsection (1) shall be exempt from any provision of law requiring that proceedings of the board be conducted publicly. Such extraordinary circumstances occur when specific concern arises about prompt withdrawal of moneys from an institution.
  1. Any credit union, savings and loan association, or life care institution or provider, or any officer, director, employee, agent, advisor, or volunteer thereof, or any other party, aggrieved or directly affected by a final order of the board, may obtain judicial review thereof by filing an action for review pursuant to the provisions of section 24-4-106, C.R.S., with the Colorado court of appeals pursuant to section 24-4-106 (11), C.R.S. The commencement of such proceeding does not, unless specifically ordered by the court, operate as a stay of the board's ruling, order, decision, or other action.

Source: L. 93: Entire section added, p. 1451, § 9, effective June 6. L. 94: (2) amended, p. 67, § 12, effective July 1. L. 95: (2) amended, p. 1092, § 4, effective May 31. L. 97: (2) amended, p. 8, § 1, effective March 13. L. 99: (1) amended, p. 1011, § 5, effective August 4. L. 2004: (1)(a) amended, p. 138, § 21, effective July 1.

11-44-102. Commissioner - duties - employees.

  1. The head of the division of financial services shall be the state commissioner of financial services, referred to in this article as the "commissioner". The commissioner shall have had at least five years' practical experience in the operation or regulation of financial institutions or financial service operations. The commissioner shall be appointed by the executive director of the department of regulatory agencies, pursuant to section 13 of article XII of the state constitution.
  2. The commissioner may appoint, pursuant to section 13 of article XII of the state constitution, a deputy commissioner of financial services, a secretary, and such other employees as deemed necessary for the proper conduct of the division.
  3. The deputy commissioner, the secretary, and all other employees of the division shall be under the direct supervision of the commissioner who shall have full power and control over such employees. Neither the commissioner nor any officer or employee of the division shall be personally liable for any acts done in good faith while in the performance of his duties as prescribed by law.
  4. Repealed.
  5. (Deleted by amendment, L. 2004, p. 138 , § 22, effective July 1, 2004.)
  6. The commissioner, the deputy commissioner, the secretary, and all employees shall be reimbursed for all necessary expenses of their office, including all traveling expenses necessarily incurred in the performance of their duties, upon vouchers therefor properly itemized and filed in accordance with law.
  7. Repealed.
    1. Neither the commissioner nor any employee of the division shall:
      1. Be an officer, director, committee member, attorney for, or stockholder in any credit union or savings and loan association; or
      2. Receive, directly or indirectly, any payment, gratuity, or compensation from any institution over which the division has regulatory authority.
    2. The provisions of paragraph (a) of this subsection (8) shall not prohibit the commissioner or any employee of the division from being a depositor, account holder, borrower, or user of other available financial services on the same terms as are available to the general public or membership.
    3. Notwithstanding any provision of this subsection (8) to the contrary, this subsection (8) shall not prohibit the credit union or savings and loan members of the financial services board pursuant to section 11-44-101.6 (2)(a) or (2)(b) from:
      1. Being executive officers in credit unions or savings and loan associations; and
      2. Receiving bona fide compensation as such officers.

Source: L. 33: p. 332, § 2. CSA: C. 25, § 48. L. 43: p. 207, § 6. L. 47: p. 315, § 1. CRS 53: § 122-6-2. C.R.S. 1963: § 122-5-2. L. 68: p. 125, § 127. L. 89: (1), (2), and (4) amended, p. 616, § 3, effective July 1. L. 91: (7) added, p. 674, § 3, effective May 1. L. 2004: (1), (2), and (5) amended and (8) added, p. 138, § 22, effective July 1. L. 2013: (4) repealed, (SB 13-159), ch. 193, p. 791, § 6, effective May 11.

Editor's note: Subsection (7)(b) provided for the repeal of subsection (7), effective January 1, 1992. (See L. 91, p. 674 .)

11-44-103. Powers of commissioner.

The commissioner has general supervision and control over all domestic and foreign savings and loan associations doing business in this state and has full power to grant, refuse, or revoke a permit or license to any association to do business in this state when such association is not conducting its business in conformity with the laws of the state or is conducting its business in such an unsafe manner as to render its further operations hazardous to the public or any of its shareholders. All articles of incorporation and amendments thereto, all bylaws and amendments thereto, and all certificates of stock and shares of associations subject to articles 40 to 46 of this title shall be submitted to said commissioner for his approval or disapproval, and said commissioner has the authority to approve, modify, or reject any such articles of incorporation or amendments thereto, bylaws or amendments thereto, and certificates of stock or shares. The commissioner has full power and authority to prescribe all necessary and proper rules and regulations for the conduct and operation of savings and loan associations in this state and shall prescribe the manner in which the books and records of associations doing business in this state shall be kept.

Source: L. 33: p. 334, § 3. CSA: C. 25, § 49. CRS 53: § 122-6-3. C.R.S. 1963: § 122-5-3.

ANNOTATION

Constitutional validity not properly raised by the association. United States Bldg. & Loan Ass'n v. McClelland, 95 Colo. 292 , 36 P.2d 164 (1934).

11-44-103.5. Record retention by the commissioner.

The commissioner shall retain records pursuant to part 1 of article 80 of title 24, C.R.S., and may, in his or her discretion, destroy records pursuant to said part 1.

Source: L. 2004: Entire section added, p. 139, § 23, effective July 1.

11-44-104. Commissioner may delegate powers.

The commissioner may delegate such of his powers and authority to his deputies as he may deem necessary for proper administration of the division and may designate appropriate titles for his deputies and any of his employees. Any such delegation or designation made may be rescinded by the commissioner at any time. All such actions shall be in writing and of record in the files of the division. The acts of deputies performing such delegated powers and authority shall be of the same legal effect as if performed personally by the commissioner.

Source: L. 39: p. 250, § 21. CSA: C. 25, § 49(1). CRS 53: § 122-6-4. C.R.S. 1963: § 122-5-4.

11-44-105. Commissioner may institute suits.

The commissioner shall report to the attorney general, and he shall institute and prosecute suits and actions to enjoin violations of articles 40 to 46 of this title or violations of orders or decisions of the commissioner rendered pursuant to said articles and to enforce any civil penalties provided by said articles. The commissioner shall notify the proper district attorney of any violation of the provisions of articles 40 to 46 of this title which constitutes a felony or misdemeanor, and such district attorney shall forthwith prosecute the person charged with such offense. Upon failure or refusal of the district attorney to so prosecute, it shall be the duty of the attorney general to conduct such prosecution.

Source: L. 33: p. 335, § 4. CSA: C. 25, § 50. CRS 53: § 122-6-5. C.R.S. 1963: § 122-5-5.

11-44-106. Issuance of subpoenas.

The commissioner has the power to issue subpoenas and require attendance of any and all officers, directors, agents, salesmen, collectors, and employees of any association and such other witnesses as he may deem necessary in relation to its affairs, transactions, and conditions, and may require such witnesses to appear and answer such questions as may be put to them by the commissioner, and may require such witnesses to produce such books, papers, or documents in their possession as may be required by the commissioner. Upon application of the commissioner, any person served with a subpoena issued by him may be required, by order of the district court of the county where the association has its principal office, to appear and answer such questions as may be put to him by the commissioner and be required to produce such books, papers, or documents in his possession as may be required by the commissioner.

Source: L. 33: p. 336, § 5. CSA: C. 25, § 51. CRS 53: § 122-6-6. C.R.S. 1963: § 122-5-6.

11-44-106.5. Suspension or removal of directors, officers, or employees.

    1. The commissioner may suspend or remove any director, officer, or employee of an association who in the opinion of the commissioner has:
      1. Violated the savings and loan association laws or a lawful regulation or order issued thereunder;
      2. Engaged or participated in any unsafe or unsound practice in the conduct of savings and loan business;
      3. Committed or engaged in any act, omission, or practice which constitutes a breach of fiduciary duty to the association and the association has suffered or will probably suffer financial loss or other damage or the interests of account holders may be seriously prejudiced thereby; or
      4. Received financial gain by reason of a violation, practice, or breach of fiduciary duty that involved personal dishonesty or demonstrated a willful or continuing disregard for the safety or soundness of the association.
    2. The commissioner may suspend or remove any director, officer, or employee of an association who, under the laws of this state, the United States, or any other state or territory of the United States:
      1. Has entered a plea of guilty or nolo contendere to or been convicted of a crime involving theft or fraud that is classified as a felony; or
      2. Is subject to an order removing or suspending such individual from office, or prohibiting such individual's participation in the conduct of the affairs of any credit union, savings and loan association, bank, or other financial institution.

    (1.2) A suspension or removal order issued pursuant to subsection (1) of this section shall include a description of the grounds for the suspension or removal. A copy of the order shall be sent to the association concerned and to each member of its board of directors.

    1. The commissioner shall send written notice by certified mail, return receipt requested, to any person affected by subsection (1) of this section, at least ten days prior to a hearing held pursuant to section 24-4-105, C.R.S., at which the commissioner shall preside.
    2. If the commissioner determines that a specific case involves extraordinary circumstances which require immediate action, he may suspend or remove a person under subsection (1) of this section without notice or a hearing, but he shall conduct a hearing under section 24-4-105, C.R.S., within thirty days after such suspension or removal.
    3. Any person who performs any duty or who exercises any power of a domestic savings and loan association after receipt of a suspension or removal order under subsection (1) of this section commits a class 1 misdemeanor and shall be punished as provided in section 18-1.3-501, C.R.S.
    4. In extraordinary circumstances, upon order of the commissioner, any hearing conducted pursuant to this section shall be exempt from any provision of law requiring that proceedings of the commissioner be conducted publicly. Such extraordinary circumstances occur when specific concern arises about prompt withdrawal of moneys from the institution.

Source: L. 85: Entire section added, p. 399, § 2, effective May 24. L. 89: (1) amended and (2)(d) added, p. 612, §§ 6, 7, effective April 19. L. 94: (1) amended and (1.2) added, p. 67, § 13, effective July 1. L. 2002: (2)(c) amended, p. 1471, § 41, effective October 1.

Cross references: For the legislative declaration contained in the 2002 act amending subsection (2)(c), see section 1 of chapter 318, Session Laws of Colorado 2002.

11-44-107. Confidentiality.

  1. Neither the commissioner, the commissioner's deputy, nor any other person appointed by the commissioner shall divulge any information acquired in the discharge of the person's duties; except that:
    1. A person specified in the introductory portion to this subsection (1) may divulge information acquired in the discharge of the person's duties if doing so is made necessary by law or under order of court in an action involving the division of financial services or in criminal actions;
    2. Any party entitled to appear in a hearing on an application for a savings and loan association charter or approval of a merger of savings and loan associations shall have access to the applicant's proposed articles or amended articles of incorporation, application for charter, and proposed bylaws;
    3. The commissioner may furnish information as to the condition of a savings and loan association to the federal office of thrift supervision or its successors, a federal home loan bank, the savings and loan departments of other states, an insurer authorized to insure obligations or accounts pursuant to articles 40 to 47 of this title, the executive director of the department of regulatory agencies, or the division of banking;
    4. The commissioner may give records or information in the commissioner's possession to a licensing agency within the department of regulatory agencies relating to possible misconduct by a person or entity licensed by said agency;
    5. The board, the commissioner, and their respective designees may exchange information obtained by the division of financial services as to possible criminal violations of law relating to the activities of a savings and loan association with the appropriate law enforcement agencies; and
    6. Notwithstanding any provision contained in this article to the contrary, the commissioner, the commissioner's deputies, or other persons appointed by the commissioner may disclose any information in the records of the division of financial services or acquired in the discharge of the person's duties that is available from the federal office of thrift supervision or its successors or the disclosure of which has been specifically authorized by the board of directors of the association to which such information relates. Nothing in this section shall be construed to authorize the board of directors of an association to waive any privileges that belong solely to the financial services board, the division of financial services, or its employees.

Source: L. 33: p. 336, § 6. CSA: C. 25, § 52. CRS 53: § 122-6-7. C.R.S. 1963: § 122-5-7. L. 79: Entire section amended, p. 432, § 9, effective June 19. L. 84: Entire section amended, p. 381, § 10, effective May 11. L. 85: Entire section amended, p. 400, § 3, effective May 24. L. 89: Entire section amended, p. 617, § 4, effective July 1. L. 93: Entire section amended, p. 1452, § 10, effective June 6. L. 99: Entire section amended, p. 1012, § 6, effective August 4. L. 2008: Entire section amended, p. 180, § 2, effective August 5.

11-44-108. Seal of commissioner. (Repealed)

Source: L. 33: p. 337, § 7. CSA: C. 25, § 53. CRS 53: § 122-6-8. C.R.S. 1963: § 122-5-8. L. 89: Entire section amended, p. 618, § 5, effective July 1. L. 94: Entire section repealed, p. 68, § 14, effective July 1.

11-44-109. Examination by commissioner - procedure - penalty.

  1. The commissioner, in person or by his deputy or one or more of his or her employees, at such intervals as the commissioner shall determine to be necessary or desirable in order to ascertain that each association is conducting its business in a safe and authorized manner, shall visit the home office and such branch offices as the commissioner deems necessary and examine into the affairs of every domestic association doing business in this state. The commissioner's deputy or any employee of the commissioner, before being entitled to make such examination, shall produce under the hand and seal of the commissioner his or her authority to make such examination. The commissioner and his deputy have the power to administer oaths and to examine under oath any director, officer, employee, or agent of any association concerning the business and affairs thereof. If the association has neither been audited by a registered or certified public accountant, in such manner and by auditors satisfactory to the commissioner, within the twelve-month period immediately preceding the date of such examination or within the period that has elapsed since such last preceding examination, whichever is greater, nor adopted and maintained an internal audit program acceptable to the federal deposit insurance corporation or its successor and the division, the examination by the division shall include an audit. The cost, as computed by the division, of any such audit shall be paid by the association audited; except that there shall be no charge by the division for making an audit when such audit has been made by reason of collaboration as provided in section 11-41-117.

    (1.5) In lieu of making his or her own examination, the commissioner may accept the examination report prepared by the federal office of thrift supervision or its successor or other appropriate regulatory authority.

  2. When, in the judgment of the commissioner, the condition of any association renders it necessary or expedient to make an extra examination or to devote any such extraordinary attention to its affairs, the commissioner has authority to make any extra examinations and to devote any necessary extra attention to the conduct of its affairs and may cause a registered or certified public accountant, appointed by the commissioner, to make an audit or examination of such association's business and affairs. In any such case, the association shall pay a reasonable fee based on actual cost to be affixed by the commissioner for all such extra services rendered by the division or by such accountant. A copy of the commissioner's report on each examination must be furnished to the association examined, and each director must note thereon that he has read the same.
  3. The commissioner or his deputy shall annually examine into the affairs of every foreign association doing business in this state, and for every such examination made outside this state a reasonable expense and the actual traveling expenses incurred shall be paid by the association so examined. If the commissioner deems it necessary, he may cause a public accountant, appointed by the commissioner, to make an audit or examination of such association's business and affairs, and, in any such case, such association shall pay a reasonable price to be fixed by the commissioner for such extra services rendered by such accountant. Should any foreign association fail to pay the costs incurred in any such examination, such costs shall be paid by the state treasurer upon the order of the commissioner, and the amount so paid shall be a first lien upon all the assets and property of such association and may be recovered by suit by the attorney general on behalf of the state of Colorado and restored to the fund from which paid.
  4. For the purpose of the examinations provided for in this section, the commissioner and his deputy or any other person authorized by him to make the examination has free access to all books and papers of the association which relate to its business and to the books and papers kept by any officer, agent, or employee relating thereto or upon which any record of its business is kept and may summon witnesses and administer oaths or affirmations in the examination of the directors, officers, agents, or employees of any such association or any other person in relation to its affairs, transactions, and conditions. He may require and compel the production of records, books, papers, contracts, or other documents by court action if necessary.
  5. Any person who knowingly or willfully testifies falsely in reference to any matter material to said examination is guilty of perjury in the second degree and, upon conviction thereof, shall be punished accordingly; and any person who willfully refuses or fails to attend, answer, or produce books or papers, or who refuses to give said commissioner or his deputy or the person authorized by him full and truthful information and answer in writing to any inquiry or question made in writing by said commissioner or deputy or the person authorized by him in regard to the business carried on by such association or other matters under investigation, or who refuses or willfully fails to appear and testify under oath before the commissioner, his deputy, or the person authorized by him is guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine of not more than five hundred dollars, or by imprisonment in the county jail for not more than three months, or by both such fine and imprisonment.
  6. Any director, officer, agent, or employee of any association who knowingly or willfully makes any false certificate, entry, or memorandum upon any of the books or the papers of any association or upon any statement filed or offered to be filed in the division of financial services of this state or used in the course of any examination, inquiry, or investigation, with the intent to deceive the commissioner, his deputy, or any person employed or appointed by him to make such examination, inquiry, or investigation, is guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine of not more than one thousand dollars, or by imprisonment in the county jail for not less than two months nor more than twelve months, or by both such fine and imprisonment.

Source: L. 33: p. 337, § 8. CSA: C. 25, § 54. L. 39: p. 250, § 22. CRS 53: § 122-6-9. L. 55: p. 765, § 1. L. 57: p. 650, § 2. C.R.S. 1963: § 122-5-9. L. 69: p. 1021, § 1. L. 71: p. 1147, § 5. L. 72: p. 567, § 44. L. 84: (1) amended and (1.5) added, p. 381, § 11, effective May 11. L. 89: (6) amended, p. 618, § 6, effective July 1. L. 2004: (1) and (1.5) amended, pp. 151, 140, §§ 60, 24, effective July 1.

11-44-110. Power to take possession of association.

  1. If the commissioner, as the result of any examination or from any report made to him, finds that any association doing business in this state is violating the provisions of its articles of incorporation or bylaws or of the laws of this state provided for its government or is conducting its business in an unsafe or unauthorized manner, by an order addressed to such association, he may direct a discontinuance of such violations or unsafe or unauthorized practices and a conformity with all the requirements of law.
  2. If such association refuses or neglects to comply with such order within the time specified therein, or if it appears to the commissioner that any association is in an unsafe condition or is conducting its business in an unsafe manner such as to render its further proceedings hazardous to the public or to any of its members, or if he finds that its assets are impaired to such an extent that it threatens loss to the withdrawable shares, or if any association refuses to submit its books, papers, and accounts to the inspection of the commissioner or any of his examiners, his deputy, or his assistants, or if any officer refuses to be examined upon oath concerning the affairs of such association, then the commissioner may revoke the certificate of authority of such association, which shall act as an injunction against the association issuing any new shares or stock, making any new loans, transferring any shares or stock, or making any change in its managerial or directorial personnel during the time such revocation is in effect.
  3. The commissioner may, with the written approval of the board, take possession of the property, business, and assets of such an association and retain such possession until such association, with the consent of the commissioner, resumes business or until its affairs are liquidated. Such association, with the consent of the commissioner, may resume business upon such conditions as may be prescribed by the commissioner, but such savings and loan association shall pay all the expenses of the commissioner and the commissioner's deputy and employees in so taking possession of its property and assets.
    1. In addition to all other powers to take possession of any association, the commissioner may appoint himself or herself or a third party as conservator of any association and immediately take possession and control of the business and assets of the association if the commissioner determines that:
      1. Such action is necessary to conserve the assets of the association or to protect the interests of its shareholders from acts or omissions of the existing management;
      2. The association, by a resolution of its board of directors, consents to such action;
      3. There is a willful violation of a cease-and-desist order that results in the association being operated in an unsafe or unsound manner; or
      4. The association is significantly undercapitalized and has no reasonable prospect of becoming adequately capitalized.
    2. The commissioner may appoint a conservator and take immediate possession of the association without prior notice or a hearing; except that, within ten days after the conservator is appointed, the association may file an appeal with the board requesting the board to rescind the commissioner's appointment of a conservator. Upon receipt of a timely appeal, the board shall set a date for hearing and determine whether the commissioner's appointment should be rescinded; except that such appeal shall not act as a stay of the commissioner's action. If the board finds the commissioner's action was unauthorized, the board shall restore control of the association to its board of directors. If no appeal is filed within ten days after the commissioner's appointment of a conservator, all action taken by the commissioner shall be final.
    3. In extraordinary circumstances, upon order of the board, any hearing conducted pursuant to this subsection (4) shall be exempt from any provision of law requiring that proceedings of the board be conducted publicly. Such extraordinary circumstances occur only when specific concern arises about prompt withdrawal of moneys from the association.
    4. The conservator shall have all the powers of the shareholders, directors, and officers of the association and shall be authorized to operate the association in its own name or to conserve its assets as directed by the commissioner. The conservator shall conduct the business of the association and make regular reports to the commissioner until such time as the commissioner has determined that the purposes of conservatorship have been accomplished and the association should be returned to the control of its board of directors. All costs incident to the conservatorship shall be paid out of the assets of the association. If the commissioner determines that the purposes of the conservatorship will not be accomplished, the commissioner may proceed with the involuntary liquidation of the association in the manner described in subsections (2) and (3) of this section.
    5. If a conservator is appointed, and is other than the federal deposit insurance corporation, the office of thrift supervision or its successors, or an employee of the division of financial services, the conservator and any assistants shall provide a bond, payable to the association and executed by a surety company authorized to do business in this state, which meets with the approval of the financial services board, for the faithful discharge of their duties in connection with such conservatorship and the accounting for all moneys coming into their hands. The cost of such bond shall be paid from the assets of the association. Suit may be maintained on such bond by any person injured by a breach of the conditions thereof. This requirement may be deemed met if the financial services board determines that the association's fidelity bond covers the conservator and any assistants.

Source: L. 33: p. 340, § 9. CSA: C. 25, § 55. CRS 53: § 122-6-10. C.R.S. 1963: § 122-5-10. L. 99: (3) amended and (4) added, p. 1012, § 7, effective August 4.

ANNOTATION

The taking over of a building and loan association is free from constitutional objections, for building and loan associations are purely creatures of statute. United States Bldg. & Loan Ass'n v. McClelland, 95 Colo. 292 , 36 P.2d 164 (1934).

11-44-110.5. Supervisory mergers.

As a condition to allowing an association to resume business, the commissioner may require the association to merge with a domestic, foreign, or federal savings and loan association. In the case of such a supervisory merger initiated by the commissioner or the federal deposit insurance corporation or its successor, the provisions of section 11-43-101 shall not apply.

Source: L. 82: Entire section added, p. 246, § 1, effective March 25. L. 2004: Entire section amended, p. 152, § 61, effective July 1.

11-44-111. Appeal from commissioner's action.

When any association, of whose property, business, and assets the commissioner has taken possession, deems itself aggrieved thereby, it may appeal to the financial services board pursuant to section 11-44-101.8 and receive expedited consideration as soon as practicable, and if it has, within ten days after the commissioner took possession, served written notice on the commissioner of its intention to seek to enjoin in court the commissioner's further proceedings, it may apply at any time within thirty days after such taking possession to the district court of the county in which the principal office of the association is located to enjoin further proceedings. After citing the commissioner to show cause why further proceedings should not be enjoined and hearing the evidence of the parties and determining the facts, the court may, upon the merits, dismiss such application or enjoin the commissioner from further proceedings and direct the commissioner to surrender such business, property, and assets to such association. An appeal from such judgment shall operate as a stay from the commissioner's taking possession, and no bond need be given if such appeal is taken by the commissioner; but, if such appeal is taken by such association, a bond shall be given as required by the court.

Source: L. 33: p. 341, § 10. CSA: C. 25, § 56. CRS 53: § 122-6-11. C.R.S. 1963: § 122-5-11. L. 93: Entire section amended, p. 1452, § 11, effective June 6.

ANNOTATION

The parties have, under this section, a right to a plenary judicial review of the actions of the commissioner. United States Bldg. & Loan Ass'n v. McClelland, 6 F. Supp. 299 (D. Colo. 1934).

11-44-112. Appointment of commissioner as receiver - assignment for benefit of creditors prohibited.

Upon application to the district court, the commissioner may be appointed the receiver to operate a savings and loan association when such appointment is necessary to avoid the association's assets becoming impaired or when the association is operating in an unsafe manner. In lieu of the commissioner being appointed a receiver or liquidator, the federal deposit insurance corporation or its successor, or an insurer authorized to insure obligations or accounts pursuant to articles 40 to 47.5 of this title, may be tendered an appointment as receiver or liquidator. For the purposes of rule 98 of the Colorado rules of civil procedure, venue of the commissioner is in the city and county of Denver. No savings and loan association shall make an assignment for the benefit of creditors.

Source: L. 33: p. 342, § 11. CSA: C. 25, § 57. CRS 53: § 122-6-12. C.R.S. 1963: § 122-5-12. L. 82: Entire section amended, p. 246, § 2, effective March 25. L. 84: Entire section amended, p. 382, § 12, effective May 11. L. 2004: Entire section amended, p. 152, § 62, effective July 1.

11-44-113. Procedure under court order.

  1. The commissioner may retain possession of any savings and loan association for the purpose of liquidating its affairs, but before doing so he shall furnish a bond, executed by some surety company authorized to do business in this state and running to the people of the state of Colorado, in a penal sum equal to the value of the negotiable assets of the association, as nearly as may be determined, for the faithful discharge of his duties in connection with liquidating the affairs of the association and accounting for all moneys coming into his hands. Such bond shall be approved by the governor and be filed in the office of the secretary of state. The cost of such bond shall be paid from the assets of the association. Suits may be maintained on such bond by any person injured by a breach of the conditions thereof.
  2. Upon taking such possession, the commissioner shall have authority to collect all moneys due to such association, and to give full receipt therefor, and to do such other acts as are necessary or expedient to collect, conserve, or protect its business, property, and assets.
  3. If the commissioner is in possession of the business, property, and assets of any association, regardless of whether or not he is liquidating the affairs of such association, the commissioner, in his discretion, may apply to the district court of the county in which the principal office in this state of such association is located for an order confirming any action taken by the commissioner or authorizing the commissioner to do any act or to execute any instrument not expressly authorized by articles 40 to 46 of this title, which order shall be made after a hearing, on such notice as the court shall prescribe. He may pay and discharge any secured claims against such association, and, within six months after taking such possession, he may disaffirm any executory contracts, including leases, to which such association is a party and disaffirm any partially executed contracts, including leases, to the extent that they remain executory.

Source: L. 33: p. 342, § 12. CSA: C. 25, § 58. CRS 53: § 122-6-13. C.R.S. 1963: § 122-5-13.

11-44-114. Noncompliance with orders - penalty.

If the commissioner demands possession of the property, business, and assets of any association, pursuant to section 11-44-110, the refusal of any officer, agent, employee, or director of such association to comply with such demand shall constitute a misdemeanor, punishable by a fine of not more than three hundred dollars, or by imprisonment in the county jail for not more than ninety days, or by both such fine and imprisonment; and, if such demand is not complied with within twenty-four hours after service, the commissioner may call to his assistance the sheriff of the county in which the principal place of business of such association is located, by written demand under his hand and official seal; whereupon it shall become the duty of such official to enforce the demands of the commissioner.

Source: L. 33: p. 343, § 13. CSA: C. 25, § 59. CRS 53: § 122-6-14. C.R.S. 1963: § 122-5-14.

11-44-115. Officers to furnish schedule of property.

Upon taking possession of the property, business, and assets of any association, the commissioner shall require the president and secretary of such association to make a schedule of all its property and assets and of all collateral held by it as security for loans, and to make oath that such schedule sets forth all such property, assets, and collateral which such association owns or to which it is entitled, and to deliver such schedule and the possession of all such property and collateral as may not have been so previously delivered to the commissioner, who may examine under oath such president and secretary, the other officers of such association, or the directors, agents, or employees thereof at any time to determine whether or not all the property, assets, and collateral which such association owns or to which it is entitled have been transferred and delivered into his possession.

Source: L. 33: p. 344, § 14. CSA: C. 25, § 60. CRS 53: § 122-6-15. C.R.S. 1963: § 122-5-15.

11-44-116. Liquidation powers of commissioner.

  1. In liquidating the affairs of an association, the commissioner has the power to collect all moneys due to and all claims of such association and give full receipt therefor; to release or reconvey all real or personal property pledged, hypothecated, or transferred in trust as security for loans; to approve and pay all just and equitable claims; to commence and prosecute all actions and proceedings necessary to enforce liquidations; to compound bad or doubtful debts and to compound and settle with any debtor or creditor of such association or with the persons having possession of its property or being in any way responsible at law or in equity to such association, upon such terms and conditions and in such manner as he deems just and beneficial to such association; in case of mutual dealings between the association and any person, to allow just setoffs in favor of such persons in all cases in which the same ought to be allowed according to law and equity; in case of borrowers holding shares of the association pledged to the association as security for said loan, to allow the amount paid in on said shares, together with all dividends legally declared thereon, to be set off against the amount due on said loan; and to sell, convey, and transfer real and personal property.
  2. If a purchaser for any bad or doubtful debts cannot be obtained and it appears improbable that recovery thereon can be had and that the costs of actions to enforce collections of the same would probably be lost, the court may direct that suits thereon need not be brought.
  3. For the purpose of executing and performing any of the powers and duties conferred upon him, the commissioner, in the name of such association or in his own name, may prosecute and defend any and all suits and other legal proceedings and, in the name of such association or in his own name, as commissioner, may execute, acknowledge, and deliver any deeds, assignments, releases, and other instruments necessary and proper to effectuate any sale of real or personal property or other transaction in connection with the liquidation of such association. Any deed, assignment, release, or other instrument executed pursuant to the authority given shall be valid and effectual for all purposes as though the same had been executed by the officers of such association by authority of its board of directors.
  4. In case any of the real property so sold is located in a county other than the county in which the application to the court for leave to sell the same is made, the commissioner shall cause a certified copy of the order authorizing or ratifying such sale to be filed in the office of the recorder of the county in which such real property is located.
  5. Upon determining to liquidate an association, the commissioner shall cause an inventory of all the assets of such association to be made in duplicate, the original to be filed with the court and the duplicate in the office of the commissioner. He shall cause due notice to be given, by publication once a week for four successive weeks in some newspaper of general circulation published at or near the principal place of business of such association in this state, to all persons having claims against it as creditors, or investors, or otherwise, to present and file same and make legal proof thereof at a place and within a time to be designated in such publication, which time shall be not less than two months after such first publication. Within ten days after such first publication, he shall cause a copy of such notice to be mailed to all persons whose names appear of record upon its books as creditors or investors, and, upon the expiration of the time fixed for the presentation of claims, the commissioner shall prepare or cause to be prepared in duplicate a full and complete schedule of all claims presented, specifying by classes those that have been approved and those that have been disapproved, and shall file the original with the court and the duplicate in the office of the commissioner. Not later than five days after the time of filing such schedule with the court, written notice shall be mailed to all claimants whose claims have been rejected.
  6. Action to enforce the payment of any rejected claim must be brought and service had within four months after the date of filing of the schedule of claims with the proper court; otherwise all such actions shall be forever barred. All claims of creditors, investors, or other persons against the association or against any property owned or held by it must be presented to the commissioner in writing, verified by the claimant or someone in his behalf, within the period limited in the notice mentioned in subsection (5) of this section for the presentation of claims; and any claims not so presented shall be forever barred; but the claim of any investor, appearing upon the books of the association as a valid claim, presented after the expiration of the time fixed in said notice shall be entitled to share in any dividends declared subsequent to the presentation of such claim.
  7. The commissioner under his hand and official seal may appoint one or more special deputies to assist in the duties of liquidation and distribution under his direction and may also employ such special legal counsel, accountants, and assistants as may be needful and requisite and fix the salaries and compensation to be allowed and paid to each, all to be in a reasonable and commensurate sum. All such salaries and compensation and such other reasonable and necessary expenses as may be incurred in the liquidation shall be paid by the commissioner from the funds of such association in his hands.
  8. From the net realization of such assets in excess of such salaries, compensation, and expenses, the commissioner shall first pay all approved claims other than to investors, and thereafter he shall distribute and pay dividends in liquidation to the shareholders and investors in the association, other than holders of permanent stock, until their claims are fully paid or such assets or funds are exhausted. Such distributions shall be made as funds are available therefor, to the extent of ten percent or more of the approved claims of the class of claimants then entitled to distribution, and shall continue until all the assets have been realized upon and a final dividend in liquidation is declared and paid.
  9. Upon the payment of a final dividend in liquidation, the commissioner shall prepare and file with the court a full and final statement of the liquidation, including a summary of the receipts and disbursements, and a duplicate thereof shall be filed in the office of the commissioner, and, after due hearing and approval by the court, the liquidation shall be deemed to be closed.
  10. The determination by the commissioner to liquidate any association, evidenced by filing written notice of such determination with the court, shall operate to stay or dissolve any actions or attachments instituted or levied within thirty days next preceding the taking of possession of such association by the commissioner, and, pending the process of liquidation, no attachment or execution shall be levied nor lien created upon any of the property of such association.
  11. Whenever, in case of any association which has issued permanent stock, the commissioner has fully liquidated all claims other than claims of such stockholders, and has made due provision for any and all known or unclaimed liabilities, excepting claims of permanent stockholders, and has paid all expenses of liquidation, he shall call a meeting of the stockholders of said savings and loan association by giving notice thereof for thirty days in one or more newspapers published in the county in which the principal office of the association is located. At such meeting the commissioner shall deliver to such stockholders all the property and effects of said association remaining in his possession, except its records, which shall be retained by him as part of the records of his office, and, upon such transfer and delivery, he shall be discharged from any and all further liability to said association or its creditors, and thereupon the association shall be in the same position as though it had never been authorized to transact a savings and loan business.

Source: L. 33: p. 344, § 15. CSA: C. 25, § 61. CRS 53: § 122-6-16. C.R.S. 1963: § 122-5-16.

11-44-117. Setoffs.

Credits on loan shares of all persons indebted to any savings and loan association in the possession of the commissioner, whether such indebtedness is due or to become due, shall be applied by him on account of such indebtedness.

Source: L. 33: p. 349, § 16. CSA: C. 25, § 62. CRS 53: § 122-6-17. C.R.S. 1963: § 122-5-17.

11-44-118. Commissioner and deputy not to accept gifts.

Neither the commissioner nor his deputy shall receive or accept any bribe, gratuity, or reward from any person or association for any purpose whatever or knowingly and willfully make any false or fraudulent report of the condition of any association for any purpose whatsoever. One or more of the directors of any association may be present at any examination of the affairs thereof, but the absence of any or all of the officers or directors shall not operate to prevent the commissioner or his deputy from proceeding with such examination.

Source: L. 33: p. 349, § 17. CSA: C. 25, § 63. CRS 53: § 122-6-18. C.R.S. 1963: § 122-5-18.

11-44-119. Association's right to resort to court.

Nothing in articles 40 to 46 of this title shall be construed to prevent an association or person affected by any order, ruling, proceeding, act, or action of the commissioner or the financial services board or any person acting on behalf and at the instance of the commissioner or the financial services board, or both, from testing the validity of the same in any court of competent jurisdiction, through injunction, appeal, or other proper process or proceeding, mandatory or otherwise.

Source: L. 33: p. 350, § 18. CSA: C. 25, § 64. CRS 53: § 122-6-19. C.R.S. 1963: § 122-5-19. L. 93: Entire section amended, p. 1453, § 12, effective June 6.

ANNOTATION

Section helps insure speedy judicial hearing. This section, together with §§ 11-41-111 , 11-41-113 , and 11-41-116 , supplies all reasonably proper means of obtaining speedy judicial hearings on all vital issues that could properly be raised. United States Bldg. & Loan Ass'n v. McClelland, 95 Colo. 292 , 36 P.2d 164 (1934).

For the parties have, under this section, a right to a plenary judicial review of the actions of the commissioner. United States Bldg. & Loan Ass'n v. McClelland, 6 F. Supp. 299 (D. Colo. 1934).

11-44-120. Records of commissioner.

  1. The commissioner shall maintain annually revised summaries disclosing the names of the officers and directors of all savings and loan associations doing business in the state of Colorado during the preceding year, the financial condition of such savings and loan associations, together with a statement of the assets, liabilities, and reserves of the associations, and such other information concerning the same as he may see fit.
  2. These data and any other material circulated in quantity outside the executive branch shall be issued in accordance with the provisions of section 24-1-136, C.R.S.
  3. Repealed.

Source: L. 33: p. 350, § 19. CSA: C. 25, § 65. L. 39: p. 251, § 23. CRS 53: § 122-6-20. L. 64: p. 169, § 133. C.R.S. 1963: § 122-5-20. L. 83: (2) and (3) amended, p. 827, § 9, effective July 1. L. 96: (3) repealed, p. 1231, § 55, effective August 7.

Cross references: For the legislative declaration contained in the 1996 act repealing subsection (3), see section 1 of chapter 237, Session Laws of Colorado 1996.

11-44-121. Commissioner may destroy records. (Repealed)

Source: L. 55: p. 764, § 11. CRS 53: § 122-6-21. C.R.S. 1963: § 122-5-21. L. 2004: Entire section repealed, p. 140, § 25, effective July 1.

11-44-122. Waiver of membership or stockholder voting.

Notwithstanding any other provision of state law, whenever the commissioner finds that it is necessary to effect a merger, consolidation, purchase and assumption agreement, conversion to stock association, conversion to mutual association, conversion to federal association, or conversion to state association or other action, as a result of the assets of any association being impaired to the extent that it threatens loss to the withdrawable shares or the association being in an unsafe condition and the time required to give proper notice and hold a meeting to vote on the action is deemed by the commissioner to increase the threat of loss to the withdrawable shares, the commissioner may waive the requirement of a membership or stockholder vote on the action. There shall be no requirement of prior written notice to the affected parties of said waiver.

Source: L. 82: Entire section added, p. 247, § 3, effective March 25.

11-44-123. Assessment of civil money penalties.

    1. After notice and a hearing as provided in article 4 of title 24, C.R.S., and after making a determination that no other appropriate governmental agency has taken similar action against such person for the same act or practice, the commissioner may assess and collect a civil money penalty from any person who has violated any final order issued by the commissioner pursuant to section 11-44-110 (1) or any suspension or removal order issued pursuant to section 11-44-106.5, or who has violated section 11-41-133.
    2. For the purposes of this section, a violation includes, but is not limited to, any action, by any person alone or with another person, which causes, brings about, or results in the participation in, counseling of, or aiding or abetting of a violation.
    3. In extraordinary circumstances, upon order of the commissioner, any hearing conducted pursuant to this section shall be exempt from any provision of law requiring that proceedings of the commissioner be conducted publicly. Such extraordinary circumstances occur when specific concern arises about prompt withdrawal of moneys from the institution.
  1. Civil money penalties shall be assessed by written notice of assessment of a civil money penalty served upon the person to be assessed. The notice of assessment of a civil money penalty shall state the amount of the penalty, the period for payment, the legal authority for the assessment, and the matters of fact or law constituting the grounds for assessment. The notice of assessment of a civil money penalty may be appealed to the financial services board pursuant to section 11-44-101.8. On appeal, the board may consider, among other matters, whether the civil money penalty assessed by the commissioner is appropriate considering the financial resources of the person assessed.
  2. In determining the amount of the civil money penalty to be assessed, the commissioner shall consider the good faith of the person assessed, the gravity of the violation, any previous violations by the person assessed, and such other matters as the commissioner may deem appropriate; except that the civil money penalty shall be not more than one thousand dollars per day for each day the person assessed is determined by the commissioner to be in violation of a cease-and-desist order or an order of suspension or removal. Alternatively, the commissioner may assess a civil money penalty for such violation in a lump-sum amount not to exceed fifty thousand dollars.
  3. Civil money penalties assessed pursuant to this section shall be due and payable and collected within thirty days after the notice of assessment of a civil money penalty is issued by the commissioner; except that the commissioner, in the commissioner's discretion, may compromise, modify, or set aside any civil money penalty. If any person fails to pay an assessment after it has become due and payable, the commissioner may refer the matter to the attorney general, who shall recover the amount assessed by action in the district court for the city and county of Denver. Any civil money penalty collected pursuant to this section shall be transmitted to the state treasurer, who shall credit it to the general fund.

Source: L. 89: Entire section added, p. 612, § 8, effective April 19. L. 93: (2) amended, p. 1453, § 13, effective June 6. L. 99: Entire section amended, p. 1014, § 8, effective August 4.

ARTICLE 45 CONVERSION

Section

11-45-101. Conversion into federal association.

  1. Any savings and loan association or other home-financing organization, by whatever name or style it may be designated, which is eligible to become a federal savings and loan association may convert itself into a federal savings and loan association by the following procedure:
    1. At any regular or special meeting of the shareholders of any such association called to consider such action and held in accordance with the laws governing such association, such shareholders, by an affirmative vote of the shareholders owning and voting the number of shares required for authorization of the sale of the association's assets or required to accomplish a consolidation or a merger, whichever is the greater, present in person or by proxy, may declare by resolution the determination to convert said association into a federal savings and loan association.
    2. A copy of the minutes of such meeting of the shareholders, verified by the affidavit of the president or vice-president and the secretary of the meeting, shall be filed within ten days after said meeting in the office or division of this state having supervision of such association. Such verified copy of the minutes of such meeting when so filed shall be presumptive evidence of the holding and of the action of such meeting.
    3. Within a reasonable time and without any unnecessary delay after the adjournment of such meeting of shareholders, the association shall take such action as may be necessary to make it a federal savings and loan association, and, within ten days after receipt of the federal charter, there shall be filed in the office or division of this state having supervision of such association a copy of said charter issued to such association by the office of thrift supervision or its successor or a certificate showing the organization of such association as a federal savings and loan association certified by, or on behalf of, the office of thrift supervision or its successor. Upon the filing of such instrument, such association shall cease to be a state association and shall thereafter be a federal savings and loan association.

Source: L. 35: p. 263, § 1. CSA: C. 25, § 67. CRS 53: § 122-7-1. C.R.S. 1963: § 122-6-1. L. 2004: (1)(c) amended, p. 140, § 26, effective July 1.

11-45-102. Effect of conversion.

At the time when such conversion becomes effective, such association shall cease to be supervised by this state, and all of the property of such association, including all of its right, title, and interest in and to all property of every kind and character, whether real, personal, or mixed, immediately by operation of law and without any conveyance or transfer whatsoever and without any further act or deed, shall continue to be vested in said association under its new name and style as a federal savings and loan association and under its new jurisdiction; and said federal savings and loan association shall have, hold, and enjoy the same in its own right as fully and to the same extent as if the same were possessed, held, and enjoyed by it as a state association, and said federal savings and loan association, at the time of the taking effect of such conversion, shall continue to be responsible for all of the obligations of said state association to the same extent as though said conversion had not taken place. It is expressly declared that such federal savings and loan association shall be merely a continuation of the state association under a new name, a new jurisdiction, and such revision of its corporate structure as may be considered necessary for its proper operation under said new jurisdiction.

Source: L. 35: p. 265, § 2. CSA: C. 25, § 68. CRS 53: § 122-7-2. C.R.S. 1963: § 122-6-2.

11-45-103. Conversion into state association.

  1. Any federal savings and loan association may convert itself into an association under articles 40 to 46 of this title by the majority vote of all members present in person or by proxy at an annual meeting or at any special meeting called to consider such action. Copies of the minutes of the proceedings of such meeting of members, verified by the affidavit of the secretary or an assistant secretary, shall be filed in the office of the commissioner and mailed to the office of thrift supervision, or its successor, within ten days after such meeting. Such verified copies of the proceedings of the meeting when so filed shall be prima facie evidence of the holding and action of such meeting.
  2. At the meeting at which conversion is voted upon, the members shall also vote upon the directors who shall be the directors of the state-chartered association after conversion takes effect. Such directors shall then execute two copies of the certificate of incorporation and four copies of the bylaws. The directors chosen for the association shall all sign and acknowledge the certificate of incorporation as subscribers thereto and the bylaws as incorporators of the association. The commissioner may provide, by regulation, for the procedure to be followed by any such federal savings and loan association converting into an association under articles 40 to 46 of this title. The state-chartered association shall be a continuation of the corporate entity of the converting federal association and continue to have all of its property and rights.

Source: L. 39: p. 251, § 24. CSA: C. 25, § 68(1). CRS 53: § 122-7-3. C.R.S. 1963: § 122-6-3. L. 2004: (1) amended, p. 140, § 27, effective July 1.

ARTICLE 46 SAFE DEPOSIT FACILITIES

Section

11-46-101. Definitions.

As used in this article, unless the context otherwise requires:

  1. "Fiduciary" means any person as defined in section 15-1-103 (2), C.R.S.
  2. "Lease" means the contract between lessor and lessee governing the use, payment, and other terms and conditions with regard to a safe deposit box.
  3. "Lessee" means a person contracting with a lessor for the use of a safe deposit box.
  4. "Lessor" means any association defined in section 11-46-102 which maintains safe deposit facilities.
  5. "Person" means any natural person, partnership, whether limited or general, corporation, or entity leasing a safe deposit box.
  6. "Safe deposit box" means any vault, box, receptacle, or other safekeeping facility maintained by a lessor for lease to third persons.

Source: L. 59: p. 664, § 7. CRS 53: § 122-8-2. C.R.S. 1963: § 122-7-2.

11-46-102. Safe deposit boxes.

Any savings and loan associations organized under articles 40 to 46 of this title and any federal savings and loan associations organized under the "Home Owners' Loan Act of 1933", as amended, except to the extent that laws, rules, and regulations under which they operate are inconsistent with this article, may engage in the business of leasing safe deposit boxes in accordance with the provisions of this article.

Source: L. 59: p. 664, § 7. CRS 53: § 122-8-1. C.R.S. 1963: § 122-7-1.

Cross references: For the "Home Owners' Loan Act of 1933", see Pub.L. 73-42, codified at 12 U.S.C. sec. 1461 et seq.

11-46-103. Lease to natural persons.

A lessor may lease a safe deposit box to any natural person and, in connection therewith, deal with such person without liability until there is filed with such lessor a certified copy of any order of a Colorado court indicating that such person is under a legal disability and directing the lessor to deal with such person's fiduciary.

Source: L. 59: p. 665, § 7. CRS 53: § 122-8-5. C.R.S. 1963: § 122-7-5.

11-46-104. Leases to joint tenants.

  1. Any lessor may lease a safe deposit box to one or more natural persons as joint tenants, and any one of such joint tenants shall have the right of access to such safe deposit box.
  2. Upon the death of any joint tenant, the provisions of section 15-10-111, C.R.S., and of this section with regard to examination shall apply.
  3. Nothing in this section shall be construed to prevent the making of leases for safe deposit boxes, the terms of which may require the signature and presence of more than one person as a condition for access to said box.

Source: L. 59: p. 665, § 7. CRS 53: § 122-8-6. C.R.S. 1963: § 122-7-6. L. 73: p. 1650, § 15. L. 81: (2) amended, p. 1883, § 1, effective May 27. L. 2002: (2) amended, p. 1360, § 8, effective July 1.

11-46-105. Access by fiduciaries.

  1. 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 instrument of authority pursuant to which such fiduciaries are acting and copies of which have been furnished the lessor, allow access thereto as follows:
    1. By any one or more of the persons acting as executors or administrators;
    2. By any one or more of the persons otherwise acting as fiduciaries when authorized in writing and signed by all other persons so acting;
    3. By any agent authorized in writing and signed by all of the persons acting as fiduciaries.

Source: L. 59: p. 665, § 7. CRS 53: § 122-8-3. C.R.S. 1963: § 122-7-3.

11-46-106. Effect of lessee's death or incompetence.

Where a lessor, without written notice or actual knowledge of the death or of a determination of legal incompetence of the lessee, deals with said lessee or his agent pursuant to a written power of attorney signed by such lessee, the transaction binds the lessor and the estate of the lessee.

Source: L. 59: p. 665, § 7. CRS 53: § 122-8-4. C.R.S. 1963: § 122-7-4. L. 75: Entire section amended, p. 922, § 8, effective July 1; entire section amended, p. 207, § 9, effective July 16.

Editor's note: Amendments to this section by Senate Bill 75-135 and Senate Bill 75-453 were harmonized.

11-46-107. Search procedure on death.

The provisions of section 15-10-111, C.R.S., shall apply to the search procedure of a safe deposit box on the death of a lessee.

Source: L. 59: p. 666, § 7. CRS 53: § 122-8-7. C.R.S. 1963: § 122-7-7. L. 73: p. 1650, § 16.

11-46-108. Adverse claims to contents of safe deposit box.

  1. A lessor shall not deny access to a safe deposit box to its lessee unless the claim of said lessee is adverse within the terms of this section. A claim shall be considered adverse when:
    1. The lessor is directed to deny such access by a court order issued in an action in which the lessee is served with process and named as a party by a name which identified him with the name in which the safe deposit box is leased; or
    2. The safe deposit box is leased or the property is held in the name of a lessee with the addition of words indicating that the contents or property are held in a fiduciary capacity for a named beneficiary and the adverse claim is supported by a sworn written statement of facts disclosing that it is made by or on behalf of such a beneficiary and that there is reason to know that the fiduciary may misappropriate the trust property; or
    3. One of several lessees claims, contrary to the terms of the lease, an exclusive right of access, or when one or more persons claim a right of access as agents or officers of a lessee to the exclusion of others as agents or officers, or when it is claimed that a lessee is the same person as one using another name.

Source: L. 59: p. 666, § 7. CRS 53: § 122-8-8. C.R.S. 1963: § 122-7-8.

11-46-109. Nonpayment of rent.

If the rental on a safe deposit box has not been paid for one year after it is due, the lessor may petition a court of competent jurisdiction to make disposition of the contents of such safe deposit box, and the lessor shall have the right to claim and accept any proceeds from such disposition to satisfy accumulated charges, court costs, and attorneys' fees in connection with the rental and disposition of said safe deposit box.

Source: L. 59: p. 667, § 7. CRS 53: § 122-8-9. C.R.S. 1963: § 122-7-9.

ARTICLE 47 PROTECTION OF DEPOSITS OF PUBLIC MONEYS

Section

11-47-101. Short title.

This article shall be known and may be cited as the "Savings and Loan Association Public Deposit Protection Act".

Source: L. 75: Entire article added, p. 399, § 1, effective July 1.

11-47-102. Legislative declaration.

  1. The general assembly declares that the purpose of this article is to provide protection of public moneys on deposit in state-chartered and federally chartered savings and loan associations in this state above and beyond the protection provided by the federal deposit insurance corporation or its successor and to ensure prompt payment of deposit liabilities to governmental units in the event of default or insolvency of any such association.
  2. The general assembly further declares that the inclusion of self-insurance pools formed by governmental units within the scope of the provisions of this article is to clarify that such self-insurance pools have been and shall continue to be entitled to protection as provided by the provisions of this article.

Source: L. 75: Entire article added, p. 399, § 1, effective July 1. L. 88: Entire section amended, p. 428, § 6, effective April 20. L. 2004: (1) amended, p. 141, § 28, effective July 1.

11-47-103. Definitions.

As used in this article, unless the context otherwise requires:

  1. "Affected governmental unit" means any governmental unit whose deposits of public moneys are affected by an event of default.
  2. "Capital funds" means, with respect to any eligible public depository, the aggregate sum of its capital stock, surplus, and undivided profits and of all reserves required by any law or regulation, together with the amount of any debt subordinated to deposit liabilities when such debt has been allowed to be included in its stated capital position by the applicable regulatory authority.
  3. "Commissioner" means the state commissioner of financial services.
  4. "Defaulting depository" means an eligible public depository to which an event of default has occurred.
  5. "Eligible collateral" means:
    1. Obligations of the United States or of any agency thereof;
    2. Obligations wholly or partially guaranteed or insured as to payment of principal by the United States or any agency thereof;
    3. Obligations of the state of Colorado, including anticipation warrants, and general obligations of any governmental unit of this state, including obligations the interest and principal of which are secured by deposit in escrow of an amount of obligations of the United States or any agency thereof sufficient to secure such payment;
    4. Obligations evidenced by notes secured by first lien mortgages or deeds of trust on real property, whether or not situate in this state, if such obligations are not for construction or land acquisition and development and if such obligations shall not exceed one hundred percent of the value of all eligible collateral on pledge, which obligations shall not be in default in any respect and are wholly owned by the eligible depository;
    5. Revenue bonds, except industrial development revenue bonds, issued by the state of Colorado or any agency thereof, or by any county, city and county, municipality, school district, special district, or other authority within this state, as well as special improvement district bonds issued by any such political subdivision or authority;
    6. Mortgage-backed securities issued by the federal home loan mortgage corporation, the federal national mortgage association, or the government national mortgage association and such other mortgage-backed securities as are approved by the commissioner;
    7. Such liquid assets, as such term is defined in the federal regulations governing members of a federal home loan bank, as are approved by the commissioner;
    8. Irrevocable and unconditional standby letters of credit issued by a federal home loan bank if:
      1. The letter of credit is in the standard format approved by the Colorado division of financial services;
      2. The Colorado division of financial services is designated as the beneficiary of the letter of credit; and
      3. Securities issued by the federal home loan bank remain triple A-rated by one or more nationally recognized organizations which regularly rate such obligations.
  6. "Eligible public depository" means any state-chartered savings and loan association or any federally chartered savings and loan association having an office in this state which is authorized by the laws of the United States to accept deposit accounts, which deposits are insured by the federal deposit insurance corporation or its successor, and which depository has been designated as an eligible public depository by the commissioner.
  7. "Event of default" means the issuance of an order by a supervisory authority or a receiver restraining an eligible public depository from making payments of its deposit liabilities.
  8. "Governmental unit" means the state of Colorado, every municipality, city and county, county, school district, special district, and authority located in this state, every public body corporate created or established under the constitution or any law of this state, and every board, commission, department, institution, agency of, and every entity created by intergovernmental agreement among, any of the foregoing which collects, receives, or has custody of or control over public moneys.

    1. (8.5) (a) "Market value" means, for eligible collateral consisting of obligations wholly or partially guaranteed or insured as to payment of principal by the United States or any agency thereof, or other obligations evidenced by notes secured by first lien mortgages or deeds of trust, the lower of current market quotation or seventy-five percent of the unpaid principal of the note evidencing the obligation.
    2. For all other eligible collateral, "market value" means the current market quotation.
  9. (Deleted by amendment, L. 2004, p. 141 , § 29, effective July 1, 2004.)
  10. "Net deposit liability" means, with respect to a defaulting depository, the amount of its deposit liability to a governmental unit after deduction of any applicable federal deposit insurance corporation or its successor insurance with respect thereto.
  11. "Public deposits" means and includes all public moneys on deposit in an eligible public depository, whether payable on demand or at a certain time.
  12. "Public moneys" means all moneys under the control of or in the custody of governmental units.
  13. "Valuation date" means the last business day of either March or September of each year, as the occasion may require.

Source: L. 75: Entire article added, p. 399, § 1, effective July 1. L. 76: (9) amended, p. 300, § 22, effective May 20. L. 77: (5)(d) and (5)(e) amended, p. 574, § 1, effective June 10. L. 79: (5)(b) and (5)(d) amended and (8.5) added, p. 1614, § 3, effective June 8. L. 81: (5)(d) amended, p. 620, § 3, effective April 30. L. 83: (8.5)(a) amended, p. 487, § 2, effective May 10. L. 85: (5)(d) and (5)(e) amended and (5)(f) and (5)(g) added, p. 401, § 1, effective May 31. L. 88: (8) amended, p. 429, § 7, effective April 20. L. 89: (3) amended, p. 621, § 14, effective July 1. L. 94: (6) amended, p. 68, § 15, effective July 1. L. 97: (5)(h) added, p. 159, § 1, effective March 28. L. 2004: (9) and (10) amended, p. 141, § 29, effective July 1.

11-47-104. Administration - powers of commissioner and financial services board.

The provisions of this article shall be administered by the commissioner under the supervision of the financial services board. The financial services board and the commissioner shall have the authority to do all acts necessary and required to carry out the purpose of this article. To this end, the financial services board is empowered to make, amend, and rescind rules and regulations consistent with said provisions and to prescribe a standard form for the statements and reports required to be made or filed by eligible public depositories and to require uniform use of the same. Acts of the commissioner are subject to appeal to the financial services board pursuant to section 11-44-101.8.

Source: L. 75: Entire article added, p. 401, § 1, effective July 1. L. 93: Entire section amended, p. 1453, § 14, effective June 6.

11-47-105. Acceptance of provisions - designation as eligible public depository.

  1. Every state-chartered savings and loan association and every federally chartered savings and loan association having an office in this state that is otherwise eligible to be an eligible public depository and that desires to accept and hold public deposits in an amount in excess of the amount insured by the federal deposit insurance corporation or its successor shall file with the commissioner, on a form provided by him or her for such purpose, a statement signed and sworn to by an executive officer of such association electing to accept and become subject to the provisions of this article and setting forth the amount of its capital funds and the aggregate amount and nature of all public deposits held by it. Upon the filing of such statement and acceptance, the commissioner shall forthwith designate such savings and loan association as an eligible public depository and shall issue an appropriate certificate evidencing such designation.
  2. (Deleted by amendment, L. 2004, p. 141 , § 30, effective July 1, 2004.)

Source: L. 75: Entire article added, p. 401, § 1, effective July 1. L. 94: Entire section amended, p. 68, § 16, effective July 1. L. 2004: Entire section amended, p. 141, § 30, effective July 1.

11-47-106. Minimum amount of eligible collateral required to be maintained as security for public deposits. (Repealed)

Source: L. 75: Entire article added, p. 401, § 1, effective July 1. L. 93: (3) amended, p. 1453, § 15, effective June 6. L. 2004: Entire section repealed, p. 142, § 31, effective July 1.

11-47-107. Eligible collateral - when required to be maintained. (Repealed)

Source: L. 75: Entire article added, p. 402, § 1, effective July 1. L. 2004: Entire section repealed, p. 142, § 32, effective July 1.

11-47-108. Method of securing public deposits.

  1. Except as provided in section 11-47-112 (6)(a), any eligible public depository shall secure public deposits accepted and held by it by pledging eligible collateral having a market value, at all times, equal to at least one hundred percent of the aggregate of said deposits not insured by the federal deposit insurance corporation or its successor.
  2. The eligible collateral pledged shall be held as specified in section 11-47-109; except that the depository shall be required to furnish each governmental unit whose deposit is so secured with a statement, signed under oath by an executive officer of said depository, certifying to said governmental unit that its deposit is secured in the manner specified in subsection (1) of this section and specifying where the collateral pledged is being held in custody.

Source: L. 75: Entire article added, p. 402, § 1, effective July 1. L. 87: (1) amended, p. 469, § 2, effective May 1. L. 2004: Entire section amended, p. 143, § 33, effective July 1.

11-47-109. Where collateral held - right of substitution - income derived.

  1. The eligible collateral required to be pledged as provided in section 11-47-108 shall be held in escrow by another savings and loan association in Colorado, by a state or national bank in Colorado, or by any federal home loan bank or branch thereof or any federal reserve bank or branch thereof approved by the commissioner, and held in such manner as the financial services board shall prescribe by rule. All collateral so held shall be clearly identified as being security maintained or pledged for the aggregate amount of public deposits accepted and held on deposit by said eligible public depository.
  2. Said depository shall have the right at any time to make substitutions of eligible collateral maintained or pledged and shall at all times be entitled to collect and retain all income derived from the same without restriction.

Source: L. 75: Entire article added, p. 403, § 1, effective July 1. L. 77: (1) amended, p. 574, § 2, effective June 10. L. 86: (1) amended, p. 603, § 1, effective March 10. L. 89: (1) amended, p. 613, § 9, effective April 19. L. 93: (1) amended, p. 1454, § 16, effective June 6. L. 2004: (1) amended, p. 143, § 34, effective July 1.

11-47-110. Subsequent elections upon approval of commissioner. (Repealed)

Source: L. 75: Entire article added, p. 403, § 1, effective July 1. L. 2004: Entire section repealed, p. 143, § 35, effective July 1.

11-47-111. Reports required - when filed - contents.

On a date specified by the commissioner, every eligible public depository shall file a report with the commissioner that contains such information as required by the commissioner. The commissioner may require more frequent reports from eligible public depositories.

Source: L. 75: Entire article added, p. 403, § 1, effective July 1. L. 83: Entire section amended, p. 488, § 3, effective May 10. L. 94: Entire section amended, p. 69, § 17, effective July 1. L. 2000: Entire section amended, p. 156, § 3, effective August 2.

11-47-112. Power and authority of financial services board.

  1. The commissioner shall have specific power and authority to require any eligible public depository to furnish, at any time, such information as the commissioner may request or demand concerning the amount of public deposits held by it, the portion thereof that is insured by the federal deposit insurance corporation or its successor, the amount of its capital funds, and the nature, amount, market value, and location of the eligible collateral maintained or pledged by it to secure said deposits.
  2. If any such depository shall fail or refuse to furnish the information requested or demanded within ten days after the date of the request or demand, the commissioner shall have the authority to forthwith deny it the right to accept and hold any additional public deposits until such time as said information is furnished to him and he has acknowledged receipt thereof, and, at his discretion, he may make public announcement of such denial.
  3. The commissioner shall have the authority to determine and fix the date upon which any event of default is deemed to have occurred, after taking into account and giving due consideration to any rule, regulation, or lawful order of any supervisory authority as the same may affect the inability or failure of an eligible public depository to repay deposit liabilities.
  4. The commissioner shall have the authority to require any eligible public depository to substitute new eligible collateral for any of its maintained or pledged collateral which he deems to be ineligible.
  5. If any depository violates any regulation promulgated by the commissioner pursuant to section 11-47-104 or violates any provision of this article, the commissioner shall have the authority to deny, forthwith, the right of said depository to accept and hold any additional public deposits until such time as the depository complies with the regulations or the provisions of this article. The commissioner, at his discretion, may make public announcement of such denial.
    1. The financial services board may promulgate rules to require an eligible public depository to reduce or eliminate its uninsured public deposit liability if said depository's regulatory capital does not comply with the minimum requirement of the federal deposit insurance corporation or its successor. Notwithstanding any other provision in this article to the contrary, the financial services board also may promulgate rules to require a depository to pledge eligible collateral having a market value in excess of one hundred percent of the aggregate amount of public deposits not insured by the federal deposit insurance corporation or its successor, if said depository's regulatory capital does not comply with the minimum requirement of the federal deposit insurance corporation or its successor. Notwithstanding any other provision in this article to the contrary, the financial services board may promulgate rules to require an eligible public depository to pledge a minimum amount of eligible collateral.
    2. Repealed.

Source: L. 75: Entire article added, p. 403, § 1, effective July 1. L. 85: (4) added, p. 402, § 2, effective May 31. L. 87: (5) and (6) added, p. 469, § 3, effective May 1. L. 89: (6)(a) amended and (6)(b) repealed, pp. 614, 615, §§ 10, 13, effective April 19. L. 93: (6) amended, p. 1454, § 17, effective June 6. L. 2004: (1) and (6)(a) amended, pp. 152, 144, §§ 63, 36, effective July 1.

11-47-113. Procedure when event of default occurs.

  1. When the commissioner has determined that an event of default has occurred with respect to any eligible public depository and has determined and fixed the date of such occurrence, he or she shall proceed in the following manner:
    1. He shall forthwith seize and take possession of all eligible collateral, maintained or pledged, belonging to the defaulting depository, wherever held in custody.
    2. Within twenty days after seizing and taking possession of all eligible collateral pursuant to paragraph (a) of this subsection (1), the commissioner shall ascertain the aggregate amount of public deposits held by the defaulting depository, as disclosed by the records of such depository, and the portion thereof that is insured by the federal deposit insurance corporation or its successor, and shall notify each affected governmental unit of the amount of its deposit, as so disclosed, and the portion thereof that is so insured, and shall require each affected governmental unit to provide him or her with a verified statement showing the amount of its deposit, as disclosed by its own records, within thirty days after receipt of such notification.
    3. Upon receipt of all verified statements from an affected governmental unit, he shall determine and fix the net deposit liability of the defaulting depository to such affected governmental unit. Upon receipt of all such verified statements from all affected governmental units, he shall determine and fix the aggregate net deposit liability of the defaulting depository to all affected governmental units.
    4. The commissioner shall proceed to liquidate the eligible collateral maintained or pledged by the defaulting depository which he had theretofore seized and may, from time to time, apply the amount realized from such liquidation against the net deposit liability to any governmental unit. The commissioner shall maintain a reserve from such amount realized for the payment of the aggregate net deposit liability to all affected governmental units until payment is made to all affected governmental units.
    5. In the event the federal deposit insurance corporation or its successor is appointed and acts as liquidator or receiver of any eligible public depository under state or federal law, those duties specified in this section to be performed by the commissioner may, where the commissioner deems appropriate, be delegated by the commissioner to and performed by the federal deposit insurance corporation or its successor.

Source: L. 75: Entire article added, p. 404, § 1, effective July 1. L. 87: (1)(e) amended, p. 469, § 4, effective May 1. L. 89: (1)(b) to (1)(d) amended, p. 614, § 11, effective April 19. L. 2004: IP(1), (1)(b), and (1)(e) amended, p. 144, § 37, effective July 1.

11-47-114. Assessments made - exceptions. (Repealed)

Source: L. 75: Entire article added, p. 404, § 1, effective July 1. L. 2004: Entire section repealed, p. 145, § 38, effective July 1.

11-47-115. When assessments payable - procedure if not paid. (Repealed)

Source: L. 75: Entire article added, p. 405, § 1, effective July 1. L. 2004: Entire section repealed, p. 145, § 39, effective July 1.

11-47-116. Disposition of assessments - subrogation of claims - expenses. (Repealed)

Source: L. 75: Entire article added, p. 405, § 1, effective July 1. L. 2004: Entire section repealed, p. 145, § 40, effective July 1.

11-47-117. No impairment of obligations. (Repealed)

Source: L. 75: Entire article added, p. 405, § 1, effective July 1. L. 2004: Entire section repealed, p. 146, § 41, effective July 1.

11-47-118. Public moneys to be deposited only in eligible public depositories - penalty for violation.

  1. It shall be unlawful for any public moneys to be deposited in any state-chartered savings and loan association, or in any federally chartered savings and loan association having its principal office in this state, other than one that has been designated by the commissioner as an eligible public depository, unless the entire amount of such deposit is insured by the federal deposit insurance corporation or its successor.
  2. Any official of a governmental unit having custody of or control over public moneys who violates the provisions of subsection (1) of this section is guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine of not less than two hundred dollars nor more than five hundred dollars, which fine shall be mandatory, and, upon any such conviction, the court may adjudge that he be removed from office.
  3. Notwithstanding any other provision of this section to the contrary, nothing shall be construed to prevent a savings and loan association which is an eligible public depository operating pursuant to the provisions of this article from being or acting as an agent in behalf of any public entity for the purposes of making investments as authorized by part 6 of article 75 of title 24, C.R.S. Any such savings and loan association shall maintain such accounting records as are necessary to readily distinguish between the activities authorized by said part 6 of article 75 of title 24, C.R.S., and the purposes of the public deposit protection requirements imposed upon it as a condition of being an eligible public depository. The financial services board may promulgate such rules and regulations as it deems desirable to ensure that the activities authorized under part 6 of article 75 of title 24, C.R.S., and the protection of public funds pursuant to this article are not commingled.

Source: L. 75: Entire article added, p. 406, § 1, effective July 1. L. 89: (3) added, p. 615, § 12, effective April 19. L. 93: (3) amended, p. 1454, § 18, effective June 6. L. 2004: (1) amended, p. 146, § 42, effective July 1.

11-47-119. Liability of officials of governmental units.

No official of a governmental unit who acted in good faith in selecting, designating, or approving any eligible public depository for the deposit of public moneys in his custody or under his control shall be liable for any loss of public moneys deposited therein by reason of the occurrence of an event of default with respect to such depository.

Source: L. 75: Entire article added, p. 406, § 1, effective July 1.

11-47-120. Authority to accept deposits - acceptance of insured deposits.

Any state-chartered savings and loan association, or any federally chartered savings and loan association having its principal office in this state that is authorized by the laws of this state or of the United States to accept deposit accounts or savings deposits, is authorized to accept and hold, and any governmental unit is authorized to make and maintain in such association, deposits of public moneys as provided in this article. Any such association is authorized to accept and hold, and any governmental unit is authorized to make and maintain therein, deposits of public moneys to the extent that the full amount thereof is insured by the federal deposit insurance corporation or its successor, even though such association has not elected to be designated as an eligible public depository under the provisions of this article.

Source: L. 75: Entire article added, p. 406, § 1, effective July 1. L. 2004: Entire section amended, p. 146, § 43, effective July 1.

ARTICLE 47.5 SAVINGS AND LOAN GUARANTY ACT

11-47.5-101 to 11-47.5-109. (Repealed)

Source: L. 91: Entire article repealed, p. 666, § 7, effective May 31.

Editor's note: This article was added in 1987. For amendments to this article prior to its repeal in 1991, consult the Colorado statutory research explanatory note and the table itemizing the replacement volumes and supplements to the original volume of C.R.S. 1973 beginning on page vii in the front of this volume.

ARTICLE 48 ELECTRONIC FUNDS TRANSFERS FOR FINANCIAL INSTITUTIONS OTHER THAN BANKS

Cross references: For electronic funds transfers for banks, see article 105 of this title.

Section

11-48-101. Applicability - definition.

This article applies to any savings and loan association organized under article 41 of this title or under federal law and having its principal office in this state and any credit union organized under article 30 of this title or federal law and having its principal office in this state. As used in this article, "financial institution" means any such savings and loan association or credit union.

Source: L. 77: Entire article added, p. 553, § 3, effective May 20. L. 2003: Entire section amended, p. 1208, § 13, effective July 1. L. 2013: Entire section amended, (SB 13-154), ch. 282, p. 1472, § 30, effective July 1.

11-48-102. Limitations.

This article shall be construed to authorize any financial institution to engage in electronic funds transfers only to the extent of transactions authorized in applicable law governing such institutions. The provisions of this article shall govern as to communications facilities owned or controlled by such institutions.

Source: L. 77: Entire article added, p. 553, § 3, effective May 20.

11-48-103. Communications facility.

As used in this article, "communications facility" means an attended or unattended electronic information processing device, other than an ordinary telephone instrument, located in this state separate and apart from a financial institution and through which account holders and financial institutions may engage in transactions by means of either the instant transmission (online) of electronic impulses to and from the financial institution or its data processing agent or the recording of electronic impulses or other indicia of a transaction for delayed transmission (off-line) to a financial institution or its data processing agent. Such a device located on the premises of a financial institution shall be a communications facility if such device is utilized by the account holders of other financial institutions.

Source: L. 77: Entire article added, p. 553, § 3, effective May 20.

11-48-104. No operation by financial institution employees.

No communications facility located separate and apart from a financial institution shall be operated by an employee or agent of any financial institution, and no agent or employee of the retailer where a facility is located who operates it shall be deemed to be the agent or employee of any financial institution using the facility or with which transactions are accomplished by means of the facility. No employee or agent of any financial institution shall be stationed at any communications facility located separate and apart from the financial institution except on a temporary basis for the purpose of instructing customers in the use of facilities or for servicing or observing the operation of such facilities.

Source: L. 77: Entire article added, p. 554, § 3, effective May 20.

11-48-105. Sharing.

  1. A financial institution shall make any communications facility available to any similar financial institution for the use of its account holders on the basis of fair, equitable, and nondiscriminatory standards and charges. For purposes of this section, a savings and loan association is similar to any other savings and loan association and a credit union is similar to any other credit union. A communications facility on the premises of a financial institution is not subject to the mandatory access provisions of this subsection (1). Such a facility may but is not required to be made available for use by the account holders of any similar financial institution.
  2. A financial institution may but is not required to make the use of any communications facility available to a dissimilar financial institution and to any state or national bank in this state for the use of its account holders. Any such use shall be on a fair and reasonable contractual basis.

Source: L. 77: Entire article added, p. 554, § 3, effective May 20. L. 2013: (1) amended, (SB 13-154), ch. 282, p. 1472, § 31, effective July 1.

11-48-106. Consumer protection.

  1. Every financial institution using a communications facility shall provide its account holders, at the time the facility is used, with a receipt or record of each transaction initiated at a facility. Such receipt or record shall be admissible as evidence in any legal action or proceeding and shall constitute prima facie proof of the transaction evidenced by such receipt or record. When a financial institution furnishes a statement of account to an account holder, such statement shall reflect each transaction affecting such account made by the account holder at a communications facility during the period covered by the statement.
  2. With respect to any card or other device issued to an account holder for use at a communications facility, any account holder whose card or device is lost or stolen and subsequently used by an unauthorized person shall only be liable for the lesser of fifty dollars or the amount of money, goods, or services obtained by the unauthorized use prior to notice to the financial institution which issued the card or device of the theft or loss. If the unauthorized use occurs through no fault of the account holder, no liability shall be imposed on the account holder.
  3. No account holder shall be held liable for any loss occurring as the result of any tampering or manipulation of a communications facility unless he performs or authorizes such acts.

Source: L. 77: Entire article added, p. 554, § 3, effective May 20.

11-48-107. Access to automated clearinghouse.

Effective January 1, 1978, an automated clearinghouse in this state shall permit direct access to or membership in such clearinghouse by any financial institution if such access is not prohibited by any rule or regulation of the federal reserve board and if the financial institution agrees to abide by the rules of the clearinghouse. For purposes of this section, "automated clearinghouse" means a group of financial institutions or banks which have agreed to abide by certain rules and procedures for the purpose of exchanging payments and settling balances of participating financial institutions on computer tape to accomplish settlement of transactions by posting credits and debits to reserve balances maintained by member banks of the federal reserve systems through the federal reserve system.

Source: L. 77: Entire article added, p. 554, § 3, effective May 20.

ARTICLE 49 LIFE CARE INSTITUTIONS

Editor's note: This article 49 was added with relocations in 2017. Former C.R.S. section numbers are shown in editor's notes following those sections that were relocated. For a detailed comparison of this article 49, see the comparative tables located in the back of the index.

Section

11-49-101. Definitions.

As used in this article 49, unless the context otherwise requires:

  1. "Aged person" means any person sixty-two years of age or older.
  2. "Board" means the financial services board created in section 11-44-101.6.
  3. "Commissioner" means the state commissioner of financial services, serving in accordance with section 11-44-102.
  4. "Entrance fee" means the total of any initial or deferred transfer to or for the benefit of a provider of a sum of money or other property made or promised to be made as full or partial consideration for the acceptance or maintenance of a specified individual as a resident in a facility.
  5. "Facility" means the place in which a provider undertakes to provide life care to a resident.
  6. "Life care" means care provided, pursuant to a life care contract, for the life of an aged person, including but not limited to services such as health care, medical services, board, lodging, or other necessities.
  7. "Life care contract" means a written contract to provide life care to a person for the duration of the person's life conditioned upon the transfer of an entrance fee to the provider of the services in addition to or in lieu of the payment of regular periodic charges for the care and services involved. Any life care contract payable to or for the provider in four or more installments shall be subject to the provisions of the "Uniform Consumer Credit Code", articles 1 to 9 of title 5.
  8. "Living unit" means a room, apartment, or other area within a facility set aside for the exclusive use or control of one or more identified residents.
  9. "Person" means all corporations, associations, partnerships, or individuals, including fraternal or benevolent orders or societies.
  10. "Provider" means a person who undertakes to provide services in a facility pursuant to a life care contract.
  11. "Resident" means any person entitled pursuant to a life care contract to receive life care in a facility.
  12. "Third-party service providers" means any person, other than a provider, who is the holder of a management contract with a provider or who contracts with a provider to provide life care services to residents.

Source: L. 2017: Entire article added with relocations, (SB 17-226), ch. 159, p. 567, § 1, effective August 9.

Editor's note: This section is similar to former § 12-13-101 as it existed prior to 2017.

11-49-102. Escrow account for entrance fees.

  1. Each provider shall establish an escrow account that provides that all of any entrance fee received by the provider prior to the date the resident is permitted to occupy his or her living unit in the facility be placed in escrow with a bank, trust company, or other licensed corporate escrow agent located in Colorado and approved by the commissioner, subject to the condition that the funds may be released only as follows:
    1. If the entrance fee applies to a living unit that has been previously occupied in the facility, the entrance fee shall be released to the provider at such time as the living unit becomes available for occupancy by the new resident and is in compliance with local government regulations applicable to living units, as certified by the provider.
    2. If the entrance fee applies to a living unit that has not previously been occupied by any resident, the entrance fee shall be released to the provider at such time as the commissioner is satisfied that all of the following conditions exist:
      1. Construction or purchase of the facility has been substantially completed, and an occupancy permit covering the living unit has been issued by the local government having authority to issue the permits;
      2. A commitment has been received by the provider for any permanent mortgage loan or other long-term financing described in the statement of anticipated source and application of funds submitted by the provider and any conditions of the commitment prior to disbursement of funds thereunder have been substantially satisfied;
      3. Aggregate entrance fees received or receivable by the provider pursuant to binding life care contracts, plus the anticipated proceeds of any first mortgage loan or other long-term financing commitment, are equal to not less than ninety percent of the aggregate cost of constructing, equipping, and furnishing, or purchasing the facility and not less than ninety percent of the funds estimated in the statement of anticipated source and application of funds submitted by the provider to be necessary to fund start-up losses and assure full performance of the obligations of the provider pursuant to life care contracts.
  2. If the funds in an escrow account required to be established under subsection (1) of this section are not released within such time as provided by rules issued by the commissioner, then the funds shall be returned by the escrow agent to the persons who had made payment to the provider.
  3. An entrance fee held in escrow may be returned by the escrow agent to the person or persons who had made payment to the provider at any time upon receipt by the escrow agent of notice from the provider that the person is entitled to a refund of the entrance fee.
  4. Nothing in this section shall be interpreted as requiring the escrow of any nonrefundable application fee designated as such in the life care contract received by the provider from a prospective resident.

Source: L. 2017: Entire article added with relocations, (SB 17-226), ch. 159, p. 568, § 1, effective August 9.

Editor's note: This section is similar to former § 12-13-104 as it existed prior to 2017.

11-49-103. Withdrawal or dismissal of person - refund.

  1. If the agreement permits withdrawal or dismissal of the resident from the life care institution prior to the expiration of the agreement, with or without cause, an amount equal to the difference between the amount paid in and the amount used for the care of the resident during the time he or she remained in the institution, based upon the per capita cost to the institution as determined in a manner acceptable to the commissioner, shall be refunded to the resident; but in cases where a consideration greater than the minimum charge has been paid for accommodations above standard, a sum equal to the difference between the amount paid in and the ratio of the amount paid to the minimum consideration for standard accommodations times the current per capita cost to the institution applied to the period the resident remained in the institution shall be refunded to the resident. If the per capita cost to the institution during the period cannot be established otherwise, the cost during the period shall be deemed to be the cost at the time of the withdrawal or dismissal. For refund purposes, "cost" shall include a reasonable profit to the provider.
  2. If the provider is an organization described in section 501 (c)(3) of the federal "Internal Revenue Code of 1986", as amended, and exempt from income taxation under section 501 (a) of the federal "Internal Revenue Code of 1986", as amended, it shall be entitled to make a refund according to a schedule provided in its agreement with the resident so long as the schedule provides for amortization of the amount paid by the resident over a period of not less than sixty months or over the life expectancy of the resident if the expectancy is less than sixty months. In such case, the refund may be delayed for a reasonable period thereafter until the securing by the provider of a substitute fee from another resident or prospective resident. The provider may also deduct from any such refund amounts due it from the resident for damage done or for any other legitimate offsetting item.

Source: L. 2017: Entire article added with relocations, (SB 17-226), ch. 159, p. 569, § 1, effective August 9.

Editor's note: This section is similar to former § 12-13-105 as it existed prior to 2017.

11-49-104. Recording of lien by commissioner.

  1. The commissioner shall record with the county clerk and recorder of any county a notice of lien on behalf of all residents who enter into life care contracts with a provider to secure performance of the provider's obligations to residents pursuant to life care contracts. All reasonable costs of recording the lien shall be paid by the provider.
  2. From the time of the recording, there exists a lien for an amount equal to the reasonable value of services to be performed under a life care contract in favor of each resident on the land and improvements owned by the provider, not exempt from execution, that are listed in the notice of lien filed pursuant to subsection (3) of this section and that are located in the county in which the notice of lien is recorded.
  3. The lien shall be perfected by the commissioner by executing by affidavit the notice and claim of lien, which shall contain:
    1. The legal description of the lands and improvements to be charged with a lien;
    2. The name of the owner of the property affected;
    3. A statement providing that the lien has been filed by the commissioner pursuant to this section.
  4. The lien may be foreclosed by civil action.
  5. Any number of persons claiming liens against the same property pursuant to this section may join in the same action. If separate actions are commenced, the court may consolidate the actions. The court shall, as part of the costs, allow reasonable attorney fees for each claimant who is a party to the action.
  6. In a civil action filed pursuant to this section, the judgment shall be given in favor of each resident having a lien who has joined in the foreclosure action for the amount equal to the reasonable value of services to be performed under a life care contract in favor of each resident. The court shall order the sheriff to sell any property subject to the lien at the time judgment is given, in the same manner as real and personal property is sold on execution. The lien for the reasonable value of services to be performed under a life care contract shall be on equal footing with claims of other residents. If a sale is ordered and the property sold and the proceeds of the sale are not sufficient to discharge all liens of residents against the property, the proceeds shall be prorated among the respective residents.
  7. The liens provided for in this section are preferred to all liens, mortgages, or other encumbrances upon the property attaching subsequently to the time the lien is recorded and are preferred to all unrecorded liens, mortgages, and other encumbrances. The amount secured by any lien having priority to the lien filed pursuant to this section may not be increased without prior approval of the commissioner.
  8. The commissioner shall file a release of the lien upon proof of complete performance of all obligations to residents pursuant to life care contracts.
  9. The commissioner may subordinate any lien filed pursuant to this section to the lien of a first mortgage or other long-term financing obtained by the provider, regardless of the time at which the subsequent lien attaches.

Source: L. 2017: Entire article added with relocations, (SB 17-226), ch. 159, p. 570, § 1, effective August 9.

Editor's note: This section is similar to former § 12-13-106 as it existed prior to 2017.

11-49-105. Reserve requirements.

  1. Any provider shall maintain reserves covering obligations under all life care agreements. The reserves shall be equivalent to the sum of the following:
      1. For those debt obligations that are collateralized by the provider's facility and that require a balloon payment, the amount of interest due and payable or accrued in the next eighteen months.
      2. For purposes of this subsection (1)(a), any amounts held in reserve or escrow to fulfill debt agreements shall be considered eligible to meet the requirements of this subsection (1)(a).
      1. For all other debt obligations that are collateralized by the provider's facility, an amount equal to the next twelve months' principal and interest.
      2. For purposes of this subsection (1)(b), any amounts held in reserve or escrow to fulfill debt agreements shall be considered eligible to meet the requirements of this subsection (1)(b).
      1. An amount not less than twenty percent of the facility's operating expenses for the immediately preceding year.
      2. For purposes of this subsection (1)(c), "operating expenses":
        1. Includes all expenses of the facility, except interest included in subsections (1)(a) and (1)(b) of this section and depreciation or amortization expenses; and
        2. Means budgeted expenses pursuant to a budget approved by the governing board of the provider, for providers in operation less than twelve months.
  2. The reserves must consist of one or more of the following:
    1. Savings accounts or certificates of deposit in state or national banks located in this state that are members of the federal deposit insurance corporation or any successor agency thereto;
    2. Savings accounts or savings certificates in state or federal savings or loan associations located in this state that are members of the federal deposit insurance corporation or any successor agency thereto;
    3. Notes receivable from residents to the extent of the portion due and payable within twelve months;
    4. Bonds and stocks selected from an approved list, as determined by the commissioner. If stocks, bonds, and securities that are not on the approved list are part of the reserves, and if they are to be retained as part of the reserves, it shall not be necessary that the unapproved stocks, bonds, and securities be disposed of immediately, but they shall be disposed of in accordance with rules promulgated pursuant to this article 49, which disposal shall be accomplished in a gradual manner so as to avoid loss to providers. Securities that, although not on the approved list, should be retained in the reserve for reasons acceptable to the commissioner may be retained with the specific approval of the commissioner. Investments in stocks and bonds will be valued at their fair market value.
      1. Except as provided in subsection (2)(e)(II) of this section, accounts receivable with respect to life care contracts that are:
      2. Accounts receivable that are eligible under this subsection (2)(e) may be used to fulfill no more than fifty percent of the provider's total reserve requirement.

      (A) Not considered past due by the provider if owed to the provider by a natural person;

      (B) Due from the United States or any agency thereof, any state in the United States or any agency thereof, or any institution, pension fund, or trust fund from which collection is reasonably assured.

    5. Investment certificates or shares in open-end investment trusts whose management has been managing a mutual fund registered under the federal "Investment Company Act of 1940", 15 U.S.C. secs. 80a-1 to 80a-64, or whose management has been registered as an investment adviser under the federal "Investment Advisers Act of 1940", 15 U.S.C. secs. 80b-1 to 80b-21, and in either case currently has at least one hundred million dollars under its supervision, is qualified for sale in Colorado, has at least forty percent of its directors or trustees not affiliated with the fund's management company or principal underwriter or any of their affiliates, is registered under the federal "Investment Company Act of 1940", and is a fund listed as qualifying under rules maintained by the secretary of state in cooperation with the division of insurance;
    6. A surety bond in a form acceptable to the commissioner.
  3. Any person or organization that entered into life care contracts prior to January 1, 1974, but that was not required prior to that date to obtain a license is not required to maintain reserves covering obligations assumed under any such contract entered into prior to January 1, 1974.

Source: L. 2017: Entire article added with relocations, (SB 17-226), ch. 159, p. 571, § 1, effective August 9. L. 2019: IP(2) amended and (2)(g) added, (HB 19-1043), ch. 66, p. 240, § 1, effective August 2.

Editor's note:

  1. This section is similar to former § 12-13-107 as it existed prior to 2017.
  2. Section 2 of chapter 66 (HB 19-1043), Session Laws of Colorado 2019, provides that the act changing this section applies to compliance with reserve requirements occurring on or after August 2, 2019.

11-49-106. Annual report by providers - fee.

  1. Each provider shall file an annual report with the commissioner within ninety days after the end of its fiscal year that contains the certified financial statements for each facility and such other information as may be required by the commissioner. The annual report shall be made in a form prescribed by the commissioner.
  2. A provider shall amend its annual report on file with the commissioner if an amendment is necessary to prevent the report from containing a material misstatement of fact or omission of a material fact.
  3. A provider shall make its annual report available to residents upon request.
  4. The failure to file an annual report within the time prescribed in subsection (1) of this section shall constitute a violation of this article 49.

Source: L. 2017: Entire article added with relocations, (SB 17-226), ch. 159, p. 573, § 1, effective August 9.

Editor's note: This section is similar to former § 12-13-108 as it existed prior to 2017.

11-49-107. Examination - fees.

The commissioner may conduct an examination of the affairs of any provider as often as the commissioner deems it necessary for the protection of the interests of the people of this state. Providers shall maintain copies of their books and records in Colorado to provide access for the purposes of this article 49. The commissioner shall assess each provider at least semiannually, to cover the annual direct and indirect costs of examinations, supervision, and administration conducted pursuant to the provisions of this section. The assessments shall be calculated in terms of cents per thousand dollars of total escrowed entrance fees and reserves maintained. The assessment calculation, or ratio of the assessment charged to total escrowed entrance fees and reserves maintained, shall be alike in all cases. On or before the dates specified by the commissioner, each association shall pay its assessment. If deemed necessary, the commissioner may estimate a per diem rate to be charged for examinations and charge a provider for the actual cost of any examination documented by the commissioner.

Source: L. 2017: Entire article added with relocations, (SB 17-226), ch. 159, p. 573, § 1, effective August 9.

Editor's note: This section is similar to former § 12-13-110 as it existed prior to 2017.

11-49-108. Rules.

The board may promulgate reasonable rules in accordance with article 4 of title 24 for effectuating any provision of this article 49.

Source: L. 2017: Entire article added with relocations, (SB 17-226), ch. 159, p. 573, § 1, effective August 9.

Editor's note: This section is similar to former § 12-13-111 as it existed prior to 2017.

11-49-109. Violation.

Any person acting in the capacity of a provider who enters into a life care contract, or extends the term of an existing life care contract, without acting in compliance with the provisions of this article 49 is guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine of not more than ten thousand dollars, or by imprisonment in the county jail for not more than six months, or by both such fine and imprisonment.

Source: L. 2017: Entire article added with relocations, (SB 17-226), ch. 159, p. 573, § 1, effective August 9.

Editor's note: This section is similar to former § 12-13-112 as it existed prior to 2017.

11-49-110. Article does not apply to facilities licensed by department of public health and environment.

The provisions of this article 49 shall not apply to any hospital or other facility that the department of public health and environment is authorized to license pursuant to part 1 of article 1.5 and part 1 of article 3 of title 25; except that nursing care facilities and assisted living residences that are part of the facility of a provider as defined in section 11-49-101 shall be subject to the provisions of this article 49.

Source: L. 2017: Entire article added with relocations, (SB 17-226), ch. 159, p. 573, § 1, effective August 9.

Editor's note: This section is similar to former § 12-13-113 as it existed prior to 2017.

11-49-111. Life care contract - content.

  1. Each life care contract shall be written in a clear and coherent manner using words with common and everyday meanings and shall:
    1. Show the value of all property transferred, including but not limited to donations, subscriptions, fees, and any other amounts initially paid or payable by or on behalf of the prospective resident;
    2. Show all the services that are to be provided by the provider to the prospective resident, including, in detail, all items that the prospective resident will receive, such as board, room, clothing, incidentals, medical care, transportation, and burial, and whether the items will be provided for a designated time period or for life and the monthly charge for the services;
    3. Be accompanied by a financial statement showing in reasonable detail the financial condition of the provider, including a statement of earnings for the previous twenty-four-month period, or such shorter period if the facility has been in operation for a lesser period, that shall be furnished to the prospective resident;
    4. Specify the monthly service fee and whether the fee is subject to adjustment;
    5. Explicitly state what rights, if any, a resident will have to participate either individually or as part of a group of residents in management and financial decisions affecting the facility.

Source: L. 2017: Entire article added with relocations, (SB 17-226), ch. 159, p. 574, § 1, effective August 9.

Editor's note: This section is similar to former § 12-13-114 as it existed prior to 2017.

11-49-112. Register.

  1. Every provider shall maintain a register setting forth the following facts concerning each person residing in the life care institution:
    1. Name;
    2. Last previous address;
    3. Age;
    4. Nearest of kin, if any;
    5. Mother's maiden name;
    6. The person responsible for each resident's care and maintenance;
    7. Such other data as the commissioner may reasonably require.

Source: L. 2017: Entire article added with relocations, (SB 17-226), ch. 159, p. 574, § 1, effective August 9.

Editor's note: This section is similar to former § 12-13-115 as it existed prior to 2017.

11-49-113. Advertisements and solicitations of life care contracts - requirements.

Any report, circular, public announcement, certificate, or financial statement, or any other printed matter or advertising material that is designed for or used to solicit or induce persons to enter into any life care contract, and that lists or refers to the name of any individual or organization as being interested in or connected with the person, association, or corporation to perform the contract, shall clearly state the extent of financial responsibility assumed by that individual or organization for the person, association, or corporation and the fulfillment of its contracts.

Source: L. 2017: Entire article added with relocations, (SB 17-226), ch. 159, p. 575, § 1, effective August 9.

Editor's note: This section is similar to former § 12-13-116 as it existed prior to 2017.

11-49-114. Injunction against violations - prosecution.

  1. The commissioner may bring an action, through the attorney general, to enjoin the threatened violation or continued violation of the provisions of this article 49 or of any of the rules promulgated pursuant to this article 49, in the district court for the county in which the violation occurred or is about to occur. Any proceeding under the provisions of this section shall be subject to the Colorado rules of civil procedure; except that the commissioner shall not be required to allege facts necessary to show or tending to show the lack of an adequate remedy at law or to show or tending to show irreparable damage or loss. The court may award the attorney general all costs incurred in bringing any action under this section.
  2. Upon application by the commissioner, the attorney general or the district attorney of any judicial district in this state shall institute and prosecute an action for the criminal violation of any provision of this article 49.

Source: L. 2017: Entire article added with relocations, (SB 17-226), ch. 159, p. 575, § 1, effective August 9.

Editor's note: This section is similar to former § 12-13-117 as it existed prior to 2017.

11-49-115. Local regulations.

The provisions of this article 49 shall not prevent local authorities of any county, city, town, or city and county, within the reasonable exercise of the police power, from adopting rules, by ordinance or resolution, prescribing standards of sanitation, health, and hygiene for facilities that are not in conflict with the provisions of this article 49 or the rules adopted by the commissioner pursuant thereto, and requiring a local health permit for the maintenance or conduct of any such facility within the county, city, town, or city and county.

Source: L. 2017: Entire article added with relocations, (SB 17-226), ch. 159, p. 575, § 1, effective August 9.

Editor's note: This section is similar to former § 12-13-118 as it existed prior to 2017.

SECURITIES

Fiduciaries and Trusts

ARTICLE 50 TRANSFERS TO MINORS

Editor's note: This article, formerly known as the "Colorado Uniform Gifts to Minors Act", was numbered as article 3 of chapter 125, C.R.S. 1963. The substantive provisions of this article were repealed and reenacted in 1984, resulting in the addition, relocation, and elimination of sections as well as subject matter. For amendments to this article prior to 1984, consult the Colorado statutory research explanatory note and the table itemizing the replacement volumes and supplements to the original volume of C.R.S. 1973 beginning on page vii in the front of this volume. Former C.R.S. section numbers are shown in editor's notes following those sections that were relocated.

Law reviews: For article, "Statutory Custodianship Trusts", see 13 Colo. Law. 786 (1984); for article, "Colorado Uniform Transfers to Minors Act", see 13 Colo. Law. 2223 (1984); for article, "Uniform State Laws of Interest to Colorado Probate Lawyers", see 14 Colo. Law. 1961 (1985); for article, "Anticipating Disabilities: Voluntary Planning Opportunities in Colorado", see 17 Colo. Law. 437 (1988); for article, "Standards of Prudent Investment for Minors Act Custodians", see 19 Colo. Law. 39 (1990); for article, "Current Issues Relating to Transfers to Minors", see 29 Colo. Law. 73 (Oct. 2000); for article, "Age Requirements in Colorado: A Guide for Estate Planners", see 34 Colo. Law. 87 (Aug. 2005); for article, "Retaining Control of Gifts to Minors: UTMA and IRC 2503(c) Trust Options", see 34 Colo. Law. 39 (Nov. 2005); for article, "The Uniform Transfers to Minors Act: Extending the Period of Protection", see 35 Colo. Law. 27 (Jan. 2006).

Section

11-50-101. Short title.

This article shall be known and may be cited as the "Colorado Uniform Transfers to Minors Act".

Source: L. 84: Entire article R&RE, p. 383, § 1, effective July 1.

Editor's note: This section is similar to former § 11-50-101 as it existed prior to 1984.

11-50-102. Definitions.

As used in this article, unless the context otherwise requires:

  1. "Adult" means an individual who has attained the age of twenty-one years.
  2. "Benefit plan" means an employer's plan for the benefit of an employee or partner.
  3. "Broker" means a person lawfully engaged in the business of effecting transactions in securities or commodities for the person's own account or for the account of others.
  4. "Conservator" means a person appointed or qualified by a court to act as general, limited, or temporary guardian of a minor's property or a person legally authorized to perform substantially the same functions.
  5. "Court" means the district or probate court which would have jurisdiction of the minor's estate, if he had property other than custodial property, as provided in section 15-14-108 (1), C.R.S.
  6. "Custodial property" means:
    1. Any interest in property transferred to a custodian under this article; and
    2. The income from and proceeds of that interest in property.
  7. "Custodian" means a person so designated under section 11-50-110 or a successor or substitute custodian designated under section 11-50-119.
  8. "Financial institution" means a bank, trust company, savings institution, or credit union, chartered and supervised under state or federal law.
  9. "Legal representative" means an individual's personal representative or conservator.
  10. "Member of the minor's family" means the minor's parent, stepparent, spouse, grandparent, brother, sister, uncle, or aunt, whether of the whole or half blood or by adoption.
  11. "Minor" means an individual who has not attained the age of twenty-one years.
  12. "Person" means an individual, corporation, organization, or other legal entity.
  13. "Personal representative" means an executor, administrator, successor personal representative, or special administrator of a decedent's estate or a person legally authorized to perform substantially the same functions.

    (13.5) "Qualified minor's trust" means a trust, including a trust created by a custodian, of which a minor is the sole current beneficiary and that satisfies the requirements of section 2503 (c) of the federal "Internal Revenue Code of 1986" and the regulations implementing that section.

  14. "State" includes any state of the United States, the District of Columbia, the Commonwealth of Puerto Rico, and any territory or possession subject to the legislative authority of the United States.
  15. "Transfer" means a transaction that creates custodial property under section 11-50-110.
  16. "Transferor" means a person who makes a transfer under this article.
  17. "Trust company" means a financial institution, corporation, or other legal entity, authorized to exercise general trust powers.

Source: L. 84: Entire article R&RE, p. 383, § 1, effective July 1. L. 2000: (5) amended, p. 1832, § 2, effective January 1, 2001. L. 2007: (13.5) added, p. 126, § 2, effective July 1.

Editor's note: This section is similar to former § 11-50-102 as it existed prior to 1984.

11-50-103. Scope and jurisdiction.

  1. This article applies to a transfer that refers to this article in the designation under section 11-50-110 (1) by which the transfer is made if, at the time of the transfer, the transferor, the minor, or the custodian is a resident of this state or the custodial property is located in this state. The custodianship so created remains subject to this article despite a subsequent change in residence of a transferor, the minor, or the custodian, or the removal of custodial property from this state.
  2. A person designated as custodian under this article is subject to personal jurisdiction in this state with respect to any matter relating to the custodianship.
  3. A transfer that purports to be made and which is valid under the uniform transfers to minors act, the uniform gifts to minors act, or a substantially similar act of another state is governed by the law of the designated state and may be executed and is enforceable in this state if, at the time of the transfer, the transferor, the minor, or the custodian is a resident of the designated state or the custodial property is located in the designated state.

Source: L. 84: Entire article R&RE, p. 384, § 1, effective July 1.

11-50-104. Nomination of custodian.

  1. A person having the right to designate the recipient of property transferable upon the occurrence of a future event may revocably nominate a custodian to receive the property for a minor beneficiary upon the occurrence of the event by naming the custodian followed in substance by the words: "as custodian for   (name of minor) under the "Colorado Uniform Transfers to Minors Act"". The nomination may name one or more persons as substitute custodians to whom the property must be transferred, in the order named, if the first nominated custodian dies before the transfer or is unable, declines, or is ineligible to serve. The nomination may be made in a will, a trust, a deed, an instrument exercising a power of appointment, or a writing designating a beneficiary of contractual rights which is registered with or delivered to the payor, issuer, or other obligor of the contractual rights.
  2. A custodian nominated under this section must be a person to whom a transfer of property of that kind may be made under section 11-50-110 (1).
  3. The nomination of a custodian under this section does not create custodial property until the nominating instrument becomes irrevocable or a transfer to the nominated custodian is completed under section 11-50-110. Unless the nomination of a custodian has been revoked, upon the occurrence of the future event the custodianship becomes effective and the custodian shall enforce a transfer of the custodial property pursuant to section 11-50-110.

Source: L. 84: Entire article R&RE, p. 385, § 1, effective July 1.

11-50-105. Transfer by gift or exercise of power of appointment.

A person may make a transfer by irrevocable gift to, or the irrevocable exercise of a power of appointment in favor of, a custodian for the benefit of a minor pursuant to section 11-50-110.

Source: L. 84: Entire article R&RE, p. 385, § 1, effective July 1.

ANNOTATION

Law reviews. For article, "Child Support Obligations After Death of the Supporting Parent", see 16 Colo. Law. 790 (1987).

11-50-106. Transfer authorized by will or trust.

  1. A personal representative or trustee may make an irrevocable transfer pursuant to section 11-50-110 to a custodian for the benefit of a minor as authorized in the governing will or trust.
  2. If the testator or settlor has nominated a custodian under section 11-50-104 to receive the custodial property, the transfer must be made to that person.
  3. If the testator or settlor has not nominated a custodian under section 11-50-104, or all persons so nominated as custodian die before the transfer or are unable, decline, or are ineligible to serve, the personal representative or the trustee, as the case may be, shall designate the custodian from among those eligible to serve as custodian for property of that kind under section 11-50-110 (1).

Source: L. 84: Entire article R&RE, p. 385, § 1, effective July 1.

ANNOTATION

Law reviews. For article, "Child Support Obligations After Death of the Supporting Parent", see 16 Colo. Law. 790 (1987).

11-50-107. Other transfer by fiduciary.

  1. Subject to subsection (3) of this section, a personal representative or trustee may make an irrevocable transfer to another adult or trust company as custodian for the benefit of a minor pursuant to section 11-50-110, in the absence of a will or under a will or trust that does not contain an authorization to do so.
  2. Subject to subsection (3) of this section, a conservator may make an irrevocable transfer to another adult or trust company as custodian for the benefit of the minor pursuant to section 11-50-110.
  3. A transfer under subsection (1) or (2) of this section may be made only if:
    1. The personal representative, trustee, or conservator considers the transfer to be in the best interest of the minor;
    2. The transfer is not prohibited by or inconsistent with provisions of the applicable will, trust agreement, or other governing instrument; and
    3. The transfer is authorized by the court if it exceeds ten thousand dollars in value.

Source: L. 84: Entire article R&RE, p. 385, § 1, effective July 1.

ANNOTATION

Law reviews. For article, "Child Support Obligations After Death of the Supporting Parent", see 16 Colo. Law. 790 (1987).

11-50-108. Transfer by obligor.

  1. Subject to subsections (2) and (3) of this section, a person not subject to section 11-50-106 or 11-50-107 who holds property of or owes a liquidated debt to a minor not having a conservator may make an irrevocable transfer to a custodian for the benefit of the minor pursuant to section 11-50-110.
  2. If a person having the right to do so under section 11-50-104 has nominated a custodian under that section to receive the custodial property, the transfer must be made to that person.
  3. If no custodian has been nominated under section 11-50-104, or all persons so nominated as custodian die before the transfer or are unable, decline, or are ineligible to serve, a transfer under this section may be made to an adult member of the minor's family or to a trust company unless the property exceeds ten thousand dollars in value.

Source: L. 84: Entire article R&RE, p. 386, § 1, effective July 1.

ANNOTATION

Law reviews. For article, "JDF 999 Collection of Personal Property by Affidavit Pursuant to CRS §§ 15-12-1201 and -1202", see 42 Colo. Law. 49 (June 2013).

11-50-109. Receipt for custodial property.

A written acknowledgment of delivery by a custodian constitutes a sufficient receipt and discharge for custodial property transferred to the custodian pursuant to this article.

Source: L. 84: Entire article R&RE, p. 386, § 1, effective July 1.

11-50-110. Manner of creating custodial property and effecting transfer - designation of initial custodian - control.

  1. Custodial property is created and a transfer is made whenever:
    1. An uncertificated security or a certificated security in registered form is either:
      1. Registered in the name of the transferor, an adult other than the transferor, or a trust company, followed in substance by the words: "as custodian for   (name of minor) under the "Colorado Uniform Transfers to Minors Act""; or
      2. Delivered if in certificated form, or any document necessary for the transfer of an uncertificated security is delivered, together with any necessary endorsement to an adult other than the transferor or to a trust company as custodian, accompanied by an instrument in substantially the form set forth in subsection (2) of this section;
    2. Money is paid or delivered to a broker or financial institution for credit to an account in the name of the transferor, an adult other than the transferor, or a trust company, followed in substance by the words: "as custodian for   (name of minor) under the "Colorado Uniform Transfers to Minors Act"";
    3. The ownership of a life or endowment insurance policy or annuity contract is either:
      1. Registered with the issuer in the name of the transferor, an adult other than the transferor, or a trust company, followed in substance by the words: "as custodian for   (name of minor) under the "Colorado Uniform Transfers to Minors Act""; or
      2. Assigned in a writing delivered to an adult other than the transferor or to a trust company whose name in the assignment is followed in substance by the words: "as custodian for   (name of minor) under the "Colorado Uniform Transfers to Minors Act"";
    4. An irrevocable exercise of a power of appointment or an irrevocable present right to future payment under a contract is the subject of a written notification delivered to the payor, issuer, or other obligor that the right is transferred to the transferor, an adult other than the transferor, or a trust company, whose name in the notification is followed in substance by the words: "as custodian for   (name of minor) under the "Colorado Uniform Transfers to Minors Act"";
    5. An interest in real property is recorded in the name of the transferor, an adult other than the transferor, or a trust company, followed in substance by the words: "as custodian for   (name of minor) under the "Colorado Uniform Transfers to Minors Act"";
    6. A certificate of title issued by a department or agency of a state or of the United States which evidences title to tangible personal property is either:
      1. Issued in the name of the transferor, an adult other than the transferor, or a trust company, followed in substance by the words: "as custodian for   (name of minor) under the "Colorado Uniform Transfers to Minors Act""; or
      2. Delivered to an adult other than the transferor or to a trust company, endorsed to that person, followed in substance by the words: "as custodian for   (name of minor) under the "Colorado Uniform Transfers to Minors Act""; or
    7. An interest in any property not described in paragraphs (a) to (f) of this subsection (1) is transferred to an adult other than the transferor or to a trust company by written instrument in substantially the form set forth in subsection (2) of this section.
  2. An instrument in the following form satisfies the requirements of paragraphs (a)(II) and (g) of subsection (1) of this section:

    (Signature)

    (Signature of Custodian)

  3. A transferor shall place the custodian in control of the custodial property as soon as practicable.

TRANSFER UNDER THE "COLORADO UNIFORM TRANSFERS TO MINORS ACT"

I, (name of transferor or name and representative capacity if a fiduciary) hereby transfer to (name of custodian), as custodian for (name of minor) under the "Colorado Uniform Transfers to Minors Act", the following: (insert a description of the custodial property sufficient to identify it). Date: _________________ _________________________________

(name of custodian) acknowledges receipt of the property described above as custodian for the minor named above under the "Colorado Uniform Transfers to Minors Act". Dated: ________________ ________________________________

Source: L. 84: Entire article R&RE, p. 386, § 1, effective July 1.

Editor's note: This section is similar to former § 11-50-103 as it existed prior to 1984.

11-50-111. Single custodianship.

A transfer may be made only for one minor, and only one person may be the custodian. All custodial property held under this article by the same custodian for the benefit of the same minor constitutes a single custodianship.

Source: L. 84: Entire article R&RE, p. 388, § 1, effective July 1.

Editor's note: This section is similar to former § 11-50-103 as it existed prior to 1984.

11-50-112. Validity and effect of transfer.

  1. The validity of a transfer made in a manner prescribed in this article is not affected by:
    1. Failure of the transferor to comply with section 11-50-110 (3) concerning possession and control;
    2. Designation of an ineligible custodian, except designation of the transferor in the case of property for which the transferor is ineligible to serve as custodian under section 11-50-110 (1); or
    3. Death or incapacity of a person nominated under section 11-50-104 or designated under section 11-50-110 as custodian or the disclaimer of the office by that person.
  2. A transfer made pursuant to section 11-50-110 is irrevocable, and the custodial property is indefeasibly vested in the minor, but the custodian has all the rights, powers, duties, and authority provided in this article, and neither the minor nor the minor's legal representative has any right, power, duty, or authority with respect to the custodial property except as provided in this article.
  3. By making a transfer, the transferor incorporates in the disposition all the provisions of this article and grants to the custodian, and to any third person dealing with a person designated as custodian, the respective powers, rights, and immunities provided in this article.

Source: L. 84: Entire article R&RE, p. 388, § 1, effective July 1.

11-50-113. Care of custodial property.

  1. A custodian shall:
    1. Take control of custodial property;
    2. Register or record title to custodial property if appropriate; and
    3. Collect, hold, manage, invest, and reinvest custodial property.
  2. In dealing with custodial property, a custodian shall observe the standard of care that would be observed by a prudent person dealing with property of another and is not limited by any other statute restricting investments by fiduciaries. If a custodian has a special skill or expertise or is named custodian on the basis of representations of a special skill or expertise, the custodian shall use that skill or expertise. However, a custodian, in the custodian's discretion and without liability to the minor or the minor's estate, may retain any custodial property received from a transferor.
  3. A custodian may invest in or pay premiums on life insurance or endowment policies on:
    1. The life of the minor only if the minor or the minor's estate is the sole beneficiary; or
    2. The life of another person in whom the minor has an insurable interest only to the extent that the minor, the minor's estate, or the custodian in the capacity of custodian is the irrevocable beneficiary.
  4. A custodian at all times shall keep custodial property separate and distinct from all other property in a manner sufficient to identify it clearly as custodial property of the minor. Custodial property consisting of an undivided interest is so identified if the minor's interest is held as a tenant in common and is fixed. Custodial property subject to recordation is so identified if it is recorded, and custodial property subject to registration is so identified if it is either registered, or held in an account designated, in the name of the custodian, followed in substance by the words: "as a custodian for   (name of minor) under the "Colorado Uniform Transfers to Minors Act"".
  5. A custodian shall keep records of all transactions with respect to custodial property, including information necessary for the preparation of the minor's tax returns, and shall make them available for inspection at reasonable intervals by a parent or legal representative of the minor or by the minor if the minor has attained the age of fourteen years.

Source: L. 84: Entire article R&RE, p. 388, § 1, effective July 1.

Editor's note: This section is similar to former § 11-50-105 as it existed prior to 1984.

ANNOTATION

Law reviews. For article, "The Prudent Investor Rule as it Affects Fiduciary Investments", see 21 Colo. Law. 1883 (1992).

The standard of care set forth in subsection (2) applies exclusively to custodians and not to any other fiduciaries. Buder v. Sartore, 774 P.2d 1383 (Colo. 1989).

Post-1984 purchases of penny stocks which father made as custodian of children's funds violated the custodial standard of care set forth in subsection (2). Buder v. Sartore, 774 P.2d 1383 (Colo. 1989).

11-50-114. Powers of custodian.

  1. A custodian, acting in a custodial capacity, has all the rights, powers, and authority over custodial property that unmarried adult owners have over their own property, but a custodian may exercise those rights, powers, and authority in that capacity only.

    (1.5) At any time, a custodian may transfer part or all of a custodial property to a qualified minor's trust without a court order. Such a transfer terminates the custodianship to the extent of the transfer.

  2. This section does not relieve a custodian from liability for breach of section 11-50-113.

Source: L. 84: Entire article R&RE, p. 389, § 1, effective July 1. L. 2007: (1.5) added, p. 126, § 3, effective July 1.

Editor's note: This section is similar to former § 11-50-105 as it existed prior to 1984.

11-50-115. Use of custodial property.

  1. A custodian may deliver or pay to the minor or expend for the minor's benefit so much of the custodial property as the custodian considers advisable for the use and benefit of the minor, without court order and without regard to:
    1. The duty or ability of the custodian personally or of any other person to support the minor; or
    2. Any other income or property of the minor which may be applicable or available for that purpose.
  2. On petition of an interested person or the minor if the minor has attained the age of fourteen years, the court may order the custodian to deliver or pay to the minor or expend for the minor's benefit so much of the custodial property as the court considers advisable for the use and benefit of the minor.
  3. A delivery, payment, or expenditure under this section is in addition to, not in substitution for, and does not affect any obligation of a person to support the minor.

Source: L. 84: Entire article R&RE, p. 389, § 1, effective July 1.

Editor's note: This section is similar to former § 11-50-105 as it existed prior to 1984.

ANNOTATION

Gifts not to reduce parent's legal obligation of support. Where a parent or parents voluntarily make gifts to children during the parents' marriage and the gifts are not in fulfillment of a court order to pay support, and where the parents are, at the time of dissolution of the marriage, able to meet their support obligations, the court may order that such gifts not be used to reduce the legal obligation of support. This rule assumed that the court had properly considered the financial resources of the children, as required by § 14-10-115 (1) , before ordering the amount of support to be paid by the parents. In re Wolfert, 42 Colo. App. 433, 598 P.2d 524 (1979) (decided under former § 11-50-105 of the Uniform Gifts to Minors Act).

Trial court did not abuse discretion in determining parties' ability to meet obligation for child support and postsecondary education independently of Uniform Gifts to Minors Act account funds where parties combined gross income exceeded upper limits of child support guidelines. In re Ludwig, 122 P.3d 1056 (Colo. App. 2005).

11-50-116. Custodian's expenses, compensation, and bond.

  1. A custodian is entitled to reimbursement from custodial property for reasonable expenses incurred in the performance of the custodian's duties.
  2. Except for one who is a transferor under section 11-50-105, a custodian has a noncumulative election during each calendar year to charge reasonable compensation for services performed during that year.
  3. Except as provided in section 11-50-119 (6), a custodian need not give a bond.

Source: L. 84: Entire article R&RE, p. 390, § 1, effective July 1.

Editor's note: This section is similar to former § 11-50-106 as it existed prior to 1984.

11-50-117. Exemption of third person from liability.

  1. A third person in good faith and without court order may act on the instructions of or otherwise deal with any person purporting to make a transfer or purporting to act in the capacity of a custodian and, in the absence of knowledge, is not responsible for determining:
    1. The validity of the purported custodian's designation;
    2. The propriety of, or the authority under this article for, any act of the purported custodian;
    3. The validity or propriety under this article of any instrument or instructions executed or given either by the person purporting to make a transfer or by the purported custodian; or
    4. The propriety of the application of any property of the minor delivered to the purported custodian.

Source: L. 84: Entire article R&RE, p. 390, § 1, effective July 1.

Editor's note: This section is similar to former § 11-50-107 as it existed prior to 1984.

11-50-118. Liability to third persons.

  1. A claim based on a contract entered into by a custodian acting in a custodial capacity, an obligation arising from the ownership or control of custodial property, or a tort committed during the custodianship may be asserted against the custodial property by proceeding against the custodian in the custodial capacity, whether or not the custodian or the minor is personally liable therefor.
  2. A custodian is not personally liable:
    1. On a contract properly entered into in the custodial capacity unless the custodian fails to reveal that capacity and to identify the custodianship in the contract; or
    2. For an obligation arising from control of custodial property or for a tort committed during the custodianship unless the custodian is personally at fault.
  3. A minor is not personally liable for an obligation arising from ownership of custodial property or for a tort committed during the custodianship unless the minor is personally at fault.

Source: L. 84: Entire article R&RE, p. 390, § 1, effective July 1.

11-50-119. Renunciation, resignation, death, or removal of custodian - designation of successor custodian.

  1. A person nominated under section 11-50-104 or designated under section 11-50-110 as custodian may decline to serve by delivering a valid disclaimer in the form provided in part 12 of article 11 of title 15, C.R.S., to the person who made the nomination or to the transferor or the transferor's legal representative. If the event giving rise to a transfer has not occurred and no substitute custodian able, willing, and eligible to serve was nominated under section 11-50-104, the person who made the nomination may nominate a substitute custodian under section 11-50-104; otherwise the transferor or the transferor's legal representative shall designate a substitute custodian at the time of the transfer, in either case from among the persons eligible to serve as custodian for that kind of property under section 11-50-110 (1). The custodian so designated has the rights of a successor custodian.
  2. A custodian at any time may designate a trust company or an adult other than a transferor under section 11-50-105 as successor custodian by executing and dating an instrument of designation before a subscribing witness other than the successor. If the instrument of designation does not contain or is not accompanied by the resignation of the custodian, the designation of the successor does not take effect until the custodian resigns, dies, becomes incapacitated, or is removed.
  3. A custodian may resign at any time by delivering written notice to the minor if the minor has attained the age of fourteen years and to the successor custodian and by delivering the custodial property to the successor custodian.
  4. If a custodian is ineligible, dies, or becomes incapacitated without having effectively designated a successor and the minor has attained the age of fourteen years, the minor may designate as successor custodian, in the manner prescribed in subsection (2) of this section, an adult member of the minor's family, a conservator of the minor, or a trust company. If the minor has not attained the age of fourteen years or fails to act within sixty days after the ineligibility, death, or incapacity, the conservator of the minor becomes successor custodian. If the minor has no conservator or the conservator declines to act, the transferor, the legal representative of the transferor or of the custodian, an adult member of the minor's family, or any other interested person may petition the court to designate a successor custodian.
  5. A custodian who declines to serve under subsection (1) of this section or resigns under subsection (3) of this section, or the legal representative of a deceased or incapacitated custodian, as soon as practicable, shall put the custodial property and records in the possession and control of the successor custodian. The successor custodian by action may enforce the obligation to deliver custodial property and records and becomes responsible for each item as received.
  6. A transferor, the legal representative of a transferor, an adult member of the minor's family, a guardian of the person of the minor, the conservator of the minor, or the minor if the minor has attained the age of fourteen years may petition the court to remove the custodian for cause and to designate a successor custodian other than a transferor under section 11-50-105 or to require the custodian to give appropriate bond.

Source: L. 84: Entire article R&RE, p. 391, § 1, effective July 1. L. 94: (1) amended, p. 1039, § 16, effective July 1, 1995. L. 2011: (1) amended, (SB 11-166), ch. 203, p. 868, § 3, effective August 10.

Editor's note: This section is similar to former § 11-50-108 as it existed prior to 1984.

11-50-120. Accounting by and determination of liability of custodian.

  1. A minor who has attained the age of fourteen years, the minor's guardian or legal representative, an adult member of the minor's family, a transferor, or a transferor's legal representative may petition the court:
    1. For an accounting by the custodian or the custodian's legal representative; or
    2. For a determination of responsibility, as between the custodial property and the custodian personally, for claims against the custodial property unless the responsibility has been adjudicated in an action under section 11-50-118 to which the minor or the minor's legal representative was a party.
  2. A successor custodian may petition the court for an accounting by the predecessor custodian.
  3. The court, in a proceeding under this article or in any other proceeding, may require or permit the custodian or the custodian's legal representative to account.
  4. If a custodian is removed under section 11-50-119 (6), the court shall require an accounting and order delivery of the custodial property and records to the successor custodian and the execution of all instruments required for transfer of the custodial property.

Source: L. 84: Entire article R&RE, p. 392, § 1, effective July 1.

Editor's note: This section is similar to former § 11-50-109 as it existed prior to 1984.

ANNOTATION

Subsection (1)(a), by authorizing the court to order a custodian to account for funds held on behalf of a minor, allows the court broad discretion in fashioning an appropriate remedy when the account has been improperly maintained. Buder v. Sartore, 774 P.2d 1383 (Colo. 1989).

11-50-121. Termination of custodianship.

  1. The custodian shall transfer in an appropriate manner the custodial property to the minor or to the minor's estate upon the earlier of:
    1. The minor's attainment of twenty-one years of age; or
    2. The minor's death.

Source: L. 84: Entire article R&RE, p. 392, § 1, effective July 1. L. 91: Entire section amended, p. 1442, § 1, effective July 1.

Editor's note: This section is similar to former § 11-50-105 as it existed prior to 1984.

11-50-122. Applicability.

  1. This article applies to a transfer within the scope of section 11-50-103 made on or after July 1, 1984, if:
    1. The transfer purports to have been made under the "Colorado Uniform Gifts to Minors Act" as it existed prior to said date; or
    2. The instrument by which the transfer purports to have been made uses in substance the designation: "as custodian under the uniform gifts to minors act" or "as custodian under the uniform transfers to minors act" of any other state, and the application of this article is necessary to validate the transfer.

Source: L. 84: Entire article R&RE, p. 392, § 1, effective July 1.

11-50-123. Effect on existing custodianships.

  1. Any transfer of custodial property as now defined in this article made before July 1, 1984, is validated notwithstanding that there was no specific authority in the "Colorado Uniform Gifts to Minors Act", as it existed prior to July 1, 1984, for the coverage of custodial property of that kind or for a transfer from that source at the time the transfer was made.
  2. This article applies to all transfers made before July 1, 1984, in a manner and form prescribed in the former "Colorado Uniform Gifts to Minors Act", except insofar as the application impairs constitutionally vested rights or extends the duration of custodianships in existence on July 1, 1984.
  3. Sections 11-50-102 and 11-50-121 with respect to the age of a minor for whom custodial property is held under this article do not apply to custodial property held in a custodianship that terminated because of the minor's attainment of the age of eighteen before July 1, 1984.

Source: L. 84: Entire article R&RE, p. 392, § 1, effective July 1.

11-50-124. Uniformity of application and construction.

This article shall be applied and construed to effectuate its general purpose to make uniform the law with respect to the subject of this article among states enacting it.

Source: L. 84: Entire article R&RE, p. 393, § 1, effective July 1.

Editor's note: This section is similar to former § 11-50-110 as it existed prior to 1984.

11-50-125. Severability.

If any provisions of this article or its application to any person or circumstance are held invalid, the invalidity does not affect other provisions or applications of this article which can be given effect without the invalid provision or application, and to this end the provisions of this article are severable.

Source: L. 84: Entire article R&RE, p. 393, § 1, effective July 1.

11-50-126. Prior transfers not affected.

To the extent that this article, pursuant to section 11-50-123 (2), does not apply to transfers made in a manner prescribed in the "Colorado Uniform Gifts to Minors Act", as it existed prior to July 1, 1984, or to the powers, duties, and immunities conferred by transfers in that manner upon custodians and persons dealing with custodians, the repeal and reenactment of the "Colorado Uniform Gifts to Minors Act" does not affect those transfers or those powers, duties, and immunities.

Source: L. 84: Entire article R&RE, p. 393, § 1, effective July 1.

Editor's note: This section is similar to former § 11-50-111 as it existed prior to 1984.

Securities

ARTICLE 51 SECURITIES

Editor's note: This article was numbered as article 1 of chapter 125, C.R.S. 1963. The substantive provisions of this article were repealed and reenacted in 1990, resulting in the addition, relocation, and elimination of sections as well as subject matter. For amendments to this article prior to 1990, consult the Colorado statutory research explanatory note and the table itemizing the replacement volumes and supplements to the original volume of C.R.S. 1973 beginning on page vii in the front of this volume. Former C.R.S. section numbers are shown in editor's notes following those sections that were relocated.

Cross references: For provisions on investment securities, see article 8 of title 4.

Law reviews: For article, "Recent Developments Affecting Securities Litigation in Colorado", see 13 Colo. Law. 1161 (1984); for article, "Securities", which discusses Tenth Circuit decisions dealing with securities law, see 61 Den. L.J. 369 (1984), 62 Den. U.L. Rev. 295 (1985), and 63 Den. U. L. Rev. 435 (1986); for article, "Securities Regulation in the Burger Court", see 56 U. Colo. L. Rev. 193 (1985); for article, "Securities and Commodity Futures Regulation", which discusses Tenth Circuit decisions dealing with securities law, see 64 Den. U.L. Rev. 329 (1987); for article, "Securities Fraud and the Governmental Issuer", see 16 Colo. Law. 1392 (1987); for article, "Arbitration with a View to the Future", see 17 Colo. Law. 2175 (1988); for article "Resort Condominiums and the Federal Securities Laws", see 18 Colo. Law. 229 (1989); for a discussion of Tenth Circuit decisions dealing with securities law, see 66 Den. U.L. Rev. 797 (1989); for article, "The New Colorado Securities Act", see 19 Colo. Law. 1767 (1990); for article, "Securities Litigation in the 1990s", see 19 Colo. Law. 2045 (1990); for article, "Colorado Securities Act of 1990: The Securities Commissioner's View", see 19 Colo. Law. 2041 (1990); for a discussion of Tenth Circuit decisions dealing with securities law, see 67 Den. U. L. Rev. 767 (1990); for article, "Colorado's Regulation of Investment Advisers", see 28 Colo. Law. 39 (April 1999); for article, "Contribution Rights in Colorado Securities Fraud Cases", see 29 Colo. Law. 51 (June 2000); for article, "Colorado Securities Act Twenty Years Later", 40 Colo. Law. 31 (Dec. 2011).

Section

PART 1 SHORT TITLE, PURPOSE, AND SCOPE

11-51-101. Short title and purpose.

  1. This article shall be known and may be cited as the "Colorado Securities Act".
  2. The purposes of this article are to protect investors and maintain public confidence in securities markets while avoiding unreasonable burdens on participants in capital markets. This article is remedial in nature and is to be broadly construed to effectuate its purposes.
  3. The provisions of this article and rules made under this article shall be coordinated with the federal acts and statutes to which references are made in this article and rules and regulations promulgated under those federal acts and statutes, to the extent coordination is consistent with both the purposes and the provisions of this article.

Source: L. 90: Entire article R&RE, p. 700, § 1, effective July 1.

Editor's note: This section is similar to former § 11-51-101 as it existed prior to 1990.

ANNOTATION

Law reviews. For article, "State and Federal Securities Surveillance: Some Attendant Problems", see 27 Rocky Mt. L. Rev. 496 (1955). For article, "The Colorado Securities Law", see 35 Dicta 271 (1958). For article, "One Year Review of Corporations, Partnership, and Agency", see 36 Dicta 27 (1959). For article, "The New Colorado Securities Act -- A Quest for Uniformity", see 38 Dicta 213 (1961). For article, "Criminal Prosecutions under the Colorado Securities Act", see 47 U. Colo. L. Rev. 233 (1976). For article, "Investment Contracts Under the Colorado and Uniform Securities Acts", see 49 U. Colo. L. Rev. 391 (1978). For article, "The Securities Act of 1981 -- Two Years Later", see 12 Colo. Law. 1236 (1983). For article, "After Federal Securities Reform: Blue Sky Ahead for Colorado Class Actions - Part I," see 25 Colo. Law. 37 , (July 1996). For article, "Auditor Liability under Colorado Blue Sky Laws", see 29 Colo. Law. 63 (Oct. 2000).

Annotator's note. The following annotations include cases decided under former provisions similar to this section.

Purpose. The broad purpose of securities acts is to prevent the exploitation of investors through full and fair disclosure relative to the issuance of securities. Raymond Lee Org., Inc. v. Sec. Comm'n, 36 Colo. App. 417, 543 P.2d 75 (1975), rev'd on other grounds, 192 Colo. 112 , 556 P.2d 1209 (1976).

Securities acts are remedial in nature and should be broadly construed to effectuate their purpose. Raymond Lee Org., Inc. v. Sec. Comm'n, 36 Colo. App. 417, 543 P.2d 75 (1975), rev'd on other grounds, 192 Colo. 112 , 556 P.2d 1209 (1976).

Civil actions arising under this article are strictly analogous to an action under § 12(2) of the securities exchange act of 1934 -- but not to either a § 10(b) action alleging violation of rule 10b-5(1) and (3), nor to a § 10(b) action alleging violation of rule 10b-5(2) when proof of scienter and reliance is required. Trussell v. United Underwriters, Ltd., 228 F. Supp. 757 (D. Colo. 1964) (decided under repealed § 125-1-1, CRS 53, which was similar to this section).

Parallels federal acts. The Colorado securities act parallels the federal securities act of 1933 and the securities and exchange act of 1934. Sauer v. Hays, 36 Colo. App. 190, 539 P.2d 1343 (1975).

And federal law is persuasive. While the Colorado supreme court is not bound by federal law in the interpretation of the Colorado securities act, insofar as the provisions and purposes of this statute parallel those of the federal enactments, such federal authorities are highly persuasive. Lowery v. Ford Hill Inv. Co., 192 Colo. 125 , 556 P.2d 1201 (1976).

The hallmark of state and federal securities regulation has always been close attention to the facts of each case and a substantive appraisal of the commercial realities of the offering. Lowery v. Ford Hill Inv. Co., 192 Colo. 125 , 556 P.2d 1201 (1976).

Applied in Dietrich Corp. v. King Res. Co., 583 F.2d 1143 (10th Cir. 1978).

11-51-102. Scope of article.

  1. Except as provided in subsection (7) of this section, sections 11-51-301, 11-51-401 (1) and (2), 11-51-501, and 11-51-503 apply to persons who sell or offer to sell when an offer to sell is made in this state or when an offer to purchase is made and accepted in this state.
  2. Sections 11-51-401 (1) and (2), 11-51-501, and 11-51-503 apply to persons who purchase or offer to purchase when an offer to purchase is made in this state or when an offer to sell is made and accepted in this state.
  3. For the purpose of this section, an offer to sell or to purchase is made in this state, whether or not either party is then present in this state, when the offer originates from this state or is directed by the offeror to this state and is received at the place to which it is directed or, in the case of a mailed offer, at any post office in this state.
  4. For the purpose of this section, an offer to purchase or to sell is accepted in this state when acceptance is communicated to the offeror in this state and has not previously been communicated to the offeror, orally or in writing, outside this state; and acceptance is communicated to the offeror in this state, whether or not either party is then present in this state, when the offeree directs it to the offeror in this state reasonably believing the offeror is to be in this state and it is received at the place to which it is directed or, in the case of a mailed acceptance, at any post office in this state.
    1. For the purpose of subsections (1) to (4) of this section, an offer to sell or to purchase made in a newspaper or other publication of general, regular, and paid circulation is not made in this state if the publication:
      1. Is not published in this state; or
      2. Is published in this state, but has had more than two-thirds of its circulation outside this state during the past twelve months.
    2. For the purpose of this subsection (5), if a publication is published in editions, each edition is a separate publication except for material common to all editions.
    1. For the purpose of subsections (1) to (4) of this section, an offer to sell or to purchase made in a radio or television broadcast or other publicly distributed electronic communication received in this state which originates outside this state is not made in this state. For the purpose of subsection (8) of this section, investment advisory services limited to holding oneself out as an investment adviser or financial planner or similar type of adviser or consultant, but not the transaction of any further business, in a radio or television broadcast or other publicly distributed electronic communication received in this state in a manner originating outside this state shall not be construed as investment advisory services provided in this state.
    2. For the purpose of this subsection (6), a radio or television broadcast or other publicly distributed electronic communication originates in this state if either the broadcast studio or the originating source of transmission is located in this state, unless:
      1. The broadcast or communication is syndicated and distributed from outside this state for redistribution to the general public in this state;
      2. The broadcast or communication is supplied by a radio, television, or other electronic network with the electronic signal originating from outside this state for redistribution to the general public in this state;
      3. The broadcast or communication is an electronic signal that originates outside this state and is captured for redistribution to the general public in this state by a community antenna or cable, radio, cable television, or other electronic system; or
      4. The broadcast or communication consists of an electronic signal that originates in this state, but which is not intended for redistribution to the general public in this state.
  5. Section 11-51-301 and section 11-51-604, to the extent such section relates to section 11-51-301, do not apply to any person with respect to a sale or offer to sell where the sale or offer to sell is directed to another person not located in this state, does not violate a securities registration requirement or its equivalent in the laws of the jurisdiction in which the other person is located, and is not made for the purpose of evading the provisions of this article.
  6. For purposes of section 11-51-401 (1.5), (1.6), and (2.5), "transacting business in this state" includes engaging in any of the activities enumerated in section 11-51-201 (9.5)(a) or holding oneself out as an investment adviser, financial planner, or similar type of adviser or consultant if such activities are engaged in, or the holding out occurs, within the state regardless of whether a person to whom services are provided or to whom such holding out is made is physically present within the state. "Transacting business in this state" also includes engaging in the services or so holding oneself out whenever a person to whom such services are provided or to whom such holding out is made is both a resident of, and physically present within, the state.
  7. Section 11-51-501 (2) and (3) apply if:
    1. Any of the proscribed conduct occurs within this state regardless of whether a client or prospective client is present within the state when such conduct occurs; or
    2. A client or prospective client is physically present within the state when any of the proscribed conduct occurs in this state.

Source: L. 90: Entire article R&RE, p. 700, § 1, effective July 1. L. 98: (1), (2), and (6)(a) amended and (8) and (9) added, p. 546, § 1, effective April 30.

Editor's note: This section is similar to former § 11-51-127 as it existed prior to 1990.

ANNOTATION

Annotator's note. Since § 11-51-102 is similar to § 11-51-127 as it existed prior to the 1990 repeal and reenactment of this article, relevant cases construing that provision have been included in the annotations to this section.

Jurisdiction. Whether the contracts are executed in Colorado or out of state is irrelevant since the Colorado securities act expressly covers the solicitation of an offer to buy in this state, and actual execution of a contract within the state is not essential to the exercise of jurisdiction over appellant. Raymond Lee Org., Inc. v. Sec. Comm'n, 36 Colo. App. 417, 543 P.2d 75 (1975), rev'd on other grounds, 192 Colo. 112 , 556 P.2d 1209 (1976).

No requirement that entire transaction occur in Colorado. The disjunctive "or" used in subsection (1) reinforces the view that, whenever either the offer or the sale occurs in this state, the Colorado Securities Act applies. Rosenthal v. Dean Witter Reynolds, Inc., 883 P.2d 522 (Colo. App. 1994), aff'd, 908 P.2d 1095 ( Colo. 1995 ).

This section does not void forum selection clauses in contracts. While the act applies when securities are bought in Colorado, this does not imply that the parties cannot agree to litigate disputes in another forum. Cagle v. Mathers Family Trust, 2013 CO 7, 295 P.3d 460.

Applied in Simms Inv. Co. v. E.F. Hutton & Co. Inc., 699 F. Supp. 543 (M.D. N. C. 1988).

PART 2 DEFINITIONS AND REFERENCES TO FEDERAL STATUTES AND RULES

11-51-201. Definitions.

As used in this article, unless the context otherwise requires:

  1. "Bank" means a banking institution organized under the laws of the United States, a member bank of the federal reserve system, any other banking institution or trust company, whether incorporated or not, doing business under the laws of any state or of the United States, a substantial portion of the business of which consists of receiving deposits or exercising fiduciary powers similar to those permitted to national banks under the authority of the comptroller of the currency, which is supervised and examined by a state or federal authority having supervision over banks, and which is not operated for the purpose of evading the provisions of the federal "Securities Act of 1933", and a receiver, conservator, or other liquidating agent of any institution or firm described in this subsection (1).
  2. "Broker-dealer" means a person engaged in the business of effecting purchases or sales of securities for the accounts of others or in the business of purchasing and selling securities for the person's own account. The term does not include the following:
    1. A sales representative;
    2. An issuer with respect to purchasing and selling the issuer's own securities;
    3. A bank; or
    4. Any other person or class of persons the securities commissioner designates by rule or order.
  3. "Central registration depository" means the computer registration system known as the central registration depository, which is maintained by the financial industry regulatory authority and the states that participate in that system, or any successor system.
  4. "Commodity futures trading commission" means the commission established by the federal "Commodity Exchange Act".
  5. "Depository institution" means:
    1. A person that is organized or chartered, or is doing business or holds an authorization certificate, under the laws of a state or of the United States which authorize the person to receive deposits, including deposits in savings, share, certificate, or other deposit accounts, and that is supervised and examined for the protection of depositors by an official or agency of a state or the United States; and
    2. A trust company or other institution that is authorized by federal or state law to exercise fiduciary powers of the type a national bank is permitted to exercise under the authority of the comptroller of the currency and is supervised and examined by an official or agency of a state or the United States. The term does not include an insurance company or other organization primarily engaged in the insurance business.

    1. (5.5) (a) "Federal covered adviser" means a person who is registered or required to be registered under section 203 of the federal "Investment Advisers Act of 1940".
    2. "Federal covered adviser" does not include either a person excepted from the definition of "investment adviser" or exempt from registration under the federal "Investment Advisers Act of 1940" solely by reason of the fact such person advises a local government investment pool trust fund under article 75 of title 24, C.R.S.
  6. "Financial or institutional investor" means any of the following, whether acting for itself or others in a fiduciary capacity:
    1. A depository institution;
    2. An insurance company;
    3. A separate account of an insurance company;
    4. An investment company registered under the federal "Investment Company Act of 1940";
    5. A business development company as defined in the federal "Investment Company Act of 1940";
    6. Any private business development company as defined in the federal "Investment Advisers Act of 1940";
    7. An employee pension, profit-sharing, or benefit plan if the plan has total assets in excess of five million dollars or its investment decisions are made by a named fiduciary, as defined in the federal "Employee Retirement Income Security Act of 1974", that is a broker-dealer registered under the federal "Securities Exchange Act of 1934", an investment adviser registered or exempt from registration under the federal "Investment Advisers Act of 1940", a depository institution, or an insurance company;
    8. An entity, but not an individual, a substantial part of whose business activities consist of investing, purchasing, selling, or trading in securities of more than one issuer and not of its own issue and that has total assets in excess of five million dollars as of the end of its latest fiscal year;
    9. A small business investment company licensed by the federal small business administration under the federal "Small Business Investment Act of 1958"; and
    10. Any other institutional buyer.
  7. "Fraud", "deceit", and "defraud" are not limited to common-law deceit.
  8. "Fraudulent conduct" means, for the purposes of section 11-51-410, conduct within this state which constitutes a willful violation of section 11-51-501 or conduct outside this state which would constitute a willful violation of section 11-51-501 if it had occurred within this state.
  9. "Guaranteed" means guaranteed as to payment of principal, interest, or dividends.

      1. (9.5) (a) (I) "Investment adviser" means any person who, for compensation, engages in the business of advising others, either directly or through publications or writings, as to the value of securities or as to the advisability of investing in, purchasing, or selling securities, or who, for compensation and as part of a regular business, issues or promulgates analyses or reports concerning securities.
      2. "Investment adviser" includes financial planners or other persons who, as an integral component of other financially related services, provide investment advisory services to others for compensation and as a part of a business or who hold themselves out as providing investment advisory services to others for compensation.
    1. "Investment adviser" does not include:
      1. A federal covered adviser;
      2. A publisher of a bona fide newspaper, magazine, or business or financial publication with a regular paid circulation;
      3. A publisher of a securities advisory newsletter with a regular and paid circulation who does not provide advice to subscribers on their specific investment situations;
      4. An author of material included in a newspaper, magazine, publication, or newsletter who does not otherwise come within the definition of an investment adviser or investment adviser representative;
      5. An investment adviser representative;
      6. A licensed broker-dealer or sales representative for a licensed broker-dealer whose performance of investment advisory services is solely incidental to the conduct of the person's business as a broker-dealer and who receives no special compensation for such services;
      7. A depository institution or a person employed by or directly associated with a depository institution;
      8. Any lawyer, accountant, engineer, or teacher whose performance of such services is solely incidental to the practice of that person's profession;
      9. A person who provides investment advisory services solely while acting as an investment banker or business broker on behalf of one or more parties to, and in connection with, a transaction or proposed transaction for the transfer of a controlling interest in a business enterprise;
      10. An official, employee, or representative of the United States, an individual state, a political subdivision of an individual state, or an agency or a corporate or other instrumentality of the United States or an individual state, while acting in such person's official capacity on behalf of such entity;
      11. A licensed real estate broker or salesperson whose advice to clients relates only to the investment or acquisition of real property or an interest in real property; or
      12. Any other person or class of persons excluded by rule or order of the securities commissioner.

    1. (9.6) (a) "Investment adviser representative" with respect to an investment adviser means an individual who has a place of business in this state; who is a partner, officer, or director of an investment adviser; who occupies a status similar to or performs functions similar to those of a partner, officer, or director for an investment adviser; or who is employed or otherwise associated with an investment adviser who:
      1. Makes recommendations or otherwise renders advice to clients regarding securities;
      2. Manages securities accounts or portfolios for clients;
      3. Determines which recommendation or advice regarding securities should be given to clients; or
      4. Supervises employees of, or persons otherwise associated with, an investment adviser or a federal covered adviser who perform any of the duties specified in this paragraph (a).
    2. "Investment adviser representative" for a federal covered adviser means any individual with a place of business in this state who is an "investment adviser representative" as defined by the securities and exchange commission in rule 203A-3 promulgated under the federal "Investment Advisers Act of 1940".
    3. The term "investment adviser representative" does not include:
      1. A licensed sales representative for a licensed broker-dealer whose performance of investment advisory services is solely incidental to the conduct of business as a sales representative and who receives no special consideration in connection with providing such services; or
      2. Any other individual or class of individuals excluded by rule or order of the securities commissioner.

    (9.7) "Investment advisory services" means those activities performed by a person in connection with such person's engaging in any of the activities described in paragraph (a) of subsection (9.5) of this section, including such activities by a federal covered adviser or an investment adviser representative for a federal covered adviser.

  10. "Issuer" means any person who issues or proposes to issue any security; except that, with respect to certificates of deposit, voting-trust certificates, or collateral-trust certificates or with respect to certificates of interest or shares in an unincorporated investment trust not having a board of directors or persons performing similar functions or of the fixed, restricted management, or unit type, the term "issuer" means the person performing the acts and assuming the duties of depositor or manager pursuant to the provisions of the trust or other agreement or instrument under which such securities are issued; except that, in the case of an unincorporated association which provides by its articles for limited liability of any or all of its members or in the case of a trust, committee, or other legal entity, the trustees or members thereof shall not be individually liable as issuers of any security issued by the association, trust, committee, or other legal entity; except that, with respect to equipment-trust certificates or like securities, the term "issuer" means the person by whom the equipment or property is or is to be used; and except that, with respect to fractional undivided interests in oil, gas, or other mineral rights, the term "issuer" means the owner of any such right or of any interest in such right (whether whole or fractional) who creates fractional interests therein for the purpose of offering them for sale.
  11. "Nonissuer" means not directly or indirectly for the benefit of the issuer.

    (11.5) "Online intermediary" means a person:

    1. Acting pursuant to section 11-51-308.5 as an intermediary in a transaction involving the offer through a website of securities for the account of an issuer; and
    2. Who does not:
      1. Offer investment advice or recommendations;
      2. Solicit purchases, sales, or offers to buy the securities offered or displayed on its website;
      3. Compensate employees, agents, or other persons for such solicitation or based on the sale of securities displayed or referenced on its website;
      4. Hold, manage, possess, or otherwise handle purchaser funds or securities;
      5. Act as an exchange or listing or quotation service for the offer or sale of securities by third parties; or
      6. Engage in such other activities as the securities commissioner, by rule, determines is inappropriate.
  12. "Person" means an individual, a corporation, a partnership, an association, an estate, a joint-stock company, a trust where the interests of the beneficiaries are evidenced by a security, an unincorporated organization, a government, a governmental subdivision or agency, or any other legal entity.

    (12.5) "Place of business" for investment adviser representatives shall have the same meaning as defined by the securities and exchange commission in rule 203A-3 promulgated under the federal "Investment Advisers Act of 1940".

    1. "Sale" or "sell" includes every contract of sale of, contract to sell, or disposition of a security or interest in a security for value. "Offer to sell" includes every attempt or offer to dispose of, or solicitation of an offer to buy, a security or interest in a security for value.
    2. "Purchase" or "buy" includes every contract of purchase of, contract to buy, or acquisition of a security or interest in a security for value. "Offer to purchase" includes every attempt or offer to acquire, or solicitation of an offer to sell, a security or interest in a security for value.
    3. "Offer" means an offer to sell or an offer to purchase.
    4. Any security given or delivered with, or as a bonus on account of, any purchase of securities or any other thing is considered to constitute part of the subject of the purchase and to have been offered, sold, and purchased for value.
    5. A purported gift of assessable stock is considered to involve an offer, sale, and purchase.
    6. Every sale or offer of a warrant or right to purchase or subscribe to another security of the same or another issuer, as well as every sale or offer of a security which gives the holder a present or future right or privilege to convert into another security of the same or another issuer, is considered to include an offer of the other security.
    7. An "offer", "offer to sell", "offer to purchase", "sale", and "purchase" shall be deemed to be involved so far as the security holders of a corporation or other person are concerned where, pursuant to statutory provisions of the jurisdiction under which such corporation or other person is organized, or pursuant to provisions contained in its articles of incorporation or similar controlling instruments, or otherwise, there is submitted for the vote or consent of such security holders a plan or agreement for the following:
      1. A reclassification of securities of such corporation or other person, other than a stock split, reverse stock split, or change in par value, which involves the substitution of a security for another security;
      2. A statutory merger or consolidation or similar plan of acquisition in which securities of such corporation or other person held by such security holders will become or be exchanged for securities of any other person, except where the sole purpose of the transaction is to change an issuer's domicile; or
      3. A transfer of assets of such corporation or other person to another person, in consideration of the issuance of securities of such other person or any of its affiliates, if:
        1. Such plan or agreement provides for dissolution of the corporation or other person whose security holders are voting or consenting;
        2. Such plan or agreement provides for a pro rata or similar distribution of such securities to the security holders voting or consenting;
        3. The board of directors or similar representative of such corporation or other person adopts resolutions relative to sub-subparagraph (A) or (B) of this subparagraph (III) within one year after taking of such vote or consent; or
        4. The transfer of assets is a part of a preexisting plan for distribution of such securities, notwithstanding the provisions of sub-subparagraph (A), (B), or (C) of this subparagraph (III).
    8. The terms defined in this subsection (13) do not include any bona fide pledge or loan or any dividend payable by an issuer only in its own securities if nothing of value is given by stockholders for the dividend.
  13. "Sales representative" means an individual, other than a broker-dealer, either authorized to act and acting for a broker-dealer in effecting or attempting to effect purchases or sales of securities or authorized to act and acting for an issuer in effecting or attempting to effect purchases or sales of the issuer's own securities. An individual so acting for an issuer is not a sales representative if the individual primarily performs, or is intended primarily to perform upon completion of an offering of the issuer's own securities, substantial duties for or on behalf of the issuer otherwise than in connection with transactions in the issuer's own securities and the individual's compensation is not based, in whole or in part, upon the amount of purchases or sales of the issuer's own securities effected for the issuer. A partner, officer, or director of a broker-dealer or issuer, or an individual occupying a similar status or performing similar functions, is a sales representative only if the individual otherwise comes within the definition.
  14. "Securities and exchange commission" means the commission established by the federal "Securities Exchange Act of 1934".
  15. "Securities commissioner" means the commissioner of securities created by section 11-51-701.
  16. "Security" means any note; stock; treasury stock; bond; debenture; evidence of indebtedness; certificate of interest or participation in any profit-sharing agreement; collateral-trust certificate; preorganization certificate of subscription; transferable share; investment contract; viatical settlement investment; voting-trust certificate; certificate of deposit for a security; certificate of interest or participation in an oil, gas, or mining title or lease or in payments out of production under such a title or lease; or, in general, any interest or instrument commonly known as a "security" or any certificate of interest or participation in, temporary or interim certificate for, guarantee of, or warrant or right to subscribe to or purchase any of the foregoing. "Security" does not include any insurance or endowment policy or annuity contract under which an insurance company promises to pay a sum of money either in a lump sum or periodically for life or some other specified period. For purposes of this article, an "investment contract" need not involve more than one investor nor be limited to those circumstances wherein there are multiple investors who are joint participants in the same enterprise.
  17. "Self-regulatory organization" means a national securities exchange registered under section 6 of the federal "Securities Exchange Act of 1934", a national securities association of broker-dealers registered under section 15A of the federal "Securities Exchange Act of 1934", a clearing agency registered under section 17A of the federal "Securities Exchange Act of 1934", the municipal securities rule-making board established under section 15B of the federal "Securities Exchange Act of 1934", or a futures association registered under section 21 of the federal "Commodity Exchange Act".
  18. "State" means any state, territory, or possession of the United States, the District of Columbia, or Puerto Rico.
  19. "Viatical settlement investment" means the contractual right to receive any portion of the death benefit or ownership of a life insurance policy or certificate, in exchange for consideration that is less than the expected death benefit of the life insurance policy or certificate. "Viatical settlement investment" does not include:
    1. Any transaction between a viator and a viatical settlement provider as defined by section 10-7-602, C.R.S.;
    2. Any transfer of ownership or beneficial interest in a life insurance policy from a viatical settlement provider to another viatical settlement provider as defined by section 10-7-602, C.R.S., or to any legal entity formed solely for the purpose of holding ownership or beneficial interest in a life insurance policy or policies;
    3. The bona fide assignment of a life insurance policy to a bank, savings bank, savings and loan association, savings association, credit union, or other licensed lending institution as collateral for a loan; or
    4. The exercise of accelerated benefits pursuant to the terms of a life insurance policy issued in accordance with title 10, C.R.S.

Source: L. 90: Entire article R&RE, p. 702, § 1, effective July 1. L. 98: (5.5), (9.5), (9.6), (9.7), and (12.5) added, p. 547, § 2, effective April 30. L. 2005: (17) amended and (20) added, p. 1324, § 2, effective January 1, 2006. L. 2015: (3) and (20)(c) amended, (SB 15-104), ch. 177, p. 575, § 2, effective May 11; (11.5) added, (HB 15-1246), ch. 98, p. 286, § 2, effective August 5.

Editor's note: This section is similar to former § 11-51-102 as it existed prior to 1990.

Cross references: For the "Securities Act of 1933", see Pub.L. 73-22, codified at 15 U.S.C. sec. 77a et seq.; for the "Commodity Exchange Act", see Pub.L. 67-331, codified at 7 U.S.C. sec. 1 et seq.; for the "Investment Advisers Act of 1940", see Pub.L. 76-768, 54 Stat. 847 (1940); for the "Investment Company Act of 1940", see Pub.L. 76-768, 54 Stat. 789 (1940); for the "Employee Retirement Income Security Act of 1974", see Pub.L. 93-406, codified at 29 U.S.C. sec. 1001 et seq.; for the "Securities Exchange Act of 1934", see Pub.L. 73-291, codified at 15 U.S.C. sec. 78a et seq.; for the "Small Business Investment Act of 1958", see Pub.L. 85-699, codified at 15 U.S.C. sec. 661 et seq.

ANNOTATION

Law reviews. For note, "Corporations -- Investment Clubs", see 31 Rocky Mt. L. Rev. 358 (1959). For article, "Impact of the Uniform Commercial Code on Colorado Law", see 42 Den. L. Ctr. J. 67 (1965). For article, "Criminal Prosecutions under the Colorado Securities Act", see 47 U. Colo. L. Rev. 233 (1976). For article, "Securities Registration Considerations in Condominium Developments", see 11 Colo. Law. 2795 (1982). For article, "A Practitioner's Guide for Entrance to NASD Membership", see 14 Colo. Law. 1967 (1985). For article, "Misstatements of the Rule Against Perpetuities by Experts", see 15 Colo. Law. 210 (1986). For article, "The Distinction Between a Financial Planner, Investment Advisor and Broker/Dealer", see 15 Colo. Law. 211 (1986).

Annotator's note. Since § 11-51-201 is similar to § 11-51-102 as it existed prior to the 1990 repeal and reenactment of this article, relevant cases construing that provision have been included in the annotations to this section.

The hallmark of state and federal securities regulation has always been close attention to the facts of each case and a substantive appraisal of the commercial realities of the offering. Lowery v. Ford Hill Inv. Co., 192 Colo. 125 , 556 P.2d 1201 (1976).

Legislative intent. Such expansive language in the Colorado statute defining "security" indicates a legislative intent to provide the flexibility needed to regulate the various schemes devised by those who seek the use of the money of others with the lure of profits. Lowery v. Ford Hill Inv. Co., 192 Colo. 125 , 556 P.2d 1201 (1976); Griffin v. Jackson, 759 P.2d 839 (Colo. App. 1988).

Purpose. The broad purpose of securities acts is to prevent the exploitation of investors through full and fair disclosure relative to the issuance of securities. Raymond Lee Org., Inc. v. Sec. Comm'n, 36 Colo. App. 417, 543 P.2d 75 (1975), rev'd on other grounds, 192 Colo. 112 , 556 P.2d 1209 (1976).

Securities acts are remedial in nature and should be broadly construed to effectuate their purpose. Raymond Lee Org., Inc. v. Sec. Comm'n, 36 Colo. App. 417, 543 P.2d 75 (1975), rev'd on other grounds, 192 Colo. 112 , 556 P.2d 1209 (1976); Griffin v. Jackson, 759 P.2d 839 (Colo. App. 1988).

Parallels federal acts. The Colorado securities act parallels the federal securities act of 1933 and the securities and exchange act of 1934. Sauer v. Hays, 36 Colo. App. 190, 539 P.2d 1343 (1975).

The definition of "security" in the federal securities act of 1933 (15 U.S.C. § 77b(1)) is parallel to Colorado's definition; "investment contract" is included as a "security" under both statutes; and, therefore, federal cases on the subject can be persuasive. Raymond Lee Org., Inc. v. Div. of Sec., 192 Colo. 112 , 556 P.2d 1209 (1976).

The definition of a security embodies a flexible rather than a static principle. Raymond Lee Org., Inc. v. Sec. Comm'n, 36 Colo. App. 417, 543 P.2d 75 (1975), rev'd on other grounds, 192 Colo. 112 , 556 P.2d 1209 (1976).

Investment contract defined. An investment contract for purposes of the securities act means a contract, transaction, or scheme whereby a person invests his money in a common enterprise and is led to expect profits solely from the efforts of the promoter or a third party. Raymond Lee Org., Inc. v. Div. of Sec., 192 Colo. 112 , 556 P.2d 1209 (1976); Griffin v. Jackson, 759 P.2d 839 (Colo. App. 1988).

The transaction's substance and economic realities control, not what a party labels the transaction. Jenkins v. Jacobs, 748 P.2d 1318 (Colo. App. 1987).

Question of law. Whether an interest or instrument is an investment contract is a question of law to be determined by the court. Straub v. Mtn. Trails Resort, Inc., 770 P.2d 1321 (Colo. App. 1988).

Determining whether a transaction is a security. Whether a transaction is a security is a question of fact to be determined by the jury. People v. Hoover, 165 P.3d 784 (Colo. App. 2006).

It is the jury's responsibility to apply the facts to the definition of "security" supplied by the court to decide whether a particular transaction is a security. People v. Pahl, 169 P.3d 169 (Colo. App. 2006); People v. Hoover, 165 P.3d 784 (Colo. App. 2006).

Whether a particular transaction involves a security depends not on the name or the form of the instrument, but on the substantive economic realities underlying the transaction. Joseph v. Viatica Mgmt., LLC, 55 P.3d 264 (Colo. App. 2002); People v. Hoover, 165 P.3d 784 (Colo. App. 2006).

The three-part test to determine if a transaction is an investment contract, included within the definition of "security", establishes whether such transaction is: (1) An investment of money; (2) in a common enterprise; (3) with the expectation of profit from the efforts of others. People v. Hoover, 165 P.3d 784 (Colo. App. 2006); Joseph v. Mieka Corp., 2012 COA 84 , 282 P.3d 509; Rome v. HEI Res., Inc., 2014 COA 160 , 411 P.3d 851.

Determining whether a general partnership or joint venture interest is a security. Colorado courts have adopted the three-part test articulated in Williamson v. Tucker, 645 F.2d 404 (5th Cir. 1981), to determine whether a general partnership or joint venture interest is a security. Rome v. HEI Res., Inc., 2014 COA 160 , 411 P.3d 851.

The first Williamson factor looks at whether the partnership or joint venture agreement leaves so little power in the hands of the partner or venturer that it renders the relationship between the parties tantamount to a limited partnership. Rome v. HEI Res., Inc., 2014 COA 160 , 411 P.3d 851.

The second factor looks at the knowledge and experience of the partners or venturers. The proper measure of the venturers' experience is their collective experience in the business of the venture. Rome v. HEI Res., Inc., 2014 COA 160 , 411 P.3d 851.

The third factor looks at whether the managing partner or venturer has a unique entrepreneurial or managerial ability that would preclude the other partners or venturers from replacing it. Rome v. HEI Res., Inc., 2014 COA 160 , 411 P.3d 851.

The economic realities test determines when general partnership interests constitute securities. The question whether a particular transaction involves a security depends not on the name or form of the instrument, but on the substantive economic realities underlying the transaction. Rome v. HEI Res., Inc., 2014 COA 160 , 411 P.3d 851.

Colorado courts should not apply the strong presumption that a joint venture or general partnership interest is not a security. Rome v. HEI Res., Inc., 2014 COA 160 , 411 P.3d 851.

Joint venture agreement was an illusory general partnership, and investments in it were investment contracts. Joint venture lacked the hallmarks of traditional general partnership in that: Investors lacked the right or ability to vote on the admission or exclusion of new investors; investors could not bind the joint venture; investors had not taken any votes or action concerning management decisions; investors lacked sufficient voting power to remove the operator; respondents did not inquire into or assess investors' specific knowledge or sophistication concerning the joint venture activity; and respondents solicited a large number of investors with whom they had no prior relationship. Joseph v. Mieka Corp., 2012 COA 84 , 282 P.3d 509.

Investment notes issued by loan association were securities where each noteholder entrusted money with expectation of periodic interest in addition to repayment of principal, interest rates were raised periodically, investors' return was dependent upon continuing operation and success of business, and investor's expectation of profit was derived solely from managerial efforts of others. People v. Milne, 690 P.2d 829 (Colo. 1984).

Commodity accounts may be investment contracts and thus securities. In order to qualify as an investment contract, a commodity account must involve an investment of money in a common enterprise with profits to come solely from the efforts of others. Clayton Brokerage Co. v. Stansfield, 582 F. Supp. 837 (D. Colo. 1984).

Pyramid sales scheme as a security. A pyramid sales scheme is no less a security because of the sale of distributorships where what, in essence, was being offered was an opportunity to contribute money and to share in the profits of an enterprise managed and owned by Master Industries. Sauer v. Hays, 36 Colo. App. 190, 539 P.2d 1343 (1975).

A pyramid promotional scheme involved an "investment contract", a "common enterprise" whereby the "fortunes of the investors" were "inextricably tied" and dependent upon the efforts and success of the corporation in obtaining and recruiting new prospects for its seminars and in consummating sales, and constituted the sale of securities in violation of Colorado's securities act. Sauer v. Hays, 36 Colo. App. 190, 539 P.2d 1343 (1975).

Promoters of pyramid promotional plans must make full, complete, and fair disclosure, through the registration statement, of the perils involved before their prospects invest their money. Sauer v. Hays, 36 Colo. App. 190, 539 P.2d 1343 (1975).

Agreements to promote inventions. Agreements whereby an inventor paid a fee to petitioner and assigned a percentage interest in the invention or a fee plus a commission on any net proceeds received as a result of petitioner's efforts in exchange for certain promotional services were held not to be "securities". Raymond Lee Org., Inc. v. Div. of Sec., 192 Colo. 112 , 556 P.2d 1209 (1976).

The element of commonality was absent where no other inventor acquired any interest in, nor received any direct benefit from, a particular inventor's invention. Raymond Lee Org., Inc. v. Div. of Sec., 192 Colo. 112 , 556 P.2d 1209 (1976).

The sale of condominium property, when accompanied by collateral agreements involving rental of the units, did constitute the sale of a "security" within the meaning of the Colorado statute. Lowery v. Ford Hill Inv. Co., 192 Colo. 125 , 556 P.2d 1201 (1976).

The fact that a rental agreement imposed by an investment company selling condominiums was mandatory and exclusive as to all purchasers, and that the rental rate, supporting services, and promotion and allocation of renters were all controlled by a common agent, made the venture a "common enterprise" for the purpose of defining an investment contract. Lowery v. Ford Hill Inv. Co., 192 Colo. 125 , 556 P.2d 1201 (1976).

Despite the finding of a "secondary" purpose of personal recreational use, this subordinate motive for a purchase of a condominium did not sufficiently eclipse the plaintiffs' primary purpose of an "expectation of profit". Lowery v. Ford Hill Inv. Co., 192 Colo. 125 , 556 P.2d 1201 (1976).

Plaintiff's percentage interest in real estate venture met the statutory definitions of a security contained in the securities acts, state and federal. Andrews v. Blue, 489 F.2d 367 (10th Cir. 1973).

A contract to jointly purchase viatical settlements of life insurance policies is an investment contract and thus qualifies as a security. A fund that invests in life insurance settlements and sells such investments is a security. Joseph v. Viatica Mgmt., LLC, 55 P.3d 264 (Colo. App. 2002).

Jurisdiction. Whether the contracts are executed in Colorado or out of state is irrelevant since the Colorado securities act expressly covers the solicitation of an offer to buy in this state, and actual execution of a contract within the state is not essential to the exercise of jurisdiction over appellant. Raymond Lee Org., Inc. v. Sec. Comm'n, 36 Colo. App. 417, 543 P.2d 75 (1975), rev'd on other grounds, 192 Colo. 112 , 556 P.2d 1209 (1976).

Selling of memberships in outdoor campground did not involve an investment contract. Straub v. Mtn. Trails Resort, Inc., 770 P.2d 1321 (Colo. App. 1988).

"Investment of money", for purposes of this section, means that the investor must commit his assets to an enterprise or venture in such a manner as to subject himself to a financial loss. Griffin v. Jackson, 759 P.2d 839 (Colo. App. 1988).

A common enterprise exists when the fortunes of the investors are interwoven with and dependent upon the efforts and success of those seeking the investment or of third parties. Griffin v. Jackson, 759 P.2d 839 (Colo. App. 1988).

Franchise agreement not a sale of a security. Mr. Steak, Inc. v. River City Steak, Inc., 342 F. Supp. 640 (D. Colo. 1970), aff'd and modified, 460 F.2d 666 (10th Cir. 1972).

Acting as a lead trader for an auto-trading platform, a system whereby investors mimic the trades of a single investor (the lead trader), and directly responding to investors' questions that were tied to specific market activity with personalized advice about particular stocks constitutes acting as an investment advisor. Offering an exempt newsletter in addition to these services did not exempt the defendant from the licensing requirement. Rome v. Mandel, 2016 COA 192 M, 405 P.3d 387.

Applied in Sterling Recreation Org. Co. v. Segal, 537 F. Supp. 1024 (D. Colo. 1982).

11-51-201.5. Investment adviser registration depository - definition.

As used in this article, unless the context otherwise requires:

  1. "Investment adviser registration depository" means the electronic computer registration system known as the investment adviser registration depository, which is operated and maintained by the financial industry regulatory authority and by the states that participate in the system. The term includes any successor system.

Source: L. 2001: Entire section added, p. 15, § 1, effective March 9. L. 2015: Entire section amended, (SB 15-104), ch. 177, p. 576, § 3, effective May 11.

11-51-202. References to federal statutes.

  1. Each reference in this article to a federal act or statute means, unless the context otherwise requires, that act or statute as in effect on January 1, 1990, together with all rules and regulations under such act or statute as in effect on that date, except as subsequent amendments may become applicable under this article pursuant to subsection (2) of this section.
    1. Whenever an amendment to any federal act or statute to which reference is made in this article is enacted with an effective date on or after January 1, 1990, or whenever an amendment to any rule or regulation under any such federal act or statute is promulgated with an effective date on or after such date, the securities commissioner shall determine whether giving effect to such amendment is inconsistent with the purposes of this article set forth in section 11-51-101 (2), any other provision of this article, or any rule under this article. If the securities commissioner determines that an inconsistency exists, the securities commissioner shall commence rule-making proceedings for the purpose of making, amending, or rescinding such rules under this article as may be appropriate to carry out the policy stated in section 11-51-101 (3). If no rule-making proceeding with respect to such amendment is commenced within ninety days after the effective date of such amendment (or within ninety days after the effective date of this article as set forth in section 11-51-801, if later), such amendment shall apply to this article and the rules under this article. If a rule-making proceeding with respect to such amendment is commenced within ninety days after the effective date of such amendment (or within ninety days after the effective date of this article as set forth in section 11-51-801, if later), such amendment shall not apply to this article or any rule under this article except as may be provided by rule upon completion of such rule-making proceeding.
    2. No provision of this article imposing any liability upon a person or providing a basis for any sanction against a person applies to any act done or omitted by such person in good faith and in conformity with the provisions of this article and the rules under this article, as in effect prior to the effective date of any amendment to any federal act or statute to which reference is made in this article or any amendment to any rule or regulation under any such federal act or statute during the period commencing upon the effective date of such amendment and ending on the date determined by the following:
      1. If no rule-making proceeding with respect to such amendment is commenced under this subsection (2) within ninety days after its effective date (or within ninety days after the effective date of this article as set forth in section 11-51-801, if later), ending on the ninetieth day after such effective date; or
      2. If such a rule-making proceeding is commenced within such period of ninety days, ending upon completion of such rule-making proceeding.
  2. Each reference in this article to the federal "Investment Advisers Act of 1940" means that act in effect on April 30, 1998, together with all rules and regulations under such federal act as in effect on that date, except as subsequent amendments may become applicable under this article pursuant to subsection (2) of this section.

Source: L. 90: Entire article R&RE, p. 706, § 1, effective July 1. L. 98: (3) added, p. 549, § 3, effective April 30.

Cross references: For the "Investment Advisers Act of 1940", see Pub.L. 76-768, 54 Stat. 847 (1940).

PART 3 REGISTRATION OF SECURITIES AND EXEMPTIONS

11-51-301. Requirement for registration of securities.

It is unlawful for any person to offer to sell or sell any security in this state unless it is registered under this article 51; the security or transaction is exempted under section 11-51-307, 11-51-308, 11-51-308.5, or 11-51-309; or the security is a federal covered security for which a notice filing has been made pursuant to section 11-51-304.5.

Source: L. 90: Entire article R&RE, p. 707, § 1, effective July 1. L. 2016: Entire section amended, (SB 16-189), ch. 210, p. 757, § 18, effective June 6. L. 2018: Entire section amended, (HB 18-1388), ch. 280, p. 1755, § 1, effective August 8.

Editor's note: This section is similar to former § 11-51-107 (1) as it existed prior to 1990.

Cross references: For the applicability of this section, see § 11-51-102 (1) and (7). For securities exempted from this section, see § 11-51-307.

ANNOTATION

Law reviews. For article, "Criminal Prosecutions under the Colorado Securities Act", see 47 U. Colo. L. Rev. 233 (1976).

Annotator's note. The following annotations include cases decided under former provisions similar to this section.

When all offerees have equal access to information, there is no need for registration. Lively v. Hirschfeld, 308 F. Supp. 612 (D. Colo. 1970).

This section and 15 U.S.C. § 77e are identical in thrust, although the wording of the federal statute is more comprehensive. People v. Terranova, 38 Colo. App. 476, 563 P.2d 363 (1976).

Only a general intent, and not scienter, need be shown under a charge of sale of unregistered securities. People v. Terranova, 38 Colo. App. 476, 563 P.2d 363 (1976).

Applied in Lowery v. Ford Hill Inv. Co., 37 Colo. App. 260, 548 P.2d 127 (1976).

11-51-302. General registration provisions.

  1. A registration statement may be filed by the issuer, any other person on whose behalf the offering is to be made, or a broker-dealer licensed or exempt under this article.
  2. Every registration statement filed under section 11-51-303 or 11-51-304 shall be accompanied by a registration fee, which shall be determined and collected pursuant to section 11-51-707.
  3. Any document or portion thereof filed with the securities commissioner under this article or a predecessor law within five years preceding the filing of a registration statement may be incorporated by reference in a registration statement to the extent that such document or portion thereof is accurate at the time of such incorporation by reference.
  4. The securities commissioner may, by rule or order, permit the omission of any item of information or document from any registration statement.
  5. The securities commissioner may, by rule or order, require as a condition of registration under section 11-51-304 that the proceeds from the sale of the registered security be held in escrow until the issuer receives a specified amount. The securities commissioner may, by rule or order, determine the conditions of any escrow required under this subsection (5), but the securities commissioner may not reject a depository solely because of its location in another state. Improper release by a depository of such escrow in violation of this subsection (5) is punishable pursuant to section 11-51-603 (2).
    1. In the case of any offering registered under section 11-51-303 or 11-51-304 where less than seventy-five percent of the net proceeds from the sale of the registered securities are committed for use in one or more specific lines of business, eighty percent of the net proceeds received by the issuer shall be placed into escrow until:
      1. The completion of a transaction or series of transactions whereby at least fifty percent of the gross proceeds received from the sale of registered securities (including any amounts actually received by the issuer upon exercise of registered warrants or rights to purchase or subscribe to another security) are committed for use in one or more specific lines of business; and
      2. The lapse of no more than ten days after receipt by the securities commissioner of notice of the proposed release of funds from such escrow.
    2. Such notice must contain the information and be in the form the securities commissioner by rule requires. If an escrow is released and warrants or rights which were once registered remain outstanding, then this subsection (6) shall apply separately to the proceeds from any subsequent exercise of such warrants or rights. Proceeds received from the exercise of such warrants or rights shall then be subject to release upon the conditions stated in this subsection (6), and this subsection (6) shall then each time apply separately with respect to proceeds from the exercise of warrants or rights which were once registered and still remain outstanding. The securities commissioner may, by rule or order, determine the conditions of any escrow required under this subsection (6), but the securities commissioner may not reject a depository solely because of its location in another state. Improper release by a depository of such escrow in violation of this subsection (6) is punishable pursuant to section 11-51-603 (2). The securities commissioner may, by rule or order, waive the requirements of this subsection (6), in whole or in part, with respect to any class of registrations or any specific registration if the securities commissioner finds that such waiver is in the public interest and that compliance with the requirements of this subsection (6) is not necessary for the protection of investors.
    1. A registration statement filed and effective under section 11-51-303 is effective for one year after its effective date and thereafter is effective during the period or periods, but only those periods, when the prospectus contained in the registration statement filed under the federal "Securities Act of 1933", as amended, meets the requirements of section 10 (a) of the federal "Securities Act of 1933", as amended, 15 U.S.C. sec. 77j (a).
    2. Repealed.
    3. A registration statement filed and effective under section 11-51-304 is effective for one year after its effective date unless the securities commissioner by rule or order extends the period of effectiveness.
    4. A registration statement effective under section 11-51-303 or 11-51-304 may be terminated or withdrawn upon the request of the issuer or the person who filed the registration statement and with the consent of the securities commissioner.
    5. All outstanding securities of the same class as a registered security are considered to be registered for the purpose of a nonissuer transaction or series of transactions while the registration statement is effective.
  6. So long as a registration statement under section 11-51-304 is effective, the securities commissioner may, by rule or order, require the person who filed the registration statement to file reports, not more often than quarterly, to keep reasonably current the information contained in the registration statement and to disclose the progress of the offering.
  7. A registration statement under section 11-51-303 or 11-51-304 may be amended after its effective date so as to increase the quantity of securities specified as being offered. Every person filing such an amendment shall pay a registration fee, which shall be determined and collected pursuant to section 11-51-707, with respect to the additional securities being registered. Such an amendment becomes effective when the securities commissioner so orders. If the additional securities being registered have been sold before such amendment is filed and the person filing the amendment provides such information as the securities commissioner may request to show that the failure to register the additional securities prior to their sale was in good faith and not for the purpose of avoiding compliance with this article, the securities commissioner may by order provide that the effectiveness of the amendment shall relate back to the first date of sale of the additional securities.

Source: L. 90: Entire article R&RE, p. 707, § 1, effective July 1. L. 94: (7) amended, p. 1838, § 1, effective July 1. L. 2018: (7)(a) amended and (7)(b) repealed, (HB 18-1388), ch. 280, p. 1755, § 2, effective August 8.

Editor's note: This section is similar to former § 11-51-108 as it existed prior to 1990.

Cross references: For the "Securities Act of 1933", see Pub.L. 73-22, codified at 15 U.S.C. sec. 77a et seq.; for the "Investment Company Act of 1940", see Pub.L. 76-768, 54 Stat. 789 (1940).

ANNOTATION

Law reviews. For article, "Misstatements of the Rule Against Perpetuities by Experts", see 15 Colo. Law. 210 (1986). For article, "The Distinction Between a Financial Planner, Investment Advisor and Broker/Dealer", see 15 Colo. Law. 211 (1986).

Annotator's note. The following annotations include cases decided under former provisions similar to this section.

For registration requirement of persons conducting transactions even if the security or underlying transaction is exempt, see People v. Milne, 690 P.2d 829 (Colo. 1984).

15 U.S.C. § 780 is roughly analogous to this section. People v. Terranova, 38 Colo. App. 476, 563 P.2d 363 (1976).

Scienter is not an element of the charge of sale of securities without a license. People v. Terranova, 38 Colo. App. 476, 563 P.2d 363 (1976).

11-51-303. Registration by coordination.

  1. Securities for which a registration statement has been filed under the federal "Securities Act of 1933" or any securities for which filings have been made pursuant to the security and exchange commission's regulation A, promulgated pursuant to section 3(b) of the federal "Securities Act of 1933", in connection with the offering of the securities may be registered by coordination. A registration statement and accompanying records shall be filed with the securities commissioner pursuant to this section and must contain the following information and be accompanied by the consent to service of process required by section 11-51-706 :
    1. A copy of the latest form of prospectus, offering circular, or letter of notification filed under the federal "Securities Act of 1933";
      1. A current copy of the issuer's articles of incorporation and bylaws or, if so determined by the securities commissioner, the substantial equivalent of the issuer's articles of incorporation and bylaws;
      2. A copy of any agreement with or among the underwriters of the security to be registered;
      3. A copy of any indenture or other instrument governing the issuance of the security to be registered;
      4. A specimen, copy, or description of the security that is required by rule promulgated by the securities commissioner or order issued pursuant to this article; and
    2. A copy of other information or records filed by the issuer under the federal "Securities Act of 1933" that the securities commissioner may request.
    3. (Deleted by amendment, L. 2004, p. 512 ,  1, effective July 1, 2004.)
  2. Any amendments to the federal prospectus, offering circular, or letter of notification shall be promptly filed with the securities commissioner after the amended prospectus or other filing is filed with the federal securities and exchange commission; except that an amendment to the prospectus that only delays the effective date of the registration statement shall not be filed with the securities commissioner.
  3. A registration statement or other filing required to be filed with the securities commissioner pursuant to this section shall be considered effective simultaneously with or subsequent to the federal registration statement or other filing when all of the following conditions are satisfied:
    1. A stop order under subsection (4) of this section or section 11-51-306, or issued by the federal securities and exchange commission, is not in effect and a proceeding is not pending against the issuer under section 11-51-410; and
    2. The registration statement or other filing has been on file with the securities commissioner for at least twenty days; except that the securities commissioner may establish, by rule or order, a period less than twenty days.
  4. The registrant shall promptly notify the securities commissioner of the date when the federal registration statement or other filing becomes effective and the content of any price amendment. The registrant shall promptly file the notice containing the price amendment with the securities commissioner. If the notice is not timely received, the securities commissioner may, without prior notice or hearing, issue a stop order, which retroactively denies the effectiveness of a registration statement or suspends the effectiveness of the registration statement until the registrant complies with this section. The securities commissioner shall promptly notify the registrant of a stop order by telephone or electronic means and be able to confirm that notice of the stop order was given to the registrant. If the registrant subsequently complies with the notice requirements of this section, the stop order becomes void as of the date of its issuance.
  5. If the federal registration statement or other federal filing becomes effective before all of the conditions of this section are satisfied, or if a condition of this section is waived by the securities commissioner, the registration statement or other filing becomes effective when all of the conditions of this section are either satisfied or waived by the securities commissioner. If the registrant notifies the securities commissioner of the date when the federal registration statement or other federal filing is expected to become effective, the securities commissioner shall promptly notify the registrant by telephone or electronic means whether all of the conditions of this section have been satisfied by the registrant or the securities commissioner is waiving one or all of the conditions. The securities commissioner shall also notify the registrant if the securities commissioner intends to institute a proceeding against the registrant pursuant to section 11-51-306 and be able to confirm that such notice was provided to the registrant. Failure of the securities commissioner to notify the registrant of the securities commissioner's intent to institute an action pursuant to section 11-51-306 does not invalidate or preclude the institution of such action.
  6. The commissioner shall promulgate a rule that defines the prompt filing and notification provisions of this section.

Source: L. 90: Entire article R&RE, p. 709, § 1, effective July 1. L. 2004: Entire section amended, p. 512, § 1, effective July 1. L. 2015: Entire section amended, (SB 15-104), ch. 177, p. 576, § 4, effective May 11.

Cross references: For the "Securities Act of 1933", see Pub.L. 73-22, codified at 15 U.S.C. sec. 77a et seq.; for the Security and Exchange Commission's regulation A, see 17 CFR 230.251 to 17 CFR 230.263.

11-51-304. Registration by qualification.

  1. A security may be registered by qualification.
  2. A registration statement under this section shall contain full and fair disclosure of all material facts respecting the investment offered, including the following information, shall state the title of the security and the number or amount being registered under this article, and shall be accompanied by the following documents in addition to the consent to service of process required by section 11-51-706:
    1. With respect to the issuer, its name, address, and form of organization; the state or foreign jurisdiction and date of its organization; the general character and location of its business; a description of its physical properties and equipment; and a statement of the general competitive conditions in the industry or business in which it is or will be engaged;
    2. With respect to every director and officer of the issuer, or person occupying a similar status or performing similar functions, the name, address, and principal occupation for the past five years; the amount of securities of the issuer held as of a specified date within thirty days of the filing of the registration statement; the amount of the securities covered by the registration statement to which the person has indicated an intention to subscribe; and a description of any material interest in any material transaction with the issuer or any significant subsidiary effected within the past three years or proposed to be effected;
    3. With respect to persons covered by paragraph (b) of this subsection (2), the remuneration paid during the past twelve months and estimated to be paid during the next twelve months, directly or indirectly, by the issuer (together with all predecessors, parents, subsidiaries, and affiliates) to all such persons in the aggregate;
    4. With respect to any person owning of record, or beneficially if known, ten percent or more of the outstanding shares of any class of equity security of the issuer, the information specified in paragraph (b) of this subsection (2) other than the occupation;
    5. With respect to every promoter, if the issuer was organized within the past three years, the information specified in paragraph (b) of this subsection (2), any amount paid within that period or intended to be paid to that person, and the consideration for any such payment;
    6. With respect to any person on whose behalf any part of the offering is to be made in a nonissuer distribution, the name and address, the amount of securities of the issuer held as of the date of the filing of the registration statement, a description of any material interest in any material transaction with the issuer or any significant subsidiary effected within the past three years or proposed to be effected, and a statement of the person's reasons for making the offering;
    7. The capitalization and long-term debt on both a current and pro forma basis of the issuer, including a description of each security outstanding or being registered or otherwise offered, and a statement of the amount and kind of consideration whether in the form of cash, physical assets, services, patents, goodwill, or anything else for which the issuer or any subsidiary has issued any of its securities within the past two years or is obligated to issue any of its securities;
    8. The kind and amount of securities to be offered; the proposed offering price or the method by which it is to be computed; any variation therefrom at which any proportion is to be made to any person or class of persons, other than the underwriters, with a specification of any such person or class; the basis upon which the offering is to be made if otherwise than for cash; the estimated aggregate underwriting and selling discounts or commissions and finders' fees including separately cash, securities, contracts, or anything else of value to accrue to the underwriters or finders in connection with the offering or, if the selling discounts or commissions are variable, the basis of determining them and their maximum and minimum amounts; the estimated amounts of other selling expenses, including legal, engineering, and accounting charges; the name and address of every underwriter and every recipient of a finder's fee; a copy of any underwriting or selling group agreement pursuant to which the distribution is to be made, or the proposed form of any such agreement whose terms have not yet been determined; and a description of the plan of distribution of any securities which are to be offered otherwise than through an underwriter;
    9. The estimated cash proceeds to be received by the issuer from the offering; the purposes for which the proceeds are to be used by the issuer; the amount to be used for each purpose; the order or priority in which the proceeds will be used for the purposes stated; and the amounts of any funds to be raised; and, if any part of the proceeds is to be used to acquire any property including goodwill otherwise than in the ordinary course of business, the names and addresses of the vendors, the purchase price, and the names of any persons who have received commissions in connection with the acquisition, and the amounts of any such commissions and any other expenses in connection with the acquisition including the cost of borrowing money to finance the acquisition;
    10. A description of any stock options or other security options outstanding or to be created in connection with the offering, together with the amount of any such options held or to be held by every person required to be named in paragraph (b), (d), (e), (f), or (h) of this subsection (2) and by any person who holds or will hold ten percent or more in the aggregate of any such options;
    11. The date of, parties to, and general effect concisely stated of every management or other material contract made or to be made otherwise than in the ordinary course of business if it is to be performed in whole or in part at or after the filing of the registration statement or was made within the past two years, together with a copy of every such contract, and a description of any pending litigation or proceeding to which the issuer is a party and which materially affects its business or assets including any litigation or proceeding known to be contemplated by governmental authorities;
    12. A copy of any prospectus, pamphlet, circular, form letter, advertisement, or other sales literature intended as of its effective date to be used in connection with the offering;
    13. A specimen or copy of the security being registered, a copy of the issuer's articles of incorporation and bylaws, or their substantial equivalents, as currently in effect, and a copy of any indenture or other instrument covering the security to be registered;
    14. A signed or conformed copy of an opinion of counsel as to the legality of the security being registered, which shall state whether the security when sold will be legally issued, fully paid, and nonassessable and, if a debt security, a binding obligation of the issuer;
    15. The written consent of any accountant, engineer, appraiser, or other person whose profession gives authority to a statement made by him, if any such person is named as having prepared or certified a report or valuation other than a public and official document or statement which is used in connection with the registration statement;
    16. The balance sheet of the issuer as of a date within four months prior to the filing of the registration statement; a profit and loss statement and analysis of surplus for each of the three fiscal years preceding the date of the balance sheet and for any period between the close of the last fiscal year and the date of the balance sheet, or for the period of the issuer's and any predecessor's existence if less than three years; and, if any part of the proceeds of the offering is to be applied to the purchase of any business, the same financial statements which would be required if that business were the registrant; and
    17. Such additional information as the securities commissioner requires by rule or order and as is required for full and fair disclosure respecting the investment offered.
  3. A registration statement under this section becomes effective when the securities commissioner so orders or twenty-eight calendar days from the date of filing if the securities commissioner does not request changes in the registration statement or if the registration statement is not subject to a stop order under section 11-51-306.
  4. The securities commissioner may, by rule or order, require as a condition of registration under this section that an offering circular containing any designated part of the information specified in subsection (2) of this section be sent or given to each person to whom an offer is made before or concurrently with: The first written offer made to such person otherwise than by means of a public advertisement by or for the account of the issuer or any other person on whose behalf the offering is being made or by any broker-dealer or underwriter who is offering part of an unsold allotment or subscription taken as a participant in the distribution; the confirmation of any sale made by or for the account of any person; or a payment made pursuant to any such sale or the delivery of the security pursuant to any such sale, whichever first occurs.
  5. The date of filing shall be the date that the registration statement or an amendment to the registration statement is received by the securities commissioner.
  6. The securities commissioner shall by rule prescribe a limited offering registration procedure for any offering of securities by an issuer if the issuer has its principal office and the majority of its full-time employees in Colorado; if the issuer provides in its offering document that at least eighty percent of the net proceeds from the offering will be used in connection with the operations of such issuer in this state; if the gross proceeds from such offering of securities and any other offering of securities will not exceed five million dollars within any twelve-month period; and if the registration statement and offering documents for such limited offering contain the following:
    1. With respect to the issuer, its principal business address, and its form, state or foreign jurisdiction, and date of its organization;
    2. The general character and location of its business and a description of its physical properties and equipment;
    3. The name and address of every officer and director of the issuer and of every person occupying a similar status or performing similar functions, and for each such person, a brief description of their business experience within the last five years, a description of any transaction during the preceding year or any proposed transaction between any such persons and the issuer, and a description of any of the following events occurring within the last five years that are material to an evaluation of the offering:
      1. The filing of a petition in bankruptcy by or against, or the filing of a receivership action against, any such person personally or by or against any entity for which they served as officer, director, or in a similar status or function;
      2. Any conviction of any such person in a criminal proceeding, or the filing of any indictment, information, or criminal complaint against any such person (excluding traffic violations and other minor offenses); and
      3. Any order, judgment, or decree, not subsequently reversed, suspended, or vacated, against any such person entered by a court of competent jurisdiction or any federal or state regulatory authority involving the violation by such person of any federal or state securities law or in connection with any matter material to the offering, the issuer, or its business;
    4. The principal factors contributing to the risks of the enterprise, including, when applicable, the absence of an operating history of the issuer, the absence of profitable operations in recent periods, the nature of the business or proposed business in which the issuer will engage, and the absence of any previous market for the securities of the issuer;
    5. The amount of authorized and issued securities of the issuer;
    6. The kind and amount of securities to be offered, the proposed offering price, and the minimum and maximum amounts that will be raised in the offering;
    7. The name, address, and amount of compensation of any underwriter or broker-dealer to receive compensation in connection with the offering;
    8. The estimated proceeds to be received by the issuer from the offering and the purposes for which such proceeds are to be used;
    9. An unaudited balance sheet as of a date within four months of the filing of the registration statement and an unaudited profit and loss statement and analysis of surplus for the most recent fiscal year of the issuer and for any period between the close of the last fiscal year and the date of the balance sheet, or for the period of the issuer's existence if less than one year; and
    10. The following legend prominently stated on the cover page of the offering document:
  7. In the case of a registration by qualification under subsection (6) of this section, the securities commissioner may not require as a condition of registration under section 11-51-302 (5) that any of the gross proceeds from the sale of the registered security be held in escrow in the case of an offering underwritten by a broker-dealer registered under the federal "Securities Exchange Act of 1934", or that more than thirty-five percent of the gross proceeds from the sale of the registered security be held in escrow in the case of an offering not underwritten by such a broker-dealer.
  8. A registration statement under subsection (6) of this section becomes effective when the securities commissioner so orders or fourteen calendar days from the date of the filing if the securities commissioner does not request changes in the registration statement or if the registration statement is not subject to a stop order under section 11-51-306.

THESE SECURITIES ARE OFFERED PURSUANT TO A LIMITED OFFERING REGISTRATION WITH THE COLORADO DIVISION OF SECURITIES. THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE COLORADO DIVISION OF SECURITIES NOR HAS THE DIVISION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS OFFERING DOCUMENT. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE. THE STATE OF COLORADO HAS INSTITUTED THIS LIMITED OFFERING REGISTRATION PROCEDURE IN AN EFFORT TO SIMPLIFY AND EXPEDITE THE SMALL BUSINESS CAPITAL FORMATION PROCESS. INVESTORS ARE ENCOURAGED TO ASK QUESTIONS OF AND SEEK ADDITIONAL INFORMATION FROM THE ISSUER AND UNDERWRITER OF THESE SECURITIES.

Source: L. 90: Entire article R&RE, p. 710, § 1, effective July 1. L. 2014: IP(6) amended, (HB 14-1079), ch. 72, p. 302, § 1, effective August 6.

Editor's note: This section is similar to former § 11-51-109 as it existed prior to 1990.

Cross references: For the "Securities Exchange Act of 1934", see Pub.L. 73-22, codified at 15 U.S.C. sec. 78a et seq.

11-51-304.5. Notice filing - investment companies.

  1. With respect to a security that is a federal covered security as defined in section 18 (b)(2) of the federal "Securities Act of 1933", as amended, 15 U.S.C. sec. 77r (b)(2), that is not otherwise exempt under section 11-51-307, 11-51-308, 11-51-308.5, or 11-51-309, before the initial offer of the security, the issuer must file with the securities commissioner a form NF established by the North American Securities Administrators Association, or an analogous form prescribed by the securities commissioner, along with a notice filing fee, which fee shall be determined and collected pursuant to section 11-51-707.
  2. A notice filing under this section is effective only for securities sold within twelve months after the date on which the form NF was filed with the securities commissioner. On or before the expiration date, the issuer may renew a notice filing by filing another form NF and paying a renewal fee, which fee shall be determined and collected pursuant to section 11-51-707. The renewed notice filing becomes effective upon the expiration of the filing being renewed.
  3. If the securities commissioner finds there is a failure to comply with a notice filing or fee requirement of this section, the securities commissioner may issue a stop order suspending the offer or sale of those securities for which notice filing has not been made or the notice filing fee has not been paid. If the securities commissioner finds that a deficiency is corrected, the stop order is void and no penalty will be imposed.

Source: L. 2018: Entire section added, (HB 18-1388), ch. 280, p. 1756, § 3, effective August 8.

11-51-305. Filing of sales literature.

  1. The securities commissioner may, by rule or order, require the filing of any prospectus, pamphlet, circular, form letter, advertisement, or other sales literature addressed or intended for distribution to prospective investors, unless:
    1. The security or the transaction is exempted by section 11-51-307, 11-51-308, or 11-51-309; or
    2. The security is subject to the filing requirements of section 11-51-304.5.

Source: L. 90: Entire article R&RE, p. 714, § 1, effective July 1. L. 2018: Entire section amended, (HB 18-1388), ch. 280, p. 1756, § 4, effective August 8.

Editor's note: This section is similar to former § 11-51-114 as it existed prior to 1990.

Cross references: For securities exempted from this section, see § 11-51-307.

ANNOTATION

Law reviews. For article, "Criminal Prosecutions under the Colorado Securities Act", see 47 U. Colo. L. Rev. 233 (1976).

Applied in Brooks v. Land Drilling Co., 574 F. Supp. 1050 (D. Colo. 1983) (decided under § 11-51-114 as it existed prior to the 1990 repeal and reenactment of this article).

11-51-306. Denial, suspension, or revocation of registration.

  1. The securities commissioner may issue a stop order denying effectiveness to, or suspending or revoking the effectiveness of, any registration statement, if the securities commissioner finds violations of the escrow provisions in section 11-51-302 (5) or (6), or, in the case of any registration statement under section 11-51-304, if the securities commissioner finds that the order is in the public interest and that any one of the following grounds exists:
    1. The registration statement as of its effective date or as of any earlier date in the case of an order denying effectiveness, any amendment under section 11-51-302 (9) as of its effective date, or any report under section 11-51-302 (8) contains any false or misleading statement in violation of section 11-51-502;
    2. Any provision of this article or any rule, order, or condition imposed under this article has been violated, in connection with the offering, by the issuer, any partner, officer, or director of the issuer, any person occupying a similar status or performing similar functions, or any person directly or indirectly controlling or controlled by the issuer. Notwithstanding any other provision of this article, the securities commissioner shall not issue any stop order denying effectiveness to, or suspending or revoking the effectiveness of, any registration statement on the grounds that the offering, when viewed on its merits as an investment, is unfair, unjust, or inequitable.
    3. The security registered or sought to be registered is the subject of an administrative stop order or similar order or a permanent or temporary injunction of any court of competent jurisdiction entered under any other federal or state law applicable to the offering; but the securities commissioner may not institute a proceeding against an effective registration statement under this paragraph (c) more than one year from the date of the order or injunction relied on, and the securities commissioner may not enter an order under this paragraph (c) on the basis of an order or injunction entered under any other state law unless that order or injunction was based on facts which would currently constitute a ground for a stop order under this section; or
    4. The issuer's enterprise or method of business includes or would include activities which are illegal where performed.

    (1.5) With respect to a security sought to be registered pursuant to section 11-51-303, the securities commissioner may issue a stop order denying effectiveness to, or suspending or revoking the effectiveness of, any registration statement if the securities commissioner finds that there has been a failure to comply with section 11-51-303 (2).

  2. The securities commissioner may, by summary order under section 11-51-606 (3)(a), summarily postpone or suspend the effectiveness of a registration statement pending final determination of any proceeding under this section.
  3. No stop order may be entered under this section, except under subsection (2) of this section, without the provision to the issuer of an appropriate prior notice, an opportunity for a hearing, and written findings of fact and conclusions of law.
  4. The securities commissioner may vacate or modify a stop order if the securities commissioner finds that the conditions which prompted its entry have changed or that it is otherwise in the public interest to do so.

Source: L. 90: Entire article R&RE, p. 714, § 1, effective July 1. L. 94: (2) amended, p. 1839, § 2, effective July 1. L. 2004: (1.5) added, p. 514, § 2, effective July 1.

Editor's note: This section is similar to former § 11-51-112 as it existed prior to 1990.

11-51-307. Exempt securities.

  1. The following securities are exempted from sections 11-51-301 and 11-51-305:
    1. Any security (including a revenue obligation) issued or guaranteed by the United States, any state, any political subdivision of a state, or any agency or corporate or other instrumentality of one or more of any of them or any certificate of deposit for any of them;
    2. Any security issued or guaranteed by Canada, any Canadian province, any political subdivision of any such province, any agency or corporate or other instrumentality of one or more of any of them, or any other foreign government with which the United States currently maintains diplomatic relations, if the security is recognized as a valid obligation by the issuer or guarantor;
    3. Any security issued by and representing an interest in or a debt of, or guaranteed by, any depository institution organized under the laws of the United States or any depository institution organized and supervised under the laws of any state;
    4. Any security issued or guaranteed by any federal credit union or any credit union, industrial loan association, or similar association organized and supervised under the laws of this state;
    5. Any security issued or guaranteed by any railroad, other common carrier, public utility, or holding company which is: Subject to the jurisdiction of the surface transportation board; a registered holding company under the federal "Public Utility Holding Company Act of 1935" or a subsidiary of such a company within the meaning of that act; or regulated in respect of its issuance or guarantee of the security by a governmental authority of the United States, any state, Canada, or any Canadian province;
    6. Any security listed or approved for listing upon notice of issuance on any national securities exchange registered under the federal "Securities Exchange Act of 1934", 15 U.S.C. sec. 78f, as amended, or any other security of the same issuer that is of a senior or substantially equal rank; any security called for by subscription rights or warrants so listed, designated, or approved; or any warrant or right to purchase or subscribe to any of them;
    7. Any security which is issued by any person organized and operated not for private profit but exclusively for religious, educational, benevolent, or charitable purposes or as a chamber of commerce or trade or professional association and which is offered or sold to a bona fide constituent or member of such organization or association, if no direct or indirect commission or remuneration is paid in connection with the offer or sale of such security except to a licensed broker-dealer; or any security which is issued by any cooperative association engaged in the sale or production of electricity and regulated by the public utilities commission of this state;
    8. Any commercial paper which arises out of a current transaction or the proceeds of which have been or are to be used for current transactions and which evidences an obligation to pay cash within nine months of the date of issuance, exclusive of days of grace, or any renewal of such paper which is likewise limited, or any guarantee of such paper or of any such renewal;
    9. Any security issued in connection with an employee's stock purchase, savings, pension, profit-sharing, or similar benefit plan; and
    10. Any security issued by a cooperative association as defined in article 55 of title 7, C.R.S.
    11. Repealed.
  2. Repealed.

Source: L. 90: Entire article R&RE, p. 715, § 1, effective July 1. L. 2001: (1)(e) amended, p. 1267, § 7, effective June 5. L. 2008: (1)(f) amended, p. 21, § 10, effective August 5. L. 2018: (1)(k) and (2) repealed, (HB 18-1388), ch. 280, p. 1756, § 5, effective August 8.

Editor's note: This section is similar to former § 11-51-113 as it existed prior to 1990.

Cross references: For the "Public Utility Holding Company Act of 1935", see Pub.L. 74-333, codified at 15 U.S.C. sec. 79 et seq.; for the "Investment Company Act of 1940", see Pub.L. 76-768, 54 Stat. 789 (1940); for the "Investment Advisers Act of 1940", see Pub.L. 76-768, 54 Stat. 847 (1940).

ANNOTATION

Law reviews. For article, "Criminal Prosecutions under the Colorado Securities Act", see 47 U. Colo. L. Rev. 233 (1976). For article, "Securities Registration Considerations in Condominium Developments", see 11 Colo. Law. 2795 (1982).

Annotator's note. The following annotations include cases decided under former provisions similar to this section.

Parallels federal acts. The Colorado securities act parallels the federal securities act of 1933 and the securities and exchange act of 1934. Sauer v. Hays, 36 Colo. App. 190, 539 P.2d 1343 (1975).

The burden of proof lies upon the party claiming an exemption. Lowery v. Ford Hill Inv. Co., 192 Colo. 125 , 556 P.2d 1201 (1976).

This section values information over mere disclaimers. Lowery v. Ford Hill Inv. Co., 192 Colo. 125 , 556 P.2d 1201 (1976).

The crux of the registration requirement is disclosure of information sufficient to allow informed decision-making by the investors as a class. Lowery v. Ford Hill Inv. Co., 192 Colo. 125 , 556 P.2d 1201 (1976).

The mere fact that seller cautioned buyers about the investment qualities of a purchase does not meet the degree of disclosure or access required by this section. Lowery v. Ford Hill Inv. Co., 192 Colo. 125 , 556 P.2d 1201 (1976).

Applied in Brooks v. Land Drilling Co., 574 F. Supp. 1050 (D. Colo. 1983).

11-51-308. Exempt transactions.

  1. The following transactions are exempted from sections 11-51-301 and 11-51-305:
    1. Any isolated nonissuer transaction, whether or not effected through a broker-dealer;
    2. Any nonissuer distribution of an outstanding security:
      1. If a recognized securities manual contains the name of the issuer, the names of the issuer's officers and directors, a balance sheet of the issuer as of a date within the eighteen-month period immediately preceding the date of the distribution, and a profit and loss statement for either the fiscal year preceding that date or the most recent year of operations;
      2. If the security has a fixed maturity or a fixed interest or dividend provision and there has been no default by the issuer during the current fiscal year or within the three preceding fiscal years, or during the existence of the issuer and any predecessors if less than three years, in the payment of principal, interest, or dividend on any security of the issuer;
      3. If any class of securities of the issuer is registered under section 12 of the federal "Securities Exchange Act of 1934";
      4. If the issuer is an investment company registered under the federal "Investment Company Act of 1940"; or
      5. If the issuer of the security has filed and maintained with the securities commissioner, for not less than ninety days next preceding the transaction, such information as the securities commissioner may specify by rule and has paid an exemption fee to be determined and collected as provided in section 11-51-707;
    3. Any nonissuer transaction effected by or through a licensed broker-dealer pursuant to an unsolicited order or offer to buy, if either the confirmation of the transaction delivered to the customer clearly states that the transaction was unsolicited or the broker-dealer obtains a written acknowledgment signed by the customer that the transaction was unsolicited and a copy of the confirmation or the acknowledgment is preserved by the broker-dealer for such period as the securities commissioner may, by rule, require;
    4. Any transaction between the issuer or other person on whose behalf the offering is made and an underwriter or among underwriters;
    5. Any transaction in a bond or other evidence of indebtedness secured by a mortgage, security interest, or deed of trust or by an agreement for the sale of real estate or chattels, if the entire mortgage, security interest, deed of trust, or agreement together with all the bonds or other evidences of indebtedness secured thereby is offered and sold as a unit;
    6. Any transaction by an executor, administrator, sheriff, marshal, receiver, trustee in bankruptcy, guardian, or conservator;
    7. Any transaction executed by a bona fide pledgee without any purpose of evading the provisions of this article;
    8. Any offer or sale to a financial or institutional investor or to a broker-dealer, whether the purchaser is acting for itself or in some fiduciary capacity;
    9. Any transaction not involving any public offering;
    10. Any transaction pursuant to an offering of securities directed by the offeror to not more than twenty persons (other than those designated in paragraph (h) of this subsection (1)) in this state and sold to not more than ten buyers (other than those designated in paragraph (h) of this subsection (1)) in this state during any period of twelve consecutive months, whether or not the offeror or any of the offerees or buyers is then present in this state, if:
      1. The seller reasonably believes that all the buyers in this state (other than those designated in paragraph (h) of this subsection (1)) are purchasing for investment; and
      2. No commission or other remuneration is paid or given directly or indirectly for soliciting any prospective buyer in this state (other than those designated in paragraph (h) of this subsection (1)) except to a licensed broker-dealer or a licensed sales representative;
    11. Any offer or sale of a preorganization certificate or subscription if no commission or other remuneration is paid or given directly or indirectly for soliciting any prospective subscriber, if the number of subscribers does not exceed twenty-five, and if no payment is made by any subscriber;
    12. Any transaction pursuant to an offer to existing security holders of the issuer, including persons who at the time of the transaction are holders of convertible securities, nontransferable warrants, or transferable warrants exercisable within not more than ninety days of their issuance, if no commission or other remuneration (other than a standby commission) is paid or given directly or indirectly for soliciting any security holder in this state except to a licensed or exempt broker-dealer;
    13. A transaction involving an offer to sell, but not a sale, of a security if:
      1. A registration or offering statement or similar document as required under the federal "Securities Act of 1933" has been filed with the securities and exchange commission, but is not effective;
      2. A registration statement, if required, has been filed under section 11-51-303, but is not effective; and
      3. No stop order of which the offeror is aware has been entered by the securities commissioner or the securities and exchange commission;
    14. A transaction involving an offer to sell, but not a sale, of a security if:
      1. A registration statement has been filed under section 11-51-304 but is not effective; and
      2. No stop order of which the offeror is aware has been entered by the securities commissioner;
    15. A transaction described in section 11-51-201 (13)(g); and
    16. Any offer or sale of a security in compliance with an exemption from registration with the securities and exchange commission under section 3(b)(1) or 4(a)(2) of the federal "Securities Act of 1933", as amended, 15 U.S.C. secs. 77c (b)(1) and 77d (a)(2), pursuant to regulations adopted in accordance with the federal act by the securities and exchange commission; except that an offer or sale of a security in compliance with an exemption from registration with the securities and exchange commission under regulation A, codified at 17 CFR 230.251 to 17 CFR 230.263 and adopted pursuant to section 3(b) of the federal "Securities Act of 1933", as amended, is not exempted under this section. The issuer shall file with the securities commissioner a notification of exemption, in a form prescribed by the securities commissioner, and pay an exemption fee to be determined and collected pursuant to section 11-51-707.

Source: L. 90: Entire article R&RE, p. 717, § 1, effective July 1. L. 2015: (1)(p) amended, (SB 15-104), ch. 177, p. 578, § 5, effective May 11; (1)(p) amended, (SB 15-264), ch. 259, p. 944, § 14, effective August 5.

Editor's note:

  1. This section is similar to former § 11-51-113 as it existed prior to 1990.
  2. Amendments to this section by SB 15-104 and SB 15-264 were harmonized.

Cross references: For the "Securities Exchange Act of 1934", see Pub.L. 78-291, codified at 15 U.S.C. sec. 78a et seq.; for the "Investment Company Act of 1940", see Pub.L. 76-768, 54 Stat. 789 (1940); for the "Securities Act of 1933", see Pub.L. 73-22, codified at 15 U.S.C. sec. 77a et seq.

ANNOTATION

Law reviews. For article, "Criminal Prosecutions under the Colorado Securities Act", see 47 U. Colo. L. Rev. 233 (1976). For article, "Securities Registration Considerations in Condominium Developments", see 11 Colo. Law. 2795 (1982).

Annotator's note. The following annotations include cases decided under former provisions similar to this section.

Parallels federal acts. The Colorado securities act parallels the federal securities act of 1933 and the securities and exchange act of 1934. Sauer v. Hays, 36 Colo. App. 190, 539 P.2d 1343 (1975).

The burden of proof lies upon the party claiming an exemption. Lowery v. Ford Hill Inv. Co., 192 Colo. 125 , 556 P.2d 1201 (1976).

This section values information over mere disclaimers. Lowery v. Ford Hill Inv. Co., 192 Colo. 125 , 556 P.2d 1201 (1976).

The crux of the registration requirement is disclosure of information sufficient to allow informed decision-making by the investors as a class. Lowery v. Ford Hill Inv. Co., 192 Colo. 125 , 556 P.2d 1201 (1976).

The mere fact that seller cautioned buyers about the investment qualities of a purchase does not meet the degree of disclosure or access required by this section. Lowery v. Ford Hill Inv. Co., 192 Colo. 125 , 556 P.2d 1201 (1976).

Design of private offering exemption. The private offering exemption was designed principally to permit the issuance of securities in transactions in which the remedial purposes of registration were satisfied by independent factors. Lowery v. Ford Hill Inv. Co., 192 Colo. 125 , 556 P.2d 1201 (1976).

Question of fact. The test as to whether or not an offering is public is a question to be determined from the facts in each particular case. Lowery v. Ford Hill Inv. Co., 192 Colo. 125 , 556 P.2d 1201 (1976).

Availability of nonpublic offering exemption in subsection (1)(i) is a question of fact. People v. Morrow, 682 P.2d 1201 (Colo. App. 1983).

Each "offering" to be separately assessed. To determine the public nature of an offering, the predicates for the exemption must apply to the offerees as a group and should not be analyzed on an investor-by-investor basis. Each "offering" must be separately assessed. Lowery v. Ford Hill Inv. Co., 192 Colo. 125 , 556 P.2d 1201 (1976).

The real test as to whether or not an offering is public is whether the particular class of persons affected needs the information made available by registration. Lowery v. Ford Hill Inv. Co., 192 Colo. 125 , 556 P.2d 1201 (1976).

Criteria for test. As to the statutory test for determining whether an offering is private, criteria established by the Colorado division of securities include: (1) The number of offerees and actual purchasers; (2) the offeree's relationship to the issuer; (3) the offeree's knowledge; (4) the manner of the offering; (5) whether the offer is made in a medium intended for general distribution; and (6) a commitment by the offeree that the security is taken for investment only and not for resale or redistribution. Lowery v. Ford Hill Inv. Co., 192 Colo. 125 , 556 P.2d 1201 (1976).

When requirements for private offering exemption satisfied. The requirements for private offering exemption are satisfied only if "each offeree . . . does not require the information which would be set forth in a registration statement". Lowery v. Ford Hill Inv. Co., 192 Colo. 125 , 556 P.2d 1201 (1976).

Securities were not exempt from registration requirements under subsection (1)(p) where respondents engaged in a general solicitation and thus the offering was not conducted in accordance with rule 506 of regulation D promulgated under the federal Securities Act of 1933. Black Diamond Fund, LLLP v. Joseph, 211 P.3d 727 (Colo. App. 2009).

Applied in Brooks v. Land Drilling Co., 574 F. Supp. 1050 (D. Colo. 1983).

11-51-308.5. Crowdfunding - intrastate offering of securities - online intermediaries - rules - fees - short title - legislative declaration.

  1. Short title. This act shall be known and may be cited as the "Colorado Crowdfunding Act".
  2. Legislative declaration. The general assembly hereby:
    1. Finds that:
      1. Start-up companies play a critical role in expanding economic opportunities, creating new jobs, and generating revenues; and
      2. Lack of access to capital is an obstacle to starting and expanding small business, inhibits job growth, and has negatively affected the state's economy;
    2. Determines that:
      1. The costs and complexities of state securities registration can outweigh the benefits to Colorado businesses seeking to raise capital by small securities offerings;
      2. The use of crowdfunding, or raising money online through small contributions from a large number of investors, is presently restricted by our state securities laws; and
      3. Crowdfunding allows small companies to access the capital they need to start or expand businesses; and
    3. Declares that:
      1. In compliance with exemptions from federal law, the exemption provided by this section applies only if:
        1. The investor is a Colorado resident or is an entity formed pursuant to Colorado laws;
        2. The issuer of the securities is an entity formed pursuant to Colorado laws and doing business in Colorado; and
        3. The issuer intends to use and uses at least eighty percent of the proceeds of the sale of securities in Colorado; and
      2. Creating a Colorado crowdfunding option, with limitations to protect investors, will enable Colorado businesses to obtain capital, democratize venture capital formation, and facilitate investment by Colorado residents in Colorado start-ups, thereby promoting the formation and growth of local companies and the accompanying job creation.
  3. Exemption. If an offer or sale of a security by an issuer made after the securities commissioner initially promulgates rules to implement this section is conducted in accordance with all the following requirements and those contained in the rules promulgated pursuant to subsection (4) of this section, the transaction is exempt from section 11-51-301:
    1. The issuer of the security must be a business entity organized pursuant to the laws of Colorado and authorized to do business in Colorado and meet all of the following requirements:
      1. The securities must meet the requirements of the federal exemption for intrastate offerings in section 3 (a)(11) of the federal "Securities Act of 1933", 15 U.S.C. sec. 77c (a)(11), and the securities and exchange commission's rule 147 adopted pursuant to said act, 17 CFR 230.147, for an intrastate offering being conducted in Colorado. Prior to any sale pursuant to this exemption, the issuer shall obtain documentary evidence from each prospective purchaser that provides the seller with a reasonable basis to believe that the purchaser meets the requirements of subsection (d) of the securities and exchange commission's rule 147, 17 CFR 230.147 (d).
      2. The sum of all cash and other consideration to be received for all sales of the security pursuant to the exemption provided by this section must not exceed one million dollars during any twelve-month period; except that, if before offering and selling the securities, the issuer submits audited financial statements regarding the issuer to the securities commissioner, the sum must not exceed two million dollars.
      3. The aggregate amount sold to any purchaser during the twelve-month period preceding the date of the sale must not exceed five thousand dollars unless the purchaser is an accredited investor as defined by the securities and exchange commission's rule 501 of Regulation D, 17 CFR 230.501.
      4. Unless waived or modified by written consent by the securities commissioner, not less than ten days before the commencement of an offering of securities pursuant to the exemption provided by this section, the issuer must do all the following:
        1. Make a notice filing with the securities commissioner on a form prescribed by the securities commissioner, including a consent to service of process in such form as the securities commissioner may require;
        2. Pay the fee established by the securities commissioner;
        3. Provide the securities commissioner with a copy of the disclosure document to be provided to prospective purchasers pursuant to subparagraph (X) of this paragraph (a);
        4. Provide the securities commissioner with a copy of an escrow agreement with a depository institution authorized to do business in Colorado in which the issuer will deposit the purchaser's funds or cause the purchaser's funds to be deposited and that the issuer may access only as provided in sub-subparagraph (F) of this subparagraph (IV). The depository institution in which the purchaser funds are deposited shall act only at the direction of the party establishing the escrow agreement and does not have any duty or liability, contractual or otherwise, to any purchaser or other person. A purchaser may cancel the purchaser's commitment to invest if the minimum amount established pursuant to sub-subparagraph (F) of this subparagraph (IV) is not raised before the time stated in the escrow agreement.
        5. Maintain all records with respect to any offering conducted pursuant to the exemption provided by this section as the securities commissioner may by rule require; and
        6. Establish both a minimum and a maximum offering amount, and deposit all funds raised from purchasers pursuant to the exemption provided by this section into an escrow account established pursuant to sub-subparagraph (D) of this subparagraph (IV); except that, once the minimum offering amount has been raised and deposited in the escrow account, the issuer may terminate the escrow arrangement. The minimum established must be not less than one-half of the maximum offering amount. The maximum amount must not exceed the limitations set forth in subparagraph (II) of this paragraph (a). The issuer shall not access the escrow funds until the aggregate funds raised from all purchasers equals or exceeds the minimum amount. The issuer shall use all funds in accordance with representations made to purchasers.
      5. The issuer must not be, either before or as a result of the offering, an investment company, as defined in section 3 of the federal "Investment Company Act of 1940", 15 U.S.C. sec. 80a-3, an entity that would be an investment company but for the exclusions provided in section 3 (c) of the federal "Investment Company Act of 1940", 15 U.S.C. sec. 80a-3 (c), or subject to the reporting requirements of section 13 or 15 (d) of the federal "Securities Exchange Act of 1934", 15 U.S.C. sec. 78m or 78o (d).
      6. The issuer shall inform all prospective purchasers of securities offered pursuant to the exemption provided by this section, in plain, nontechnical language using words with common and everyday meaning that are understandable to the average reader, that the securities have not been registered pursuant to federal or state securities law and that the securities are subject to limitations on resale. The issuer shall display the following legend conspicuously on the cover page of the disclosure document required by subparagraph (X) of this paragraph (a):
      7. The issuer shall require each purchaser to certify in writing or electronically as follows:
      8. The issuer must obtain from each purchaser of a security offered pursuant to the exemption provided by this section evidence that the purchaser is a resident of Colorado or, if the purchaser is an entity, is organized pursuant to the laws of Colorado and, if applicable, is an accredited investor.
      9. All payments for purchase of securities offered pursuant to the exemption provided by this section must be directed to and held by the depository institution specified in sub-subparagraph (D) of subparagraph (IV) of this paragraph (a). The securities commissioner may request from the depository institution information necessary to ensure compliance with this section. This information is not a public record and is not available for public inspection.
      10. The issuer of securities offered pursuant to the exemption provided by this section must provide a disclosure document to each prospective purchaser at the time the offer of securities is made to the prospective purchaser that contains the information that the securities commissioner requires by rule.
      11. All sales pursuant to an offering or single plan of financing pursuant to the exemption provided by this section must meet all of the terms and conditions of this section. The exemption provided by this section shall not be used in conjunction with any other exemption pursuant to section 11-51-307, 11-51-308, or 11-51-309 during the immediately preceding twelve-month period.
      12. The exemption provided by this section is not available if an issuer or a person affiliated with the issuer or offering is subject to disqualification established by the securities commissioner by rule or contained in the securities and exchange commission's rule 506 (d) adopted pursuant to the federal "Securities Act of 1933", 17 CFR 230.506 (d).
      13. An issuer of a security pursuant to this section shall provide, free of charge, a quarterly report to the issuer's owners. An issuer may satisfy the reporting requirement of this subparagraph (XIII) by making the information available on a website operated by an online intermediary if the information is made available within forty-five days after the end of each fiscal quarter and remains available until the succeeding quarterly report is issued. An issuer shall file each quarterly report required pursuant to this subparagraph (XIII) with the division and, if the quarterly report is made available on a website operated by an online intermediary, the issuer shall also provide a written copy of the report to any owner upon request. The report must contain all the following:
        1. Compensation received by each director and executive officer, including cash compensation earned since the previous report and on an annual basis and any bonuses, stock options, other rights to receive securities of the issuer or any affiliate of the issuer, or other compensation received; and
        2. An analysis by management of the issuer of the business operations and financial condition of the issuer.
      14. The issuer may distribute a notice within Colorado that is limited to a statement that the issuer is conducting an offering and that includes:
        1. The name of the online intermediary, sales representative, or licensed broker-dealer through which the offering is being conducted; and
        2. A link directing the potential investor to the online intermediary's or broker-dealer's website.
    2. An issuer may make an offering pursuant to the exemption provided by this section through:
      1. A broker-dealer that is licensed pursuant to part 4 of this article with its principal place of business in Colorado;
      2. A sales representative that is licensed pursuant to part 4 of this article; or
      3. An online intermediary that meets the requirements of paragraph (c) of this subsection (3).
      1. Before acting as an online intermediary for an offering pursuant to the exemption provided by this section, the online intermediary must file a statement with the securities commissioner, accompanied by the filing fee established by the securities commissioner, that includes all the following:
        1. That the online intermediary consents to service of process in Colorado pursuant to section 11-51-706;
        2. That the online intermediary will provide information with respect to the offer of securities in Colorado only pursuant to the exemption provided by this section;
        3. The identity and location of, and contact information for, the online intermediary, including the names and physical addresses of the officers, directors, managers, partners, and other persons who control the business decisions of the online intermediary;
        4. A statement that sets forth any changes to the information contained in the original or any subsequently filed statement required by this subparagraph (I); and
        5. Notice of its intention to act as online intermediary for an offering, which statement must be on such form as the securities commissioner requires.
      2. An online intermediary shall maintain records of all offers of securities effected through its website and shall provide ready access to the records to the division, upon request. The records of an online intermediary required pursuant to this subparagraph (II) are subject to the reasonable periodic, special, or other examination or inspection by a representative of the securities commissioner, in or outside Colorado, as the securities commissioner considers necessary or appropriate in the public interest and for the protection of purchasers. An examination or inspection may be made at any time and without prior notice. The securities commissioner may copy, and remove for examination or inspection copies of, all records that the securities commissioner reasonably considers necessary or appropriate to conduct the examination or inspection. The securities commissioner may assess a reasonable charge for conducting an examination or inspection pursuant to this subparagraph (II). The securities commissioner may by rule require an online intermediary to:
        1. File with the securities commissioner specified financial and other information;
        2. Make and maintain specified records and preserve such records for five years or such other period as may be specified by rule; and
        3. Establish written supervisory procedures and a system for applying such procedures that is reasonably expected to prevent and detect violations of this article.
      3. An online intermediary shall:
        1. Limit its offer of securities pursuant to the exemption provided by this section to only Colorado residents as that term is defined in subsection (d) of the securities and exchange commission's rule 147, 17 CFR 230.147 (d);
        2. Not hold a financial interest in any issuer or be affiliated with or under common control with an issuer whose securities appear on any website maintained for the offer of securities by the online intermediary; and
        3. Not be an owner of any issuer offering securities pursuant to the exemption provided by this section.
      4. An online intermediary shall not be compensated based on the amount of securities sold. The fee that an online intermediary may charge an issuer for an offering of securities pursuant to the exemption provided by this section must be either:
        1. A fixed amount for each offering;
        2. A variable amount based on the length of time that the securities are offered by the online intermediary; or
        3. A combination of the fixed and variable amounts.
      5. An online intermediary shall not identify, promote, or otherwise refer to any individual security offered by it in any advertising for or on behalf of the online intermediary.
      6. An online intermediary shall not engage in any other activities that the securities commissioner, by rule, determines are prohibited by the online intermediary.
      7. An online intermediary and a director, executive officer, general partner, managing member, or other person with management authority over the online intermediary must not have been subject to any conviction, order, judgment, decree, or other action that would disqualify an issuer from claiming an exemption pursuant to rule 506 (a) to (d) adopted by the securities exchange commission pursuant to the federal "Securities Act of 1933", 17 CFR 230.506 (a) to (d).
  4. Rules. The securities commissioner may adopt rules to:
    1. Implement or enforce this section or provide exceptions or waivers to the requirements of this section; or
    2. Conform or add to the requirements of this section to accommodate the requirements of federal law applicable to the offer or sale of a security by an issuer under this section.

THESE SECURITIES HAVE NOT BEEN REGISTERED WITH, APPROVED BY, OR RECOMMENDED BY ANY FEDERAL OR STATE AGENCY. IN MAKING AN INVESTMENT DECISION, PURCHASERS MUST RELY ON THEIR OWN EXAMINATION OF THE ISSUER AND THE TERMS OF THE OFFERING, INCLUDING THE MERITS AND RISKS INVOLVED. THESE SECURITIES HAVE NOT BEEN RECOMMENDED BY ANY FEDERAL OR STATE SECURITIES COMMISSION OR DIVISION OR OTHER REGULATORY AUTHORITY. FURTHERMORE, THE FOREGOING AUTHORITIES HAVE NOT CONFIRMED THE ACCURACY OR DETERMINED THE ADEQUACY OF THIS DOCUMENT. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE. THESE SECURITIES ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED BY SUBSECTION (e) OF SECURITIES AND EXCHANGE COMMISSION RULE 147, 17 CFR 230.147 (e), AS PROMULGATED PURSUANT TO THE FEDERAL "SECURITIES ACT OF 1933", AS AMENDED, AND THE APPLICABLE STATE SECURITIES LAWS, PURSUANT TO REGISTRATION OR EXEMPTION THEREFROM. INVESTORS SHOULD BE AWARE THAT THEY WILL BE REQUIRED TO BEAR THE FINANCIAL RISKS OF THIS INVESTMENT FOR AN INDEFINITE PERIOD OF TIME.

I understand and acknowledge that I am investing in a high-risk, speculative business venture. I may lose all of my investment, or under some circumstances more than my investment, and I can afford this loss. This offering has not been reviewed or approved by any state or federal securities commission or division or other regulatory authority and no such person or authority has confirmed the accuracy or determined the adequacy of any disclosure made to me relating to this offering. The securities I am acquiring in this offering cannot be readily sold, are illiquid, there is no ready market for the sale of such securities, it may be difficult or impossible for me to sell or otherwise dispose of this investment, and, accordingly, I may be required to hold this investment indefinitely. I may be subject to tax on my share of the taxable income and losses of the company, whether or not I have sold or otherwise disposed of my investment or received any dividends or other distributions from the company.

Source: L. 2015: Entire section added, (HB 15-1246), ch. 98, p. 279, § 1, effective August 5. L. 2016: (3)(a)(IV)(D), (3)(a)(IV)(F), and (3)(a)(IX) amended, (HB 16-1049), ch. 3, p. 5, § 1, effective March 9.

ANNOTATION

Law reviews. For article, "Crowdfunding in Colorado is Now Available", see 44 Colo. Law. 49 (Nov. 2015).

11-51-308.7. Colorado digital token act - legislative declaration - exemptions - definitions - rules.

  1. Short title. The short title of this section is the "Colorado Digital Token Act".
  2. Legislative declaration. The general assembly:
    1. Finds that:
      1. Cryptoeconomic systems, which are protocols that govern the production, distribution, and consumption of goods and services in a decentralized digital economy, can be an important component of blockchain technology;
      2. Blockchain technology has the potential to create new forms of decentralized "Web 3.0" platforms and applications that have advantages over the current centralized internet platforms and applications;
      3. Colorado has become a hub for companies and entrepreneurs that seek to utilize cryptoeconomic systems to power blockchain technology-based business models;
      4. Companies that seek to utilize cryptoeconomic systems face regulatory uncertainty that the issuance, sale, and purchase of digital tokens that have a primarily consumptive purpose may be prohibited under this article 51;
      5. Crowdfunding consumer goods platforms provide a means for companies and entrepreneurs to acquire growth capital and customers by preselling the right to receive consumer goods before the goods are ready to be sold or used, in addition to providing a marketplace for the purchase and sale of consumer goods that are ready for use;
      6. Companies using cryptoeconomic systems that seek to acquire growth capital and customers by preselling digital tokens that have a primarily consumptive purpose face regulatory uncertainty that the offer, sale, or transfer of digital tokens may be prohibited under this article 51; and
      7. Companies that seek to create a marketplace to effect the purchase, sale, or transfer of digital tokens that have a primarily consumptive purpose face regulatory uncertainty that effecting or attempting to effect the purchase, sale, or transfer of a digital token may be prohibited under this article 51;
    2. Determines that:
      1. The costs and complexities of state securities registration can outweigh the benefits to Colorado businesses using cryptoeconomic systems that seek to raise growth capital and create new decentralized internet platforms and applications by offering the sale or transfer of digital tokens that have a primarily consumptive purpose;
      2. Companies that seek to issue or effect the purchase, sale, or transfer of digital tokens that have a primarily consumptive purpose face regulatory uncertainty under Colorado's securities laws; and
      3. The issuance, sale, purchase, and transfer of digital tokens that have a primarily consumptive purpose allow companies using cryptoeconomic systems to access the growth capital and build the necessary network of participants they need to grow and expand their businesses; and
    3. Declares that creating a Colorado digital token act, with limitations to protect consumers, will enable Colorado businesses that use cryptoeconomic systems to obtain growth capital to help grow and expand their businesses, thereby promoting the formation and growth of local companies and the accompanying job creation and helping make Colorado a hub for companies that are building new forms of decentralized "Web 3.0" platforms and applications.
  3. Exemptions.
    1. Issuer exemption. An offer or sale of a digital token is exempt from section 11-51-301 if:
      1. The offer or sale:
        1. Occurs after the securities commissioner initially promulgates rules to implement this section; and
        2. Complies with all of the requirements of this subsection (3)(a) and those contained in the rules promulgated pursuant to subsection (5) of this section;
      2. The issuer of the digital token files a notice of intent with the securities commissioner as specified in subsection (3)(c) of this section;
      3. The primary purpose of the digital token is a consumptive purpose;
      4. The issuer of the digital token markets the digital token to be used for a consumptive purpose and does not market the digital token to be used for a speculative or investment purpose; and
      5. Either the consumptive purpose of the digital token is available at the time of sale or all of the following conditions are met:
        1. The consumptive purpose of the digital token is available within one hundred eighty days after the time of sale or transfer of the digital token;
        2. The initial buyer is prohibited from reselling or transferring the digital token until the consumptive purpose of the digital token is available; and
        3. The initial buyer provides a knowing and clear acknowledgment that the initial buyer is purchasing the digital token with the primary intent to use the digital token for a consumptive purpose and not for a speculative or investment purpose.
    2. Licensing exemption. A person that engages in the business of effecting or attempting to effect the purchase, sale, or transfer of a digital token is exempt from section 11-51-401 if:
      1. The person:
        1. Effects or attempts to effect the purchase, sale, or transfer after the securities commissioner initially promulgates rules to implement this section; and
        2. Complies with all of the requirements of this subsection (3)(b) and those contained in the rules promulgated pursuant to subsection (5) of this section;
      2. The person files a notice of intent with the securities commissioner as specified in subsection (3)(c) of this section;
      3. The digital token can be used for a consumptive purpose at the time the person effects the purchase, sale, or transfer of the digital token; and
      4. The person takes reasonably prompt action to cease effecting the purchase, sale, or transfer of any digital token that does not conform to the requirements of this subsection (3)(b).
    3. An issuer of a digital token and a person that is engaged in the business of effecting or attempting to effect the purchase, sale, or transfer of a digital token each shall file or cause to be filed a notice of intent with the securities commissioner before the issuer or other person may qualify for an exemption under this section. The securities commissioner shall make a form available for this purpose on its website. If the information contained on the notice required by this subsection (3)(c) becomes inaccurate in any material respect for any reason, the issuer or other person shall file an amendment to the notice in writing with the securities commissioner within thirty days.
    4. Notwithstanding any other provision of this part 3, the securities commissioner may enter into agreements with federal, state, or foreign regulators to allow digital tokens issued, purchased, sold, or transferred in this state to be issued, purchased, sold, or transferred in another jurisdiction and any digital tokens issued, purchased, sold, or transferred in another jurisdiction to be issued, purchased, sold, or transferred in this state.
  4. Definitions. As used in this section:
    1. "Consumptive purpose" means to provide or receive goods, services, or content, including access to goods, services, or content.
    2. "Digital token" means a digital unit that is:
      1. Created:
        1. In response to the verification or collection of a specified number of transactions relating to a digital ledger or database;
        2. By deploying computer code to a blockchain network that allows for the creation of digital tokens or other units; or
        3. Using any combination of the methods specified in subsections (4)(b)(I)(A) and (4)(b)(I)(B) of this section;
      2. Recorded in a digital ledger or database that is chronological, consensus-based, decentralized, and mathematically verified in nature, especially relating to the supply of units and their distribution; and
      3. Capable of being traded or transferred between persons without an intermediary or custodian of value.
  5. Rules. The securities commissioner may adopt rules as necessary to implement this section, to enforce this section, or to provide exemptions or waivers to the requirements of this section.
  6. Safe harbor. No presumption shall arise that an issuer of any digital token or other cryptocurrency, or any person that effects the purchase, sale, or transfer of any digital token or other cryptocurrency, has violated this article 51 solely by reason of the person's participation in the issuance, purchase, sale, or transfer of the digital token or other cryptocurrency if the person does not meet the requirements specified in subsection (3)(a) or (3)(b) of this section. No presumption shall arise that any issuer's securities offering permitted under this article 51 will be integrated with any issuer's digital token offering permitted under this section.

Source: L. 2019: Entire section added, (SB 19-023), ch. 12, p. 49, § 1, effective August 2.

Editor's note: Section 2 of chapter 12 (SB 19-023), Session Laws of Colorado 2019, provides that the act adding this section applies to conduct occurring on or after August 2, 2019.

11-51-309. Discretionary exemptions.

The securities commissioner may, by rule or order and subject to such terms and conditions as prescribed therein, from time to time add any securities to the securities exempted in section 11-51-307 or add any transactions to the transactions exempted in section 11-51-308, if the securities commissioner finds that the application of sections 11-51-301 and 11-51-305 to such securities or transactions is not necessary in the public interest and for the protection of investors.

Source: L. 90: Entire article R&RE, p. 719, § 1, effective July 1.

Editor's note: This section is similar to former § 11-51-113 as it existed prior to 1990.

11-51-310. Denial or revocation of exemptions.

    1. The securities commissioner may, by order, deny or revoke the exemption specified in section 11-51-307 (1)(g) with respect to a specific security or transaction if the securities commissioner finds that such order is necessary in the public interest and for the protection of investors.
    2. The securities commissioner may, by summary order under section 11-51-606 (3)(b), summarily suspend the exemption specified in section 11-51-307 (1)(g) as to a specific security or issuer pending final determination of any proceeding under this subsection (1).
  1. The securities commissioner may, by rule or order, deny or revoke any exemption specified in section 11-51-308 (1)(i), (1)(j), and (1)(p) with respect to a specific security, transaction, issuer, or class of persons if the issuer, any of its predecessors, or any of the issuer's directors, officers, general partners, beneficial owners of ten percent or more of any class of its equity securities, or any of its promoters then presently connected with the issuer in any capacity has been convicted within ten years of any felony in connection with the purchase or sale of any security. Such ten years shall be any ten years prior to any offer or sale of a security for which such exemption would otherwise be available.
  2. No order under subsection (1) or (2) of this section may operate retroactively. No person may be considered to have violated section 11-51-301 or 11-51-305 by reason of any offer or sale effected after the entry of an order under subsection (1) or (2) of this section if that person sustains the burden of proof that the person did not know, and in the exercise of reasonable care could not have known, of the order.

Source: L. 90: Entire article R&RE, p. 720, § 1, effective July 1. L. 94: (1)(b) amended, p. 1839, § 3, effective July 1.

Editor's note: This section is similar to former § 11-51-113 as it existed prior to 1990.

ANNOTATION

Law reviews. For article, "Criminal Prosecutions under the Colorado Securities Act", see 47 U. Colo. L. Rev. 233 (1976). For article, "Securities Registration Considerations in Condominium Developments", see 11 Colo. Law. 2795 (1982).

11-51-311. Coordination of exemptions.

In furtherance of the policy stated in section 11-51-101 (3), the exemptions under sections 11-51-307 to 11-51-309 shall be coordinated with exemptions for securities and transactions under the federal "Securities Act of 1933" so that an offering registered under the federal "Securities Act of 1933" shall be subject to registration by filing under this article in the absence of an exemption under this article and so that an offering exempt from registration under the federal "Securities Act of 1933", other than pursuant to the exemption for intrastate offerings, shall also be exempt from registration under this article. The securities commissioner shall make, amend, and rescind rules in order to effectuate such policy. Nothing in this section shall limit the powers or actions of the securities commissioner to make, amend, and rescind rules with regard to exemptions provided by sections 11-51-307 and 11-51-308 or added by section 11-51-309 but not contained in the federal "Securities Act of 1933" or rules and regulations thereunder.

Source: L. 90: Entire article R&RE, p. 720, § 1, effective July 1.

Editor's note: This section is similar to former § 11-51-113 as it existed prior to 1990.

Cross references: For the "Securities Act of 1933", see Pub.L. 73-22, codified at 15 U.S.C. sec. 77a et seq.

PART 4 LICENSING AND REGULATION OF BROKER-DEALERS AND SALES REPRESENTATIVES

11-51-401. Licensing and notice filing requirements.

  1. A person shall not transact business in this state as a broker-dealer or sales representative unless licensed or exempt from licensing under section 11-51-402.

    (1.5) A person with a place of business in this state shall not transact business in this state as an investment adviser or investment adviser representative unless such person is licensed as such or exempt from licensing under section 11-51-402.

    (1.6) A federal covered adviser either with a place of business in this state or who employs or otherwise engages an individual with a place of business in this state to act as an investment adviser representative shall not transact business in this state as a federal covered adviser unless such adviser has filed with the securities commissioner the notice and fee required in sections 11-51-403 and 11-51-404.

  2. Neither a broker-dealer nor an issuer shall employ or otherwise engage an individual to act as a sales representative in this state unless the sales representative is licensed or exempt from licensing under section 11-51-402.

    (2.5) An investment adviser shall not employ or otherwise engage any individual with a place of business in this state to act as an investment adviser representative in this state unless such individual is licensed in accordance with section 11-51-403 or is exempt from licensing under section 11-51-402 (1).

  3. No broker-dealer, investment adviser, or issuer shall employ or otherwise engage a person to participate in any activity in this state contrary to an order by the securities commissioner applicable to that person under section 11-51-410. A broker-dealer, investment adviser, or issuer does not violate this subsection (3) if the broker-dealer, investment adviser, or issuer sustains the burden of proof that it did not know and in the exercise of reasonable care could not have known of the order. Upon request from a broker-dealer, investment adviser, or issuer and for good cause shown, the securities commissioner may waive the prohibition of this subsection (3) with respect to a person subject to an order under section 11-51-410.
  4. No person shall act as an investment adviser for a local government investment pool trust fund under article 75 of title 24, C.R.S., unless the person has first notified the securities commissioner by filing the form prescribed by the securities commissioner.

Source: L. 90: Entire article R&RE, p. 720, § 1, effective July 1. L. 98: (1.5), (1.6), (2.5), and (4) added and (3) amended, p. 550, § 4, effective January 1, 1999.

Editor's note: This section is similar to former § 11-51-105 as it existed prior to 1990.

Cross references: For provisions concerning the use of the term "transacting business in this state" in subsections (1.5), (1.6), and (2.5) of this section, see § 11-51-102 (8); for the applicability of subsections (1) and (2), see § 11-51-102 (1) and (2).

ANNOTATION

Law reviews. For article, "Dodd Frank Act Expands Federal and State Regulation of Investment Advisers", see 40 Colo. Law. 15 (Feb. 2011).

Approval or acceptance of the sale of a security is not a necessary element of whether a person is acting as a sales representative. A person who facilitated all aspects of the investment other than the formal acceptance of the agreement is acting as a sales representative. Thus, the person is required to have a license. Black Diamond Fund, LLLP v. Joseph, 211 P.3d 727 (Colo. App. 2009).

Hearing panel's conclusion that a broker-dealer may be construed as engaging in the business of buying or selling securities by authorizing and employing a sales representative on his or her behalf is a reasonable interpretation of section. Where respondents hired an employee to attempt to effectuate purchases and sales of interests in the joint venture, gave him a call list, and authorized him to contact potential investors to solicit their investment and qualify them as venturers, employee was a sales representative within meaning of the section. Joseph v. Mieka Corp., 2012 COA 84 , 282 P.3d 509.

11-51-402. Exempt broker-dealers, sales representatives - sanctions - exempt investment advisers and investment adviser representatives.

  1. The following broker-dealers are exempt from the license requirement of section 11-51-401 (1):
    1. A broker-dealer who is registered as a broker-dealer under the federal "Securities Exchange Act of 1934" and has no place of business in this state if the business transacted in this state as a broker-dealer is exclusively with the following:
      1. Issuers in transactions involving their own securities;
      2. Other broker-dealers licensed or exempt from licensing under this article, except when the broker-dealer is acting as a clearing broker-dealer for such other broker-dealers;
      3. Financial or institutional investors;
      4. Individuals who are existing customers of the broker-dealer and whose principal places of residence are not in this state;
      5. During any twelve consecutive months, not more than five persons in this state, excluding persons described in subparagraphs (I) to (IV) of this paragraph (a);
    2. Other broker-dealers the securities commissioner by rule or order exempts; and
    3. An online intermediary operating pursuant to section 11-51-308.5.
  2. The following sales representatives are exempt from the license requirement of section 11-51-401 (1):
    1. A sales representative employed or otherwise engaged by a broker-dealer exempt under subsection (1) of this section;
    2. A sales representative employed or otherwise engaged by an issuer in effecting transactions only in securities exempted by section 11-51-307 (1)(a) to (1)(d) or (1)(j);
    3. A sales representative employed by an issuer in effecting transactions only with employees, partners, officers, or directors of the issuer or of a parent or subsidiaries of the issuer, if no commission or other similar compensation is paid or given directly or indirectly to the sales representative for soliciting an employee, partner, officer, or director in this state; and
    4. Other sales representatives the securities commissioner by rule or order exempts.
  3. Any real estate broker or salesperson licensed pursuant to part 2 of article 10 of title 12 who is trading only in securities comprised of notes, bonds, or evidences of indebtedness secured by mortgages or deeds of trust upon real estate, where the broker or salesperson acts as the agent for the buyer or seller of the real estate securing the note, bond, or evidence of indebtedness being traded and is neither the issuer nor affiliated with or under the direct or indirect control of the issuer or an affiliate of the issuer of the note, bond, or evidence of indebtedness, is exempt from the license requirement of section 11-51-401 (1).
    1. The securities commissioner may by order revoke, suspend, or impose conditions upon exemptions available pursuant to subparagraph (III) of paragraph (a) of subsection (1) of this section and paragraph (a) of subsection (2) of this section if the securities commissioner finds that a broker-dealer or sales representative who has an exemption pursuant to either of said sections offered or sold, other than in an unsolicited transaction, to a public entity in the state of Colorado a financial instrument that such broker-dealer or sales representative knew or should have known does not qualify for sale to the public entity pursuant to section 24-75-601.1, C.R.S., and that such action by the securities commissioner is in the public interest.
    2. Any proceeding concerning an order made pursuant to this subsection (4) shall be conducted as a proceeding under section 11-51-606 (1), (2), (4), and (5).
  4. The following investment advisers with no place of business in this state are exempt from the license requirement of section 11-51-401 (1.5):
    1. An investment adviser who:
      1. Is exempt from registration as an investment adviser pursuant to section 203 (b) of the federal "Investment Advisers Act of 1940";
      2. Has only clients in this state that are: Other investment advisers; federal covered advisers; broker-dealers; depository institutions; insurance companies; employee benefit plans with assets of not less than one million dollars; or other institutional investors other than any local government investment pool trust fund under article 75 of title 24, C.R.S., as are designated by rule or order of the securities commissioner; or
      3. During the preceding twelve-month period, has had not more than five clients other than those specified in subparagraph (II) of this paragraph (a).
    2. The commissioner may by rule or order exempt other investment advisers from the license requirement of section 11-51-401 (1.5).
  5. Investment adviser representatives employed by or otherwise associated with an investment adviser exempt under subsection (5) of this section are exempt from the license requirement of section 11-51-401 (1.5).

Source: L. 90: Entire article R&RE, p. 721, § 1, effective July 1. L. 95: (4) added, p. 773, § 2, effective May 24. L. 98: (5) and (6) added, p. 550, § 5, effective January 1, 1999. L. 99: (6) amended, p. 619, § 10, effective August 4. L. 2003: (3) amended, p. 1988, § 23, effective May 22. L. 2015: IP(1), (1)(a)(V), and (1)(b) amended and (1)(c) added, (HB 15-1246), ch. 98, p. 287, § 3, effective August 5. L. 2019: (3) amended, (HB 19-1172), ch. 136, p. 1659, § 59, effective October 1.

Editor's note: This section is similar to former § 11-51-105 as it existed prior to 1990.

Cross references: For the "Securities Exchange Act of 1934", see Pub.L. 73-291, codified at 15 U.S.C. sec. 78a et seq.; for the "Investment Advisers Act of 1940", see Pub.L. 76-768, 54 Stat. 847 (1940).

ANNOTATION

Law reviews. For article, "Dodd Frank Act Expands Federal and State Regulation of Investment Advisers", see 40 Colo. Law. 15 (Feb. 2011).

11-51-403. Application for license - notice filing requirements.

  1. An applicant for a license as a broker-dealer, sales representative, investment adviser, or investment adviser representative shall file with the securities commissioner or with the securities commissioner's designee an application for a license and the consent to service of process required by section 11-51-706. The application shall contain the information and be in the form the securities commissioner requires by rule. If the information contained in an application is inaccurate or incomplete in any material respect when the application is filed or becomes inaccurate or incomplete in any material respect as a result of any subsequent event, the applicant shall promptly file an amendment to the application to cure the inaccuracy or omission. The securities commissioner may require an applicant to submit additional information that is material to an understanding of information about the applicant available to the securities commissioner in the application or otherwise, and an application shall be incomplete until all additional information required by the securities commissioner has been submitted.
  2. The application requirement of subsection (1) of this section for broker-dealers and sales representatives is satisfied by an applicant who has filed and maintains complete and current registration information with the securities and exchange commission, in the case of a broker-dealer, or a self-regulatory organization, in the case of a sales representative, if that registration information and the consent to service of process required by section 11-51-706 are provided to the securities commissioner through the central registration depository. Any additional information the securities commissioner may require from such an applicant pursuant to subsection (1) of this section must be material to an understanding of information about the broker-dealer or sales representative that is provided to the securities commissioner through the central registration depository.

    (2.5) The application requirement of subsection (1) of this section for an investment adviser and an investment adviser representative is satisfied by an applicant who has filed and maintains complete and current registration information with the investment adviser registration depository if that registration information and the consent to service of process required by section 11-51-706 are provided to the securities commissioner through the investment adviser registration depository. Any additional information the securities commissioner may require from such an applicant pursuant to subsection (1) of this section must be material to an understanding of information about the investment adviser or investment adviser representative that is provided to the securities commissioner through the investment adviser registration depository.

    1. A federal covered adviser who, during any calendar year, either has a place of business in this state or employs or engages an investment adviser representative with a place of business in this state shall file with the securities commissioner annually a consent to service of process and such documents as are filed by such adviser with the securities and exchange commission that the commissioner may require by rule or order.
    2. The notice filing requirement described in paragraph (a) of this subsection (3) does not apply to any federal covered adviser who, during such calendar year, neither has a place of business in this state nor employs nor engages an investment adviser representative with a place of business in this state.
    3. A notice filing under this section shall be effective from its receipt by the securities commissioner until December 31 of each year. Thereafter, it may be renewed annually until the following December 31 by filing with the securities commissioner a copy of such documents as are required pursuant to paragraph (a) of this subsection (3) and payment of a fee pursuant to section 11-51-404.
  3. Any person required to pay a fee under this section may transmit through any designee of the securities commissioner an