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GENERAL BANKING ACT (R.A. 8791)
The General Banking Law applies PRIMARILY to Universal and Commercial Banks and SUPPLETORILY to Thrift Banks, Rural Banks, Cooperative Banks andIslamic Banks.
PURPOSE AND SCOPE OF APPLICATION (Section 2)
Section 2. Declaration Of Policy. - The State recognizes the vital role of banks in providing an environment conducive to the sustained development of the national economy and the fiduciary nature of banking that requires high standards of integrity and performance. In furtherance thereof, the State shall promote and maintain a stable and efficient banking and financial system that is globally competitive, dynamic and responsive to the demands of a developing economy.
1. The State recognizes the vital role of banks in providing an environment conducive to the sustained development of the National Economy. - The bank plays either a passive or an active role: Passive as a depositary of your millions. Active it conducts not only banking and lending activities but more importantly it helps in the conduct of day to day transactions of several businesses. Banks are considered as trusted partners of business entities. - Banks play a vital role in the economic life of the country and for the sustained development of the country. Imagine if there are no banks, how would we facilitate our transactions as individuals, as business entities and as a country in general?
2. The State also recognizes the fiduciary nature of banks. - Banks are impressed with public interest. - Because of the said fiduciarynature, banks are expected to exercise the highest standards of integrity and performance as compared to other entities. - The bank must not only exercise high standards of integrity and performance, it must also ensure that its employees do likewise, because this is the only way to ensure that the bank will comply with its fiduciary duty.
The standard of diligence required of banks (i.e. HIGHEST STANDARDS OF INTEGRITY AND PERFORMANCE) is exemplified in the following cases:
PCI BANK V. COURT OF APPEALSFiduciary Obligation of Bank Employees
Banks are liable for the wrongful and tortuous acts of their employees so long as those acts were done in the course of the latters employment. The banks liability is not merely vicarious but PRIMARY, and so, the defense of due diligence in the selection and supervision of its employees is NOT A VALID DEFENSE.
CAST:
Citibank Drawee Bank PCI Bank Collecting Bank; Authorized Agent Bank Commissioner of Internal Revenue Payee
FACTS:
Ford was assessed of percentage taxes. It drew an account with Citibank, the drawee bank, and deposited the check to PCI Bank, the authorized agent bank[In taxation, we are allowed pay our taxes directly to authorized agent banks (AABs). In this case, the AAB is PCI Bank.]. Ford was surprised when it received a letter of demand for the payment of the taxes. Apparently, the CIR did not receive any payment at all. And so Ford was compelled to pay the CIR. An investigation was conducted and it was found out that there was a syndicate involving employees of Ford, PCI Bank and Citibank. There was also an employee of BIR who made it possible for the issuance of spurious receipts.
Who should be held liable?
SC: Both PCI Bank and Citibank they are equally at fault.
PCI Bank imputed fault to Ford because according to PCI Bank, its (Fords) employee Wilfredo Rivera, is involved in the syndicate. BIRs defense was that it was Fords fault because it failed to exercise supervision over its own employees because it authorized its employee to make the call.
SC: it was not the fault of Ford because it was not part of the ordinary course of its business and the Court determined that Rivera acted on his own. Ultimately, the Court decided against PCI Bank because as a bank, PCI Bank is expected to exercise the highest degree of diligence and should not have allowed itself to easily fall for the machinations of the Ford employee Special Commercial Laws - Finals EH 403 [2011 2012]
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without checking first with Ford. This is one of the many lapses of PCI Bank, relying heavily on the mere call of Rivera without verifying the authority of that person.
PCI Bank interposed the defense that although its employees are part of the syndicate, it did not authorize such persons to do so.
SC: it does not matter whether or not such persons who worked in the bank are authorized. So long as such persons work in the bank, the bank is mandated to exercise due diligence. So long as they work for such bank, they could be held liable.
What about the defense of PCI Bank that it exercised due diligence in the selection and supervision, was it a valid defense?
NO. Such defense is not available to banks because the liability of the banks is not vicarious but PRIMARY. Even if PCI Bank was also a victim of the operations of the syndicate, such is also not a valid defense because banks are liable for the wrongful and tortuous acts of its employees.
Citibank interposed a defense that it cannot be held liable because, PCI Bank, as a collecting bank, makes certain warranties when it indorses the check for clearing. At the back of the check, it says all indorsements are guaranteed. It warrants that the said signatures appearing in the check are genuine.
SC: it still failed to exercise due diligence because Citibank failed to notice that at the back of the check, there were no verifications/ initials. And so, Citibank was not able to discover that those were not the same checks that were issued by Ford, as the checks presented were those that have been replaced by the syndicate. Had Citibank exercised the highest degree of care and supervision, Citibank would have found out that the checks did not contain initials.
Ford was not also considered entirely blameless.The penalty of Ford was a reduced rate of interest andamount of damages. Instead of 12%, it was reduced to 6%. Ford failed to detect the fraud. It failed to examine its passbooks, statements of accounts and checks. But mainly, the liability falls on the drawee bank, Citibank, and the collecting bank, PCI Bank, for failing to exercise that highest degree of care expected of Banks.
PRUDENTIAL BANK V. CA Duty on Bank Accounts of Clients
In every case, the depositor expects the bank to treat his account with utmost fidelity, whether such account consists only of a few hundred pesos or of millions. The bank must record every single transaction accurately, down to the last centavo, and as promptly as possible.
FACTS:
This case arose from a dispute between Prudential Bank and private respondent, Francisco Valenzuela. Valenzuela opened a savings account with Prudential Bank. It availed of the Banks service of automatic transfer of funds from his savings account to his current accounts. What happened was when respondent deposited a check in his saving account, it did not reflect immediately in his account. The check was deposited on June 1. However, the bank failed to have it reflected in his account. It was only reflected on June 24. It was posted 23 days after the check was deposited.
After depositing such check, Valenzuela issued a check against Legaspi in payment of jewelries. Legaspi subsequently endorsed the said check to Lhuiller. Lhuiller went to his bank and there he found out that the check was dishonored for insufficiency of funds. After the Valenzuela knew about it, he checked with the bank and inquired why his check was dishonored. It was there that he found out that it was only after 23 days that the check was posted. The error was subsequently corrected by the bank. It apologized to Valenzuela. But this was not the first time that it happened. So, he instituted a suit against the bank.
SC:The Court said that the bank is liable because, even if malice and bad faith were not proven, the banking business is impressed with public interest. It is expected to exercise the highest degree of diligence regardless of the amount deposited.
The Court said that it is not enough for the bank to say sorry because in the first place that mistake should not have been committed had the bank that degree of care expected of them. The misposting of checks shows on the part of the bank the lack of care and supervision. Since the bank is an entity impressed with public interest, the accounts of the depositors should be treated with meticulous care.
Is Valenzuela here entitled to moral damages? He is entitled to moral damages for sleepless nights, anxiety etc.
What about exemplary damages? YES. This kind of award of damages is to set an example. The Court in effect is saying that to all banks concerned, if you fail to exercise the degree of care, you will be held liable.
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BPI V. CA
ISSUE:
Who is at fault here? Is it the depositor who signed a blank withdrawal slip or is it the bank who allowed the withdrawal?
The contention of the bank was that the depositor was partly at fault because he issued a blank withdrawal slip without even indicating the amount and the name of the payee.
SC: The Bank.
To be able to withdraw from the savings account deposit under the Philippine foreign currency deposit system, two requisites must be presented to petitioner bank by the person withdrawing an amount: (a) a duly filled-up withdrawal slip, and (b) the depositor's passbook.In this case, the bank allowed the withdrawal even without the presentation of the passbook. If it is made thru a representative, there should be an attachment of the authority given. Normally, its in the back of the form. Usually, if you do not withdraw yourself, you indicate who the authorized person is. Nevertheless, it must always be accompanied by a passbook.
There is another reason, the main reason actually, why we can say that the bank here is really at fault or negligent. That it did not exercise the required diligence, the highest degree of care. The bank allowed the withdrawal of $2,500 even before the check was cleared. It is SOP for most banks that it will not allow withdrawals unless the check has already cleared. In this case, when the bank allowed the withdrawal, the balance was only 750. But here, the bank allowed the $2,500 withdrawal without waiting for the check to be cleared. Had the bank waited for the check to be cleared, then, this thing would not have happened.
So these are the lapses of the bank which indicated that the bank failed to exercise that degree of care. It failed to exerciseordinary diligence, much less the highest degree of care.
Was the depositors signing of a blank withdrawal slip the proximate cause?
While it is true that private respondent's having signed a blank withdrawal slip set in motion the events that resulted in the withdrawal and encashment of the counterfeit check, the negligence of the banks personnel in allowing the withdrawal of $2,500 without the check not having been cleared yet was the proximate cause of the loss.
SIMEX INTL (MANILA) V. CA
ISSUE:
WON the TRB is liable.
The defense was there was no malice, bad faith on the part of Traders Royal Bank. It was just an honest mistake.
SC:The SC held that the TRB is liable for moral damages and exemplary damages.
As to moral damages: although there was no evident bad faith on the part of the bank, it failed to give the funds when Simex Intl would have withdrawn the check. It failed to explain why such checks bounced. While corporations do not have feelings like natural persons, it is still entitled to moral damagesbecause the corporation has a good reputation to protect.
As to the exemplary damages: it is to set an example to the public.
REYES V. CAHigh Degree of Diligence Does Not Cover Transactions Outside of Bank Deposits; There must be a Depositor-Bank Relationship (Fiduciary Relationship)
FACTS:
The Reyeses wanted to purchase a foreign exchange demand draft to be used as payment for the registration fee in the conference in Australia. At first it was denied because FEBTC did not have an Australian dollar account in any bank in Sydney. They asked for another way. The arrangement would be that the foreign bank in Australia would honor the demand draft and the foreign bank in Australia will debit the account of FEBTC here in the Philippines. So, that was the arrangement. In that way, the demand drafts presented by the spouses in Australia would be honored. But what happened was, when the Reyeses were in Australia and tried to register in this conference, they were surprised that the foreign exchange demand drafts were dishonored. The reason given by the bank was there was no such account. So after the dishonor, the Reyeses informed FEBTC inquiring why the demand drafts were dishonored. They said that they were embarrassed. The registration table had so many delegates.
FEBTC sent again a notice or reconfirmation to Westpac New York. Because FEBTC thought at first that the reason for the dishonor was that there was no account but FEBTC learnedthat its account was already debited by Westpac Bank New York. So Special Commercial Laws - Finals EH 403 [2011 2012]
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meaning, it has been deducted already and that the demand draft should have been honored. Again, FEBTC sent a reconfirmation to Westpac New York of its authority to honor the demand draft. And that Westpac New Yorks is entitled to reimbursement. But then again, despite the reconfirmation and recommunication done by FEBTC to Westpac New York, the bank in Sydney, the demand draft was still dishonored. The reason there was an erroneous decoding of the cable message. Instead of Number 7, the decoder in Sydney read it as Number 1. 7 refers to demand drafts and 1 refers to letters of credit. But there was no application of letters of credit. That is why the Bank in Sydney dishonored the demand draft. So, what happened? The Reyeses went back to the Philippines and sued FEBTC due to the dishonor of the foreign exchange draft because according to them, they were exposed to unnecessary shock, social humiliation, deep mental anguish in a foreign country in the presence of international audience.
ISSUE:
WON FEBTC is liable under the circumstances.
SC: FEBTC is not liable because of the nature of the transaction.
What is the relationship of the bank with respect to the Reyeses?
In this case, the Court said that the relationship is NOT fiduciary in nature meaning the sale of draft is just an ordinary commercial transaction involving a seller and a buyer. The seller here is the bank and the Reyeses are the buyers of the demand draft. So, there is no relationship of bank and depositor. There is no depositor and depositary. In that case, the relationship is not fiduciary. Thus, if the relationship is not fiduciary, the bank is not expected to exercise the highest degree of care. The exercise of diligence of a good father of a family is enough. In this case, such diligence has already been exercised by FEBTC as shown by them reconfirming the Westpac Bank by sending them a letter.
Do you agree with the SCs ruling? So, are we saying that the highest degree of care is only expected in fiduciary transactions? Or should it apply to all transactions of the bank?
Atty. Larrobis: We should not distinguish. The law says that banks play a vital role. We should not distinguish that the transactions of banks are limited only to the depositor and depositary. FEBTC should have done more. Its difficult if you make a distinction because after all if you deal with the bank, if the bank commits an error or mistake, it will undermine the stability and confidence of the people in the banks. But that is the ruling of the court.
So: - If bank is acting in a fiduciary capacity: HIGHEST DEGREE OF CARE - Ordinary transactions only: ORDINARY DILIGENCE
What about when you apply for a loan from the bank? What is the nature of the transaction? Is that fiduciary in nature? Or if you apply a letter of credit? If you go with the ruling of this court you have to distinguish whether it is fiduciary or not. When can we say then that the transaction of the bank is fiduciary or not?
In one case, the case of DBP, the Court said that in mortgages, as mortgagees, the bank should also be a mortgagee in good faith. So meaning, the bank is also expected to exercise the highest degree of care. It is saying that it is still fiduciary in nature.
DBP V. CA Degree of Diligence Required of Banks as Lenders-Mortgagers
The principle here is that the bank as a mortgagee, must be a mortgagee in good faith. So the Court is saying that before the bank accepts the property used as collateral, it must first conduct an examination. In this case, what was mortgaged was a parcel of land. It turned out that the parcel of land was already owned and possessed by another which DBP failed to discover. DBP accepted the collateral even without conducting an inspection. Normally, the bank conducts inspection. Aside from examining the title, you inspect the place. In this case, the bank failed to do that. The Court said that it is not a mortgagee in good faith.
URSAL V. CA Dealings with Registered Land
Banks cannot merely rely on certificates of title in ascertaining the status of mortgaged properties. As their business is impressed with public interest, they are expected to exercise more care and prudence in their dealings than private individuals. Indeed, the rule that persons dealing with registered land can rely solely on the certificate of title does not apply to banks.
BANKS COVERED (Section 3)
Banks refer to entities engaged in the lending of funds obtained in the form of deposits, and are classified as follows: Special Commercial Laws - Finals EH 403 [2011 2012]
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1. Universal Banks; 2. Commercial Banks; 3. Thrift Banks (3): - Savings and Mortgage Banks - Stock Savings and Loan Associations - Private Development Banks 4. Rural Banks (as defined in Rural bank Act); - Basically, rural banks cater to those in the countryside, in the rural areas. - Their primary function is to extend loans or credits to farmers, fisher folks etc. 5. Cooperative Banks (as defined in Cooperative Code); - These banks cater to cooperatives. They extend loans and assistance to cooperatives. 6. Islamic Banks (as defined in Charter of Al Amanah Islamic Investment Bank of the Philippines). - These banks cater to our Muslim brothers and sisters. 7. Other classifications of banks as determined by the Monetary Board of the BSP.
Under the General Banking Law, you are a bankif you lend funds and these funds are obtained from the public by way of deposits. That definition under the law describes what classical or core banking is: deposit taking and lending of funds. But in reality, banks do more than deposit taking and lending of funds. As will be discussed later under Section 29 on the operations of commercial banks and Section 53 on other banking services, it is more than just deposit taking and lending of funds.
Note that aside from deposit taking and lending of funds, universal banks and commercial banks are also allowed to have investments in certain enterprises. In case of universal banks, it is allowed to invest in allied and non-allied enterprises but in case of commercial banks, only in allied enterprises. Also a universal bank can also act as an investment house.
AUTHORITY OF BSP (Sections 4-7)
Section 4. Supervisory Powers. The operations and activities of banks shall be subject to supervision of the Bangko Sentral. "Supervision" shall include the following: 4.1. The issuance of rules of, conduct or the establishment standards of operation for uniform application to all institutions or functions covered, taking into consideration the distinctive character of the operations of institutions and the substantive similarities of specific functions to which such rules, modes or standards are to be applied; 4.2 The conduct of examination to determine compliance with laws and regulations if the circumstances so warrant as determined by the Monetary Board; 4.3 Overseeing to ascertain that laws and regulations are complied with; 4.4 Regular investigation which shall not be oftener than once a year from the last date of examination to determine whether an institution is conducting its business on a safe or sound basis: Provided, That the deficiencies/irregularities found by or discovered by an audit shall be immediately addressed; 4.5 Inquiring into the solvency and liquidity of the institution (2-D); or 4.6 Enforcing prompt corrective action. (n)
The Bangko Sentral shall also have supervision over the operations of and exercise regulatory powers over quasi-banks, trust entities and other financial institutions which under special laws are subject to Bangko Sentral supervision. (2-Ca)
For the purposes of this Act, "quasi-banks" shall refer to entities engaged in the borrowing of funds through the issuance, endorsement or assignment with recourse or acceptance of deposit substitutes as defined in Section 95 of Republic Act No. 7653 (hereafter the "New Central Bank Act") for purposes of re-lending or purchasing of receivables and other obligations. (2-Da)
We have discussed the authority of the BSP when we discussed the New Central Bank Act.
This authority of the BSP is reiterated in the General Banking Law.
BSP has supervisory and regulatory authority over banks. - The BSP issues rules and regulations. - It also conducts examinations and REGULAR INVESTIGATIONS over banks, not more than once a year. - By way of exception, the BSP can examine a bank more than once a year if by vote of 5 of the members of the Monetary Board. Just like when there are cases of reported irregularities, it can conduct SPECIAL EXAMINATIONS.
BSP also has authority over quasi-banks, which are still considered financial institutions. - What are quasi-banks? Special Commercial Laws - Finals EH 403 [2011 2012]
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o Quasi-banks are entities engaged in the borrowing of funds through the issuance, endorsement or assignment with recourse or acceptance of deposit substitutes. o They obtain funds not from the regular deposits (savings, time deposits, etc.) but from deposit substitutes (debt instruments). o So they issue debt instruments, like promissory notes, bankers acceptance, demand drafts etc. o In effect, the bank is the debtor and the public, the creditor. o These deposit substitutes have higher interest compared to savings or time deposits etc. The higher the return, the higher the risk. o If performed by a bank, you dont call it quasi-banking since theres nothing quasi about it. You call it deposit substitute operations. o It is appropriate if you apply it to a non-bankentity which is engaged into these kinds of activities.
We also have discussed under the New Central Bank Act that the BSP, through the Monetary Board, can place the bank under conservatorship, receivership or liquidation. It falls under their power to inquire on the solvency and liquidity of the institution.
Section 5. Policy Direction; Ratios, Ceilings and Limitations. - The Bangko Sentral shall provide policy direction in the areas of money, banking and credit. (n)
For this purpose, the Monetary Board may prescribe ratios, ceilings, limitations, or other forms of regulation on the different types of accounts and practices of banks and quasi-banks which shall, to the extent feasible, conform to internationally accepted standards, including of the Bank for International Settlements (BIS). The Monetary Board may exempt particular categories of transactions from such ratios, ceilings. and limitations, but not limited to exceptional cases or to enable a bank or quasi-bank under rehabilitation or during a merger or consolidation to continue in business, with safety to its creditors, depositors and the general public. (2-Ca)
Examples of those ratios, ceilings or limitations: - Reserve requirement Banks must maintain a certain reserve requirement vis--vis its deposit liabilities. If you fall short of you reserve requirement, you are subject to penalties. - Single borrowers limit Banks cannot lend more than a certain percentage of its net worth to a single borrower. - And many others. All these to be discussed later.
PURPOSE: To ensure that the bank will conduct its operations in a safe and sound manner
Section 6. Authority to Engage in Banking and Quasi-Banking Functions. - No person or entity shall engage in banking operations or quasi-banking functions without authority from the Bangko Sentral: .Provided, however, That an entity authorized by the Bangko Sentral to perform universal or commercial banking functions shall likewise have the authority to engage in quasi-banking functions. The determination of whether a person or entity is performing banking or quasi- banking functions without Bangko Sentral authority shall be decided by the Monetary Board. To resolve such issue, the Monetary Board may; through the appropriate supervising and examining department of the Bangko Sentral, examine, inspect or investigate the books and records of such person or entity. Upon issuance of this authority, such person or entity may commence to engage in banking operations or quasi-banking function and shall continue to do so unless such authority is sooner surrendered, revoked, suspended or annulled by the Bangko Sentral in accordance with this Act or other special laws.
The department head and the examiners of the appropriate supervising and examining department are hereby authorized to administer oaths to any such person, employee, officer, or director of any such entity and to compel the presentation or production of such books, documents, papers or records that are reasonably necessary to ascertain the facts relative to the true functions and operations of such person or entity. Failure or refusal to comply with the required presentation or production of such books, documents, papers or records within a reasonable time shall subject the persons responsible therefore to the penal sanctions provided under the New Central Bank Act.
Persons or entities found to be performing banking or quasi-banking functions without authority from the Bangko Sentral shall be subject to appropriate sanctions under the New Central Bank Act and other applicable laws. (4a)
No person or entity can engage in banking operations or quasi-banking functions without authority (banking franchise) from the BSP.
REPUBLIC OF THE PHILIPPINES V. SECURITY CREDIT AND ACCEPTANCE CORP (19 SCRA 68)
This entity does not have a banking franchise but it obtained funds from the public by accepting deposits. The funds obtained from the public areloaned out to its members with interest.
ISSUE: WON the activity of the corporation is considered as banking? If yes, a banking license would be necessary. Special Commercial Laws - Finals EH 403 [2011 2012]
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SC: The activity is banking. It is classical banking actually, obtaining funds from the public and lend it out to the public. Since you are into banking activities without the necessary banking franchise, then, you can be held liable. Under the law, no person or entity can engage in banking operations or quasi-banking functions without authority (banking franchise) from the BSP.
What are the sanctions for entities and corporations engaging into banking without the necessary banking franchise? - It will be subjected to penalties and a quo warranto proceeding can be filed by the Solicitor General. - A quo warranto proceeding is a special civil action to question the authority, in this case, to engage into banking. - If you do not have a banking franchise, the court can order the dissolution.
Further, take note, that in Section 64, if you are not a bank, you are not allowed to use the words as part of your corporate name, bank, banking, trust company, banker, quasi-banking etc. The reason of course is you are not registered to engage into these activities.
The word quasi-banking is included because the same is mostly engaged in by banks. There are entities, however, which are not banks but are engaged in quasi-banking functions. That is why I said that the term is inappropriate. Some financial institutions perform quasi-banking functions because they issue debt instruments, they issue promissory notes. But they must have an authority from the Central Bank.
Section 7. Examination by the Bangko Sentral. - The Bangko Sentral shall, when examining a bank, have the authority to examine an enterprise which is wholly or majority-owned or controlled by the bank. (2-Ba)
What is the extent of the authority? - It can examine not only the banks but even, as we have discussed before under the New Central Bank Act, the subsidiaries and affiliates of the bank. - But the only difference, under the New Central Bank Act, it has limited authority to examine to examine the subsidiary and affiliate of a bank provided that such subsidiary and affiliate is engaged in allied enterprise. - But here, under Sec. 7 of the General Banking Law, the power of the BSP is much broader in the sense that it does not distinguish whether the subsidiary or affiliate is into allied enterprise or not. The fact that you are a subsidiary or majority owned by the bank, you can be subject to examination by the BSP. - The only requirement for the examination of the subsidiary or the affiliate is that must be in connection with the examination of the bank, it must be in the course of the examination of the bank (controlling bank). The BSP could not directly examine the subsidiary.
CAPITAL STRUCTURE OF BANKS AND QUASI-BANKS (Sections 8-19)
Section 8. Organization. - The Monetary Board may authorize the organization of a bank or quasi-bank subject to the following conditions: 8.1 That the entity is a stock corporation (7); 8.2 That its funds are obtained from the public, which shall mean twenty (20) or more persons (2-Da); and 8.3 That the minimum capital requirements prescribed by the Monetary Board for each category of banks are satisfied. (n)
No new commercial bank shall be established within three (3) years from the effectivity of this Act. In the exercise of the authority granted herein, the Monetary Board shall take into consideration their capability in terms of their financial resources and technical expertise and integrity. The bank licensing process shall incorporate an assessment of the bank's ownership structure, directors and senior management, its operating plan and internal controls as well as its projected financial condition and capital base.
Can a partnership or sole proprietorship organize a bank? - No, it cannot because of the conditions provided for under the law.
What are those conditions? (3)
1. The entity is a stock corporation - The bank cannot be a partnership or sole proprietorship. There reason is the capital requirement for banks. - The law requires that the bank must be a stock corporation. There is no non-stock, non-profit bank. - It must also issue stocks with par value. It is not authorized to issue stocks with no par value. o Under the Corporation Code, there are entities which must issue par value shares and one of them is the bank. Others include insurance companies, public utilities etc. If you look at these corporations, these are entities vested with public interest. Why does it have to be with par value? Par values have fixed value. Special Commercial Laws - Finals EH 403 [2011 2012]
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2. Its funds are obtained from the public, which shall mean twenty (20) or more persons - The shares of stock must come from the public, meaning that the subscribers to the shares of stock of the bank must be at least 20. - In effect, a bank cannot be a close corporation, or a family held or closely held corporation. - So, if it is a close corporation, it will defeat the purpose of requiring banks to be a stock corporation. If it is a close corporation, the stockholders can be at the same time directors of the corporation. - Take note that when we say 20 or more subscribers, it does not mean that all of the 20 must be incorporators. Because then, you will violate the limitation under the Corporation Code that the incorporators that it must be a minimum of 5 and maximum of 15. So it means that you can have 15 incorporators and the remaining 5 are the original subscribers.
3. That the minimum capital requirements prescribed by the Monetary Board for each category of banks are satisfied. - It must comply with the minimum capital requirement, to be prescribed by the Monetary Board. - As a GENERAL RULE, if you put up a corporation (not a bank), there is no minimum capital requirement which is required by the Corporation Code. The only minimum is your paid-up capital stock or must be at least P5,000. The SEC does not prescribe. But in case of banks, as the EXCEPTION, there is a minimum capitalization requirement. - Based on a circular (As of 2000. I think this has already been amended): o universal banks, you need at least 4.9 billion o commercial banks, 2.4 billion o rural banks, 26 million o thrift banks, 325 million - The reason why the law provides for a minimum capital requirement for banks for the protection of the public. It has the same principle with that of the Trust Fund Doctrine. The funds held by the corporation are for the protection of the creditors. So, they are saying that this requirement is to reduce the moral hazards by exposing the money of the bank owners or the stockholders at risk. If your capital is big, mismanagement would be less likely. Its like you have an insurable interest. If you have an insurable interest, you are trying to make sure that you would take care of the property. Or in this case, you would take care of the business because a large amount of capital is at risk. You make sure that you do not mismanage. Again this is the trust fund doctrine. - Take note that the SEC will not register the corporation, intending to operate as a bank, without the certificate of authority from the Central Bank.
Section 9. Issuance of Stocks. - The Monetary Board may prescribe rules and regulations on the types of stock a bank may issue, including the terms thereof and rights appurtenant thereto to determine compliance with laws and regulations governing capital and equity structure of banks; Provided, That banks shall issue par value stocks only.
Section 10. Treasury Stocks. - No bank shall purchase or acquire shares of its own capital stock or accept its own shares as a security for a loan, except when authorized by the Monetary Board: Provided, That in every case the stock so purchased or acquired shall, within six (6) months from the time of its purchase or acquisition, be sold or disposed of at a public or private sale. (24a)
Can a bank acquire its own shares or accept shares as security for a loan? - NO. - Again, this is different from ordinary corporations. As what we have learned from ordinary corporations as far as treasury shares are concerned, an ordinary corporation can acquire treasury shares. The only requirement is that it must have unrestricted retained earnings.
GR:No bank shall purchase or acquire shares of its own capital stock or accept its own shares as a security for a loan, even if there are unrestricted retained earnings. EXCEPTION:when authorized by the Monetary Board
The reason is, if you have treasury shares, your capital structure (paid-in capital, issued shares) will be lessened. Treasury shares are not treated as part of your capital stock. In fact, it will be deducted from your capital stock. In a way, it will impair your capital structure. It would defeat now the minimum capital requirement set by the Monetary Board.
In the event that the Monetary Board allows you to acquire treasury shares, what is the rule? - You are only allowed to hold on to it within 6 months. After 6 months, you have to dispose it.
Again, this is based on the trust fund doctrine. It would affect your capitalization. Special Commercial Laws - Finals EH 403 [2011 2012]
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In ordinary corporations, there is no such requirement.
Section 11. Foreign Stockholdings. - Foreign individuals and non-bank corporations may own or control up to forty percent (40%) of the voting stock of a domestic bank. This rule shall apply to Filipinos and domestic non-bank corporations.
The percentage of foreign-owned voting stocks in a bank shall be determined by the citizenship of the individual stockholders in that bank. The citizenship of the corporation which is a stockholder in a bank shall follow the citizenship of the controlling stockholders of the corporation, irrespective of the place of incorporation. (n)
SECOND PARAGRAPH
The second paragraph talks about the grandfather rule. The SEC, however, has done away with the strict application of the said rule and instead applied the more lenient control test to determine corporate nationality.
Grandfather Rule - Under the grandfather rule, if we look at the stockholdings of the company, we look at the grandfather
So, under the grandfather rule, the effective ownership of foreigners in Bank A is 41% 21% (ABC Foreign Corporation: 30% x 70%), plus 20% (Mr. A, Foreign Individual) = 41% So, you consider the citizenship of the controlling stockholders of ABC Corporation.
But under the more lenient control test, the ownership of foreigners in Bank A is 50%. (20% + 30%)
FIRST PARAGRAPH
Can foreigners or foreign corporations own a bank? - Yes, they can own or control up to the extent of 40% of the voting stock of a domestic bank. - 40% is the aggregate limit, and not the individual limit.
The second sentence states that, This rule shall apply to Filipinos and domestic non-bank corporations. Does it mean the same 40% limit? - It means that Filipinos and domestic non-bank corporations which are owned by Filipinos can acquire 40% each, meaning it is an individual limit. So Mr. A and Mr. B can acquire 40% EACH. - It is possible that a domestic bank can be owned collectively by Filipinos by 100%, so long as the individual limit does not exceed 40%.
NOTE: Section 11 should be read together with (1) Section 73, and (2) the Act Liberalizing the Entry of Foreign Banks
- Sec. 11 limits the equity of foreign ownership in a bank to only 40% but actually this one is somehow amended by Sec. 73 of the General Banking Law. It is now possible for a foreign bank to acquire 100% of the voting stock of only 1 existing bank.
SECTION 73. Acquisition of Voting Stock in a Domestic Bank. Within seven (7) years from the effectivity of this Act and subject to guidelines issued pursuant to the Foreign Banks Liberalization Act, the Monetary Board may authorize a foreign bank to acquire up to one hundred percent (100%) of the voting stock of only one (1) bank organized under the laws of the Republic of the Philippines.
Within the same period, the Monetary Board may authorize any foreign bank, which prior to the effectivity of this Act availed itself of the privilege to acquire up to sixty percent (60%) of the voting stock of a bank under the Foreign Banks Liberalization Act and the Thrift Banks Act, to further acquire voting shares of such bank to the extent necessary for it to own Special Commercial Laws - Finals EH 403 [2011 2012]
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one hundred percent (100%) of the voting stock thereof.
- Additionally, under a different law, An Act Liberalizing the Entry of Foreign Banks, if you are a FOREIGN OWNED CORPORATION and: 1) you are listed, OR 2) you are not listed but you existed here in the Philippines for at least 10 years already you can acquire 100% voting stock of a domestic bank. So, Section 11 has been amended, it is possible for A FOREIGN OWNED CORPORATION to acquire more than 40%.
- Apparently, it would seem that a domestic bank can now be owned 100% by foreigners. If you also look at the Foreign Investment Negative List, there is no limitation on ownership of banks because that is regulated by the General Banking Law.
Can Foreign Corporations own 100% of the shares of a domestic bank? - Yes, it is possible. Under: o (1) Section 73 of the General Banking Law, but only 1 existing bank o (2) RA 7721 An Act Liberalizing Entry of Foreign Banks In Section 11, only up to 40%
So, what did we learn? - For Filipinos: the individual limit is 40%, but it can be owned by 100% - For foreigners: o individuals, the limit is 40% o foreign owned corporation, it can own up to 100%. - So, in short, a domestic bank can now be owned by 100% by foreigners.
Section 12. Stockholdings of Family Groups of Related Interests. - Stockholdings of individuals related to each other within the fourth degree of consanguinity or affinity, legitimate or common-law, shall be considered family groups or related interests and must be fully disclosed in all transactions by such corporations or related groups of persons with the bank. (12-Ba)
Section 13. Corporate Stockholdings. - Two or more corporations owned or controlled by the same family group or same group of persons shall be considered related interests and must be fully disclosed in all transactions by such corporations or related group of persons with the bank. (12-Ba)
Sections 12 and 13 talk about stockholdings of family groups or related interests. Take note that the law does not provide a limit that one family can only own 40%. There is actually NO LIMIT. The only requirement by law is DISCLOSURE.
So, it is possible that a family group can acquire 100% of a domestic bank for as long as the INDIVIDUAL OWNERSHIP (of the members of the family group) DOES NOT EXCEED 40%(Section 11)
You remember when we discussed the organizational structure of banks under Section 8, that banks should obtain funds from the public, numbering 20 persons or more. Is it possible that these 20 persons belong to one family group? Yes, it is possible.
The law does not provide for restrictions on ownership of family or related interests. The only requirement is full disclosure.
Section 14. Certificate of Authority to Register. - The Securities and Exchange Commission shall not register the articles of incorporation of any bank, or any amendment thereto, unless accompanied by a certificate of authority issued by the Monetary Board, under it seal. Such certificate shall not be issued unless the Monetary Board is satisfied from the evidence submitted to it: 14.1 That all requirements of existing laws and regulations to engage in the business for which the applicant is proposed to be incorporated have been complied with; 14.2 That the public interest and economic conditions, both general and local, justify the authorization; and 14.3 That the amount of capital, the financing, organization, direction and administration, as well as the integrity and responsibility of the organizers and administrators reasonably assure the safety of deposits and the public interest. (9) The Securities and Exchange Commission shall not register the by-laws of any bank, or any amendment thereto, unless accompanied by a certificate of authority from the Bangko Sentral. (10)
Section 15. Board of Directors. - The provisions of the Corporation Code to the contrary notwithstanding, there shall be at least five (5), and a maximum of fifteen (15) members of the board or directors of a bank, two (2) of whom shall be independent directors. An "independent director" shall mean a person other than an officer or employee of the bank, its subsidiaries or affiliates or related interests. (n) Non-Filipino citizens may become members of the board of directors of a bank Special Commercial Laws - Finals EH 403 [2011 2012]
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to the extent of the foreign participation in the equity of said bank. (Sec. 7, RA 7721) The meetings of the board of directors may be conducted through modern technologies such as, but not limited to, teleconferencing and video-conferencing. (n)
Number of directors in a bank? - The number of directors must be at least 5 and a maximum of 15. Same as that of an ordinary corporation. - But at least 2 of them must be independent directors. o Who is considered an independent director? An "independent director" shall mean a person other than an officer or employee of the bank, its subsidiaries or affiliates or related interests. Additionally, to be considered as an independent director, you must also not be related by consanguinity or by affinity within the 4 th civil degree of any of the majority of the stockholder of the bank or any of its subsidiaries. You must also not be a consultant, lawyer, agent etc. of the bank or any subsidiaries or any of its majority stockholders. You must be totally independent. That you do not have any connection whatsoever with the bank, its subsidiaries, its officers or its stockholders, whether you are related by consanguinity or affinity, or you acted as a lawyer, consultant, adviser, etc.
Can a foreign individual be a director of a bank? - Yes. Non-Filipino citizens may become members of the BOD of a bank to the extent of the foreign participation in the equity of said bank. - For example, 40% of the bank is owned by foreigners. So, in the seat of the BOD, they can only occupy up to the extent of 40%. If you have 5 seats, 40% of the 5 seats is 2. And of course if it is 100%, then 5 seats. - Under the GBL, it is possible for a bank to be 100% foreign owned (see discussion under Section 11). - Thus, the BOD may be 100% foreign nationals. But a majority of them have to be residents of the Philippines.
Meetings of board of directors can be conducted thru the use of modern technologies. This is the same rule for ordinary corporations. It is not necessary to hold meetings in person. It can be done thru teleconferencing. Of course, there are rules prescribed by SEC in conducting teleconferencing and videoconferencing.
Section 16. Fit and Proper Rule. - To maintain the quality of bank management and afford better protection to depositors and the public in general the Monetary Board shall prescribe, pass upon and review the qualifications and disqualifications of individuals elected or appointed bank directors or officers and disqualify those found unfit. After due notice to the board of directors of the bank, the Monetary Board may disqualify, suspend or remove any bank director or officer who commits or omits an act which render him unfit for the position. In determining whether an individual is fit and proper to hold the position of a director or officer of a bank, regard shall be given to his integrity, experience, education, training, and competence. (9-Aa)
FIT AND PROPER RULE
The monetary board may provide for additional qualifications for BOD members in the bank, which has something to do with integrity, experience, education, training, and competence. - These qualifications set by the Monetary Board are in addition to those prescribed in the Corporation Code on qualifications of the directors.
What are the qualifications provided in the Corporation Code? - Must own at least 1 share of stock - Majority must be residents of the Philippines (it does not require citizenship; only residency) - Must be a natural person - Must not be convicted of a crime punishable by 6 years or the violations of the Corporation Code committed within 1 year
Additional Qualifications for Directors based on the circular issued by the BSP - Age: at least 25 years old - Education: College Graduate - Work Experience: 5 years experience in banking and other related activiites
Qualifications for Officers - Age: at least 21 years old - Education: College Graduate - Work Experience: 5 years experience in banking and other related activiites
What is the liability of bank for the torts committed by its officers? - We have discussed this in the case of PCI Bank vs. CA Special Commercial Laws - Finals EH 403 [2011 2012]
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- Take note that the bank is liable even for wrongful and tortuous acts of its employees.
Section 17. Directors of Merged or Consolidated Banks. - In the case of a bank merger or consolidation, the number of directors shall not exceed twenty-one (21). (l3a)
The only exception where the Board of Directors can exceed 15 is when there is merger or consolidation. If a bank consolidates or merges, then, it is possible that its Board will reach the number of 21, but not exceeding 21.
Section 18. Compensation and Other Benefits of Directors and Officers. - To protect the finds of depositors and creditors the Monetary Board may regulate the payment by the bark to its directors and officers of compensation, allowance, fees, bonuses, stock options, profit sharing and fringe benefits only in exceptional cases and when the circumstances warrant, such as but not limited to the following: 18.1. When a bank is under comptrollership or conservatorship; or 18.2. When a bank is found by the Monetary Board to be conducting business in an unsafe or unsound manner; or 18.3. When a bank is found by the Monetary Board to be in an unsatisfactory financial condition. (n)
What about compensation by its officers? Is there a limit? - If you read the provision, the Monetary Board may regulate the payment by the bank to its directors and officers of compensation xxxonly in exceptional cases and when the circumstances warrant.
- But if you look at these exceptional cases, thats the only time when the Monetary Board would regulate. By the time it does, it is already too late. The regulation may prove to be too late.
- But in any case, there is a limitation provided under the Corporation Code as far as compensation of directors is concerned. If the Monetary Board does not provide for a limit, the Corporation Code does. After all, banks are still considered corporations. The limit is it should not exceed 10% of the net income before tax of the preceding year. Somehow, this will serve as the limit. o If the bank is not doing so good, then the directors do not deserve to receive compensation. o Probably,this is the reason why the compensation is based on the net income. If the corporation is doing well, then most likely the BODs are doing their job also. If youre saying that there is no net income, then, they also do not have compensation. It cannot exceed 10%.
Section 19. Prohibition on Public Officials. - Except as otherwise provided in the Rural Banks Act, no appointive or elective public official whether full-time or part- time shall at the same time serve as officer of any private bank, save in cases where such service is incident to financial assistance provided by the government or a government owned or controlled corporation to the bank or unless otherwise provided under existing laws.
GENERAL RULE: No appointive or elective official can serve as an officer of the bank. EXCEPTION: When the government extends financial assistance to the Bank. Example is when the BSP or DBP (GOCC) grants financial loans or assistance to banks. That is the only time that a public official can sit in as an officer of the bank. The purpose is to protect the interest of the government because in this case the government extends financial assistance.
BANK OPERATIONS (Sections 20 22)
Section 20.Bank Branches. - Universal or commercial banks may open branches or other offices within or outside the Philippines upon prior approval of the Bangko Sentral. Branching by all other banks shall be governed by pertinent laws.
A bank may, subject to prior approval of the Monetary Board, use any or all of its branches as outlets for the presentation and/or sale of the financial products of its allied undertaking or of its investment house units. A bank authorized to establish branches or other offices shall be responsible for all business conducted in such branches and offices to the same extent and in the same manner as though such business had all been conducted in the head office. A bank and its branches and offices shall be treated as one unit.
Universal Banks and Commercial Banks are, as a rule, allowed to open branches within and outside of the Philippines but this with prior approval of BSP.
The operations of the branch shall be subject to the control or supervision or responsibility of the head office. So, meaning, the branches and the head office shall be considered or treated as one entity or one unit.
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Additionally, the bank may use its branch or any of its branches as outlet for the sale of financial products of its allied enterprises.
Example: When you go to the bank, some banks would offer sale of insurance, right? In case of Metrobank, there is a separate table selling AXA Insurance or another table offering to sell you credit cards. That is allowed because banks are allowed to use their branches as outlet for the sale of financial products of their allied enterprises.
Insurance Companies and Credit Card Companies are considered as allied enterprises.
Section 21.Banking Days and Hours. - Unless otherwise authorized by the Bangko Sentral in the interest of the banking public, all banks including their branches and offices shall transact business on all working days for at least six (6) hours a day. In addition, banks or any of their branches or offices may open for business on Saturdays, Sundays or holidays for at least three (3) hours a day: Provided, That banks which opt to open on days other than working days shall report to the Bangko Sentral the additional days during which they or their branches or offices shall transact business. For purposes of this Section, working days shall mean Mondays to Fridays, except if such days are holidays.
It used to be that banks operate for 6 hours only that is from 9am to 3pm. But right now, if the bank is located in the malls, they dont follow the regular banking hours. They are open until 7pm. (Theres even 24/7 ) The requirement is that they have to report their additional days and hours to the BSP.
Section 22.Strikes and Lockouts. - The banking industry is hereby declared as indispensable to the national interest and, notwithstanding the provisions of any law to the contrary, any strike or lockout involving banks, if unsettled after seven (7) calendar days shall be reported by the Bangko Sentral to the secretary of Labor who may assume jurisdiction over the dispute or decide it or certify the sane to the National Labor Relations Commission for compulsory arbitration. However, the President of the Philippines may at any time intervene and assume jurisdiction over such labor dispute in order to settle or terminate the same.
If theres a strike or lockout involves a bank and the strike or lockout remains unresolved for a period of 7 days, what is the effect? - The BSP will report the same and the Secretary of Labor shall assume jurisdiction and decide on the dispute OR be submitted to the NLRC for compulsory arbitration. The reason for that is that banks are indispensable to the national interest. - So, this is triggered by a report submitted by a bank CEO (or any bank officer) to the BSP, who will in turn report the same to the SOLE.
UNIVERSAL BANKS
Section 23.Powers of a Universal Bank - A universal bank shall have the authority to exercise, in addition to the powers authorized for a commercial bank in Section 29, the powers of an investment house as provided in existing laws and the power to invest in non-allied enterprises as provided in this Act.
POWERS OF A UNIVERSAL BANK
1. Powers authorized of a commercial bank (Section 29) meaning, all powers of commercial banks can be performed or can be done by universal banks
2. Powers of an investment house dealing, underwriting, or selling of securities.
Now, if a universal bank performs powers of an investment house like underwriting, or selling securities, do they need separate license from the SEC to sell or acquire securities for that matter?
Yes. SEC will require a universal bank to register or secure license as far as underwriting or selling securities. But it is still under the supervision of the BSP.
3. Power to invest in non-allied enterprises
No problem with respect to universal banks because it can invest to both, whether allied or non-allied. But, you have to distinguish later on when we go to commercial banks because a commercial bank can only invest in allied enterprises.
ALLIED ENTERPRISES:
1. Financial Allied - Credit Card Companies - Insurance Companies (like Metrobank with AXA as subsidiary) Special Commercial Laws - Finals EH 403 [2011 2012]
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- Investment House - Financing Companies - Another Bank as Subsidiary - Companies engaged in stock brokerage, foreign exchange
2. Non-Financial Allied - Safety deposit box Companies - Warehousing Companies Under the BSP Regulation, it is considered as allied but only non-financial.
NON-ALLIED ENTERPRISES:
- Those which are not allied. Just memorize what are allied. Those which do not fall under allied are non-allied. - Ex. Culturing, mining, manufacturing (of any kind), public utilities, wholesale trade, hospitals, hotels, restaurants, transportation, etc.
EQUITY INVESTMENTS OF A UNIVERSAL BANK
Section 24.Equity Investments of a Universal Bank. - A universal bank may, subject to the conditions stated in the succeeding paragraph, invest in the equities of allied and non-allied enterprises as may be determined by the Monetary Board. Allied enterprises may either be financial or non-financial. Except as the Monetary Board may otherwise prescribe: 24.1. The total investment in equities of allied and non-allied enterprises shall not exceed fifty percent (50%) of the net worth of the bank; and 24.2. The equity investment in any one enterprise, whether allied or non-allied, shall not exceed twenty-five percent (25%) of the net worth of the bank. As used in this Act, "net worth" shall mean the total of the unimpaired paid-in capital including paid-in surplus, retained earnings and undivided profit, net of valuation reserves and other adjustments as may be required by the Bangko Sentral.
The acquisition of such equity or equities is subject to the prior approval of the Monetary Board which shall promulgate appropriate guidelines to govern such investments. (21-Ba)
LIMIT AS TO INVESTMENT
TOTAL INVESTMENT: A bank may invest whether its allied or non-allied or both only up to 50% of its net worth. So, if the net worth of the bank is 100M, it can invest only to the extent 50M. This is the aggregate limit.
SINGLE ENTERPRISE: In no case, shall the investment of universal bank in one enterprise whether its allied or non-allied exceed 25%. - The purpose is to spread your risk, to spread your investment. Dont place all your eggs in one basket. So, to limit the exposure of universal banks in one entity, 25%. If that investment turns out to be bad, your exposure is only 25%. So, 25%, that would only be 25M.
If you are universal bank, you can invest in several companies (Co. A, B, C, D). Theres no limitation. Provided, that the total investment shall not exceed 50M and in no case shall the investment in any of these enterprises exceed 25M.
What do you understand by net worth? - The total of the unimpaired paid-in capital including paid-in surplus, retained earnings and undivided profit, net of valuation reserves and other adjustments as may be required by the BSP. - So, it is assets minus liabilities or capital stock or equity plus your retained earnings (accumulated profits). It sometimes refers to as net assets.
Section 25.Equity Investments of a Universal Bank in Financial Allied Enterprises. - A universal bank can own up to one hundred percent (100%) of the equity in a thrift bank, a rural bank or a financial allied enterprise. A publicly-listed universal or commercial bank may own up to one hundred percent (100%) of the voting stock of only one other universal or commercial bank. (21-B; 21-Ca)
To what extent can a universal bank invest in a FINANCIAL ALLIED ENTERPRISE? - 100% of equity.
Dont be confused with 100% and 50%. - 50% refers to the NET WORTH of the bank but the 100% refers to the EQUITY. - Meaning its possible for a universal bank to acquire 100% ownership of a financial allied enterprise like, for example, insurance. So, long as the value of the investment (in a single enterprise) does not exceed 25% of its net worth, and the total investment does not exceed 50% of its net worth.
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EX. The universal bank acquired 100% of the capital stock (equity) of an insurance company,and the value of the stock is 30M, can the universal bank make this investment if its net worth is 100M? - No. The bank is allowed to invest up to 100% of the equity but in no case shall the investment in a single enterprise exceed 25%.
Under the first sentence, It mentions 100% of the equity in a thrift bank, rural bank, or financial allied enterprise. So a universal bank can own up to 100% of the equity of another universal bank because universal banks are financial allied enterprises.
BUT that is qualified under second sentence. If you are to invest in a financial allied enterprise and that financial allied enterprise happens to be a UNIVERSAL BANK OR COMMERCIAL BANK, for you to acquire 100% equity of that universal or commercial bank, the acquiring universal bank has to be publicly listed. So, meaning, if you are not a publicly listed universal bank, you cannot acquire 100% equity of another universal bank or commercial bank.
IN SUM: - A UNIVERSAL BANK can own 100% of the equity in a (1) thrift bank, (2) rural bank, or (3) financial allied enterprise [including universal banks] - BUT, the acquiring universal bank or commercial bank must be PUBLICLY- LISTED to acquire 100% of the equity of another universal or commercial bank. - IF acquiring universal or commercial bank is not publicly-listed, it can only acquire minority interest, up to 49%.
Section 26.Equity Investments of a Universal Bank in Non-Financial Allied Enterprises. - A universal bank may own up to one hundred percent (100%) of the equity in a non-financial allied enterprise. (21-Ba)
Section 27.Equity Investments of a Universal Bank in Non-Allied Enterprises. - The equity investment of a universal bank, or of its wholly or majority-owned subsidiaries, in a single non-allied enterprise shall not exceed thirty-five percent (35%) of the total equity in that enterprise nor shall it exceed thirty-five percent (35%) of the voting stock in that enterprise. (21-B)
What about investment in NON-FINANCIAL ALLIED, to what extent can a universal bank invest? - Still, 100%.
But in case of a NON-ALLIED, what is the extent? - It shall not exceed 35% in the total equity nor shall it exceed 35% of the voting stock.
What is the difference between total equityand voting stock? - Total equity refers to voting and non-voting. So, it should not exceed 35% of the total equity or 35% of the voting stock. But take note of this, for purposes of determining of whether or not the universal bank already exceeds the 35% limit with respect to investments in a non-allied enterprise, the 35% includes not only the investment of the universal bank itself but also the investment of its wholly or majority owned subsidiaries.
Is there a difference of wholly or majority owned? - When you say subsidiary, for that company to be considered as your subsidiary, you must own at least majority or 51% of that enterprise. But it can still be considered as subsidiary even if you own 100%. So, thats why, wholly owned subsidiary or majority-owned subsidiary.
Ex. If Im a universal bank, and then lets say theres non-allied enterprise, Hotel USC. The universal bank has a subsidiary company, Co. A. So I, universal bank, invested in this hotel 20%. My subsidiary (majority or wholly owned) also invested 20% in this non-allied enterprise. Is this investment allowed? - No. Because it exceeds 35%.
For investments in NON-ALLIED ENTERPRISES, you also have to consider the equity investment of the subsidiary (majority or wholly-owned). So, equity investment of a UNIVERSAL BANK, plus the equity investment of the SUBSIDIARY. Note that the law does not say affiliate, only subsidiary. (Affiliate minority ownership, less than 51%) In the earlier example, if the universal bank owns only a minority interest in Co. A, you dont consider the equity investment of Co. A in computing for the 35% limit since Co. A is not a subsidiary.
Section 28.Equity Investments in Quasi-Banks. - To promote competitive conditions in financial markets, the Monetary Board may further limit to forty percent (40%) equity investments of universal banks in quasi-banks. This rule shall also apply in the case of commercial banks.
o What about equity investment in a quasi-bank? - Up to 40% Special Commercial Laws - Finals EH 403 [2011 2012]
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COMMERCIAL BANKS
Section 29.Powers of a Commercial Bank. - A commercial bank shall have, in addition to the general powers incident to corporations, all such powers as may be necessary to carry on the business of commercial banking such as accepting drafts and issuing letters of credit; discounting and negotiating promissory notes, drafts, bills of exchange, and other evidences of debt; accepting or creating demand deposits; receiving other types of deposits and deposit substitutes; buying and selling foreign exchange and gold or silver bullion; acquiring marketable bonds and other debt securities; and extending credit, subject to such rules as the Monetary Board may promulgate. These rules may include the determination of bonds and other debt securities eligible for investment, the maturities and aggregate amount of such investment.
General Powers: those incident to a corporation (to sue and be sued, adopt a corporation seal, etc.)
Specific Powers: All powers necessary to carry on the business of commercial banking
1. accepting drafts and issuing letters of credit; 2. discounting and negotiating promissory notes, drafts, bills of exchange, and other evidences of debt; 3. accepting or creating demand deposits; 4. receiving other types of deposits and deposit substitutes; 5. buying and selling foreign exchange and gold or silver bullion; 6. acquiring marketable bonds and other debt securities; and 7. extending credit, subject to such rules as the Monetary Board may promulgate
These are the same powers that are also exercised by Universal Banks. We mentioned earlier that the Universal Bank has the same powers as that of a Commercial Bank.
Can a commercial bank engage in quasi-banking even without approval of the BSP? - Yes, because it says here (in the law) to receive other types of deposits and deposit substitutes. Remember that quasi-banking is receiving, obtaining funds from the public through issuance of deposit substitutes. In short, that is quasi-banking. So, yes, it is within the powers of a commercial bank.
Section 30.Equity Investments of a Commercial Bank. - A commercial bank may, subject to the conditions stated in the succeeding paragraphs, invest only in the equities of allied enterprises as may be determined by the Monetary Board. Allied enterprises may either be financial or non-financial. Except as the Monetary Board may otherwise prescribe: 30.1. The total investment in equities of allied enterprises shall not exceed thirty-five percent (35%) of the net worth of the bark; and 30.2. The equity investment in any one enterprise shall not exceed twenty-five percent (25%) of tile net worth of the bank. The acquisition of such equity or equities is subject to the prior approval of the Monetary Board which shall promulgate appropriate guidelines to govern such investment.(2lA-a; 21-Ca)
If its a commercial bank, what is the extent of the total equity investment? - Not to exceed 35% of its net worth but only for ALLIED ENTERPRISES.
What about in a single enterprise? - 25% of net worth but still allied.
Section 31.Equity Investments of a Commercial Bank in Financial Allied Enterprises. - A commercial bank may own up to one hundred percent (100%) of the equity of a thrift bank or a rural bank. Where the equity investment of a commercial bank is in other financial allied enterprises, including another commercial bank, such investment shall remain a minority holding in that enterprise. (21-Aa; 21-Ca)
FIRST SENTENCE: A commercial bank may own up to 100% equity in a THRIFT BANK or RURAL BANK. Thats a financial allied enterprise. Its the same as with universal bank.
SECOND SENTENCE: Read carefully the 2 nd sentence, it says there where the equity investment of a commercial bank in other financial allied enterprise including another bank, such investment shall remain a MINORITY HOLDING in that bank.
Can you relate that to Section 25, 2 nd sentence? - Sec 25: mentions of a commercial bank investing in another commercial bank, which can acquire 100%. - Sec 31: it says only minority.
Is there a conflict? - Sec 31: Shall remain a minority, meaning 49%. Special Commercial Laws - Finals EH 403 [2011 2012]
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- Sec 25: if publicly-listed, universal or commercial bank acquiring another universal or commercial bank may own up to 100%.
Can a commercial bank acquire 100% equity of another commercial bank (or a financial allied enterprise other than a thrift or a rural bank) - Yes, provided that the commercial bank is publicly listed. If the commercial bank is not publicly-listed, it could only acquire minority.
SO, - If PUBLICLY-LISTED up to 100% - If NOT PUBLICLY-LISTED only a MINORITY HOLDING
Section 32.Equity Investments of a Commercial Bank in Non-Financial Allied Enterprises. A commercial bank may own up to one hundred percent (100%) of the equity in a non-financial allied enterprise. (21-Aa) Article III. Provisions Applicable To All Banks, Quasi-Banks, And Trust Entities
Equity investment of a commercial bank in a non-financial allied is also 100%. Equity investment in quasi-banks? - Only 40% (Section 28)
RECAP:
Powers of a UNIVERSAL BANK: Powers of a COMMERCIAL BANK: 1. Powers authorized of a commercial bank (Section 29) 1. Same 2. Powers of an investment house 2. Not available to a commercial bank 3. Power to invest in non-allied enterprises 3. Not available to a commercial bank. Commercial Banks can only invest in ALLIED ENTERPRISES (Financial or Non-Financial Allied)
LIMITATIONS ON INVESTMENTS UNIVERSAL BANK COMMERCIAL BANK Total Investments in ALLIED ENTERPRISES (24, 30) 50% of net worth 35% of net worth Equity Investment in a SINGLE ENTERPRISE (24, 30) 25% of net worth 25% of net worth Equity Investments in FINANCIAL ALLIED ENTERPRISES (25, 31) 100% of equity. A publicly-listed bank may own up to 100% of the voting stock of only one other UB/CB. 100% of equity of a thrift or rural bank. In other financial allied enterprises including another commercial bank, investment shall remain a minority holding. Equity Investments in NON-FINANCIAL ALLIED ENTERPRISES (26, 32) 100% of equity 100% of equity Equity Investments of a Universal Bank in NON-ALLIED ENTERPRISES (24, 27) TOTAL = 50% of net worth SINGLE ENTERPRISE = shall not exceed thirty-five percent (35%) of the total equity in that enterprise nor shall it exceed thirty-five percent (35%) of the voting stock in that enterprise N/A Equity Investments in Quasi-banks (28) 40% 40%
DEPOSITS, LOANS AND OTHER OPERATIONS (Sections 33 66)
Section 33.Acceptance of Demand Deposits. - A bank other than a universal or commercial bank cannot accept or create demand deposits except upon prior approval of, and subject to such conditions and rules as may be prescribed by the Monetary Board.
This section talks about authority of the bank to accept demand deposits.
Types of Deposits:
1. Time Deposit interest rates stipulated depend on the number of days, which may be 30, 60, 90, 180, 360, or 540 days. During this period, money deposited cannot be withdrawn. The banks use this money to lend to others. That is why in such accounts, depositors are paid high interest rates as compensation for the use of the money by the bank. Special Commercial Laws - Finals EH 403 [2011 2012]
18 General Banking Secrecy of Bank Deposits PDIC Truth in Lending Anti-Money Laundering Foreign Investments Warehouse Receipts Whew
2. Savings Deposits interest at say 8%. Under the fine prints, if you deposit today, you cannot withdraw the amount not until 60 days later. The bank can lend out such funds; that is why it pays interests on such deposits. 3. Demand Deposits or Current Accounts no interest is paid by the bank (unlike in time and savings deposit), because the depositor can take out his funds any time. It is called demand deposit because the depositor can withdraw the money he deposited on the very same day he deposited it. This involves checking or current accounts.
As a rule, with respect to demand deposits, only universal banks and commercial banks are allowed to accept or create demand deposits. For other banks, they require prior approval from the BSP.
SERRANO V. CENTRAL BANK
The relationship between the bank and the depositor is not that of a deposit, but one that is called irregular deposit, which is actually a CREDITOR-DEBTOR RELATIONSHIP, the creditor being the depositor and the debtor being the bank. This is because the bank is not required to return the very same currency bill that was deposited. The deposits are considered as loans or mutuum.
FACTS:
There were time deposits made by two persons in the Overseas Bank of Manila. Serrano sued Overseas Bank and Central Bank to recover his time deposits.
So, his contention was that (first) there is solidary liability between the two banks because Central bank was not able to supervise properly the operations of the Overseas Bank in the sense that it allowed Overseas Bank to continue its transaction when such bank should have been under chronic reserve deficiency because of its unpaid advances and emergency loans from BSP and as a result, the BSP required the Overseas Bank to put in additional collaterals. And (second) there was a constructive trust created between him and Central Bank in the sense that when the Central bank required Overseas Bank to put in additional collaterals, the collaterals were from depositors money which includes his time deposits. So since he was not paid, Central Bank is liable under constructive trust for failure to return.
Can Serrano recover? - No. They are loans because they earned interest and all kinds of deposits under savings or current are to be treated as loans to be covered by the laws of Loans. - So, failure to return the deposit is just like failure of the bank to pay loan. It is not a breach of trust because deposits in the banks are not governed by Contract of Deposits that if you are not able to return the thing deposited, you are liable. But here, the failure to return the time deposit is just failure to pay your loan obligation.
CA AGRO-INDUSTRIALDEVELOPMENT CORPORATION v. CA
The contract between the bank renting out safety deposit boxes and its customers or clients is a contract of deposit but of a special kind, akin to a contract of bailment (commodatum), and not a contract of lease. Thus, their relationship is that of a bailor and bailee.
FACTS:
CA-Agro entered into a contract of sale on installment with condition upon payment of the first installment, they will place the Certificate of Title with the safety deposit box. There were two sets of keys, one for the bank (guard key) and the other one is the renters key. In this case, there were two renters keys. So three keys in all.
The third party, Mrs. Ramos, wanted to purchase the property at a higher price and so, the renters wanted to avail the offer. So, they tried to sell it. So, they went to the bank to get the certificate of title but when they opened the box, it was empty. The reconstitution of the certificate of title was prolonged, so Mrs. Ramos withdrew and so, they suffered damages. Now, they want to claim damages against the bank.
Is Security Bank liable for the lost CTCs? - The bank is not liable. - But first you have to discuss the relationship between the bank renting out safety deposit box to its customers or clients? It was a contract of deposit but of a special kind. - It was not a contract of lease because in a contract of lease, the lessee must have control and full possession of the lease. But in this case, cannot because the renters cannot have full possession and control of the safety deposit box. They cannot open it without the guards key. - It was also not a contract of deposit because the bank does not have full control and possession. It cannot use the things being deposited inside the safety deposit box because it needs a renters key. So, thats why it is a special kind of deposit and akin to a contract of bailment (contract of commodatum), the relationship is that of a bailor and bailee.
Special Commercial Laws - Finals EH 403 [2011 2012]
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What provision of law do we apply now to determine the relationship, rights and liabilities of the parties? - Section 72 of the General Banking Act (old law) - Under the new law, it is under Section 53 on other banking services. Under section 53, a bank is authorized to rent out safety deposit boxes, to receive in its custody funds, documents, etc. If the bank performs these services, the bank shall be considered as a depositary. As a depositary, the bank incurs liabilities. Meaning, it shall be responsible for any loss of the contents due to fraud, negligence, etc. - But the problem in this case was that, there was no clear showing that Security Bank was negligent, nor was there fraud. So SC said that the bank is not liable. - As a general rule, if something happens to the thing deposited, the bank is liable. But in this case, it was not proven that the bank was at fault or in bad faith. - If for example, I am the renter. If there was no record that I went to bank but if the thing deposited was lost, who should be liable? It should be the bank.
Is it valid for the bank to stipulate that it is exempt from liability in case of any loss on the contents of the safety deposit box? - No. It is contrary to law. The bank is liable under Section 53.
FIRESTONE TIRE v. CA
- It involves withdrawal slips that were accepted as checks. - The bank which accepted withdrawal slips as checks was liable because it failed to exercise the degree of care or diligence expected of banks.
PCI BANK V. CA
There was a purchase of telegraphic transfers intended to fund the account of petitioner. Now, thinking that the telegraphic transfer was made, he issued checks. Later on, they were dishonored because the bank failed to make the transfer, to credit the funds to his account.
In his purchase of the telegraphic account, there was a stipulation in the contract that the bank shall not be liable in case of loss or damage resulting from the telegraphic transfer of funds.
ISSUE: Is it valid for the bank to stipulate that the bank is not liable for any loss or damage relating to the purchase of telegraphic transfer of funds?
SC: No because it is contrary to law. Why? Because here, it was proven that the bank was guilty of bad faith. There was fault or negligence on the part of the bank. It cannot just merely make a stipulation exempting itself from liability.
BPI V. CA
This case involves a loan obtained from the bank. As security for the loan, there is what we call as Hold-Out Agreement. You obtained a loan from the bank and you also have a time deposit. So, normally if you want a lower interest in your loans, you enter into a Hold-Out Agreement wherein during the period that your loan is outstanding, you are not allowed to withdraw your time deposits.
Here, there was an application of loan and at the same time, there is a Hold-Out Agreement. Here, when the loan matures, the bank instead of applying the hold-out agreement (set-off the loan against the time deposit) insisted on demanding payment.
ISSUE: is there a duty on the part of the bank to apply the time deposit as against the outstanding loan by virtue of the agreement?
SC: In this case, the hold-out agreement is only an option, an alternative of the bank but it is just a power not a duty. So, the bank is under no duty to make the application. If the bank decides to collect, it means that the bank did not exercise its privilege to offset the loan against the deposits.
ANOTHER ISSUE: Ownership of the time deposit there were two parties claiming ownership. Despite the notice of the controversy over the ownership, the bank released the proceeds of the time deposit to the other party, to the prejudice of the real owners. So is the bank still obliged to pay the real owners of the time deposit even if it had already proceeds to the other party?
According to the bank, it released the proceeds in good faith.
SC: Contention of the bank is not correct. The nature of the relationship is a creditor-debtor relationship. And so, if the debtor pays the wrong creditor, the effect is that it is as if there is no payment. It does not extinguish the obligation even if the payment was made in good faith. Therefore, the bank still has the obligation to pay the debt to the proper creditor.
Special Commercial Laws - Finals EH 403 [2011 2012]
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Section 34.Risk-Based Capital. - The Monetary Board shall prescribe the minimum ratio which the net worth of a bank must bear to its total risk assets which may include contingent accounts. For purposes of this Section, the Monetary Board may require such ratio be determined on the basis of the net worth and risk assets of a bank and its subsidiaries, financial or otherwise, as well as prescribe the composition and the manner of determining the net worth and total risk assets of banks and their subsidiaries: Provided, That in the exercise of this authority, the Monetary Board shall, to the extent feasible conform to internationally accepted standards, including those of the Bank for International Settlements(BIS), relating to risk-based capital requirements: Provided further, That it may alter or suspend compliance with such ratio whenever necessary for a maximum period of one (1) year: Provided, finally, That such ratio shall be applied uniformly to banks of the same category. In case a bank does not comply with the prescribed minimum ratio, the Monetary Board may limit or prohibit the distribution of net profits by such bank and may require that part or all of the net profits be used to increase the capital accounts of the bank until the minimum requirement has been met The Monetary Board may, furthermore, restrict or prohibit the acquisition of major assets and the making of new investments by the bank, with the exception of purchases of readily marketable evidences of indebtedness of the Republic of the Philippines and of the Bangko Sentral and any other evidences of indebtedness or obligations the servicing and repayment of which are fully guaranteed by the Republic of the Philippines, until the minimum required capital ratio has been restored. In case of a bank merger or consolidation, or when a bank is under rehabilitation under a program approved by the Bangko Sentral, Monetary Board may temporarily relieve the surviving bank, consolidated bank, or constituent bank or corporations under rehabilitation from full compliance with the required capital ratio under such conditions as it may prescribe. Before the effectivity of rules which the Monetary Board is authorized to prescribe under this provision, Section 22 of the General Banking Act, as amended, Section 9 of the Thrift Banks Act, and all pertinent rules issued pursuant thereto, shall continue to be in force. (22a)
What do you understand by risk-based capital? - Risk-based capital is the ratio of your net worth to your total risk assets. - So, the BSP shall prescribe the minimum ratio which the net worth of a bank must bear to its total risk assets which may include contingent accounts. - Take note of the equation [Net worth = Asset liabilities] or [Assets= Liabilities + Net worth] - The BSP will determine whether the assets are risk assets or non-risk assets, and will then assign risk weights to those assets.
What are risk assets? - Loans risk depends on the borrower o If borrower is a corporation, perhaps 10% risk. o If borrower is the government, there is 0% risk since the government cannot become bankrupt. - Investments depends on the investment o If investment in treasury bonds, 0% risk since the government cannot become insolvent. o If investment in stocks, 20% risk.
What are non-risk assets? (0% risk) - Cash because it is certain (0% risk) - Loans or receivables but secured by Government issued securities like treasury bonds because the Government cannot become insolvent because of its inherent power of taxation.
For every risk asset that you acquire, you are required to put in additional capital. - If 0% risk, no need to put in additional capital. - If 10% risk, example, if you extend a loan of Php100, you have to put in additional capital of Php10.
What is the purpose? - The purpose of setting a ratio is to limit the amount of loans or investments that a bank can lend, so as to prevent the bank from over- expanding or over-extending loans which are disproportionate to its capital. - Where did you get the money which you extended as loans or investments to others? Ofcourse, from the capital first but if its only this much, you get it from the deposits. So, some of the money which you extended as loans or investments were taken out from deposits which are considered as your liabilities. So you over-extended, you used the deposits, and since those loans are risky, the collectibility of those loans is uncertain. - The result is that your liabilities would balloon to the prejudice of your depositors and creditors. So its just like the Trust Fund Doctrine. The law is trying to say is that for every investment or loan you grant, or every risk asset which you acquire, there must be a counterpart capital that will be put up. - So, there must be a limit. For every asset which is considered as risk, you should put in a capital.
Special Commercial Laws - Finals EH 403 [2011 2012]
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What is the effect if the bank does not comply with the risk-based capital ratio? 1. The bank would not be allowed to declare dividends, instead the BSP will require the bank to increase its capital. o So, instead of declaring cash dividends, you declare stock dividends. 2. In the meantime, the bank cannot make major acquisitions or major investments.
EXCEPTIONS: in cases of merger or consolidation, or when the bank is under rehabilitation. It can be temporarily relieved.
Section 35.Limit on Loans, Credit Accommodations and Guarantees
35.1 Except as the Monetary Board may otherwise prescribe for reasons of national interest, the total amount of loans, credit accommodations and guarantees as may be defined by the Monetary Board that may be extended by a bank to any person, partnership, association, corporation or other entity shall at no time exceed twenty percent (20%) of the net worth of such bank. The basis for determining compliance with single borrower limit is the total credit commitment of the bank to the borrower.
35.2. Unless the Monetary Board prescribes otherwise, the total amount of loans, credit accommodations and guarantees prescribed in the preceding paragraph may be increased by an additional ten percent (10%) of the net worth of such bank provided the additional liabilities of any borrower are adequately secured by trust receipts, shipping documents, warehouse receipts or other similar documents transferring or securing title covering readily marketable, non-perishable goods which must be fully covered by insurance.
35.3 The above prescribed ceilings shall include (a) the direct liability of the maker or acceptor of paper discounted with or sold to such bank and the liability of a general endorser, drawer or guarantor who obtains a loan or other credit accommodation from or discounts paper with or sells papers to such bank; (b) in the case of an individual who owns or controls a majority interest in a corporation, partnership, association or any other entity, the liabilities of said entities to such bank; (c) in the case of a corporation, all liabilities to such bank of all subsidiaries in which such corporation owns or controls a majority interest; and (d) in the case of a partnership, association or other entity, the liabilities of the members thereof to such bank.
35.4. Even if a parent corporation, partnership, association, entity or an individual who owns or controls a majority interest in such entities has no liability to the bank, the Monetary Board may prescribe the combination of the liabilities of subsidiary corporations or members of the partnership, association, entity or such individual under certain circumstances, including but not limited to any of the following situations: (a) the parent corporation, partnership, association, entity or individual guarantees the repayment of the liabilities; (b) the liabilities were incurred for the accommodation of the parent corporation or another subsidiary or of the partnership or association or entity or such individual; or (c) the subsidiaries though separate entities operate merely as departments or divisions of a single entity.
35.5. For purposes of this Section, loans, other credit accommodations and guarantees shall exclude: (a) loans and other credit accommodations secured by obligations of the Bangko Sentral or of the Philippine Government: (b) loans and other credit accommodations fully guaranteed by the government as to the payment of principal and interest; (c) loans and other credit accommodations covered by assignment of deposits maintained in the lending bank and held in the Philippines; (d) loans, credit accommodations and acceptances under letters of credit to the extent covered by margin deposits; and (e) other loans or credit accommodations which the Monetary Board may from time to time, specify as non- risk items.
35.6. Loans and other credit accommodations, deposits maintained with, and usual guarantees by a bank to any other bank or non-bank entity, whether locally or abroad, shall be subject to the limits as herein prescribed.
35.7. Certain types of contingent accounts of borrowers may be included among those subject to these prescribed limits as may be determined by the Monetary Board.(23a)
What do you understand by Single Borrowers Limit or SBL? - Its the maximum which a person may borrow from a bank or the bank may extend to a single borrower whether it is a person, partnership or corporation. So, there is a limit.
What is the limit? - It shall not exceed 25% (take note in the provision above, the 20% has been amended by virtue of a BSP Circular) of the net worth of such bank. So, meaning, the bank cannot lend to a single person more than 25% of its net worth. - Lets say that the net worth of the bank is 100M. So to a single individual, or corporation, it can only extend up to 25M.
What is the purpose of SBL? Special Commercial Laws - Finals EH 403 [2011 2012]
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- To prevent granting excessive loans to a single person or to limit the exposure of the bank to a single person. - Again, to spread the risk. Do not place all your eggs in one basket. - Imagine if all your receivables come from a client who cannot pay later on?
In computing the 25%, you have to consider the total credit commitment of the bank. The total credit commitment shall include all types of loans, such as housing loan, car loan, letters of credit perhaps, or any other kind of loan. So, all credit commitments.
If the borrower is an individual, you consider not only this individuals loan from the bank but you consider the loan of a corporation wherein this individual is a majority stockholder as well. Example he is a majority stockholder of Corporation A. So Individual plus Corporation A. In no case shall the total (Individual + Corp A) exceed 25%.
In the case of a corporation, all liabilities to such bank of all subsidiaries in which such corporation owns or controls a majority interest. So, again, example Company A has two subsidiaries, B and C. So, for purposes of determining whether it exceeds the 25% limit, consider not only the loans to Company A but also to the subsidiaries B and C. [A+B+C] - Lets say 25% of the net worth of the bank is 25M. If the parent company has obtained a loan of 10M and the other subsidiary 10M, so, 20M in all. Even if the parent company has not obtained loan but only the subsidiaries, the loan is still imputed to the parent company. Because its not only the corporation but includes also all of its subsidiaries.
Can the 25% limit be increased? - YES. The 25% can be increased by another 10% provided that the additional liabilities of any borrower are adequately secured by trust receipts, shipping documents, warehouse receipts or other similar documents transferring or securing title covering readily marketable, non- perishable goods which must be fully covered by insurance. - Take note that it only mentions adequately secured by trust receipts, shipping documents, warehouse receipts or other similar documents transferring or securing title covering readily marketable, non-perishable goods. It does not mention of real estate mortgage. So, meaning, if I apply a loan and secured by a real estate mortgage, it cannot be extended by 10%. - What is the reason? Trust receipts, shipping documents, warehouse receipts and other similar documents are easier to dispose. Meaning less risky.
There are exclusions where in the loan and credit accommodations which are not covered or not included in the computation of 25%. What are those loans which are excluded? Those considered as non-risk. a. loans and other credit accommodations secured by obligations of the Bangko Sentral or of the Philippine Government: - Treasury shares. Again, the government is not expected to go bankrupt. b. loans and other credit accommodations fully guaranteed by the government as to the payment of principal and interest; c. loans and other credit accommodations covered by assignment of deposits maintained in the lending bank and held in the Philippines; d. loans, credit accommodations and acceptances under letters of credit to the extent covered by margin deposits; and e. other loans or credit accommodations which the Monetary Board may from time to time, specify as non-risk items.
So - 10M loan is secured by treasury bonds issued by the government = excluded - 1M of the LC is covered by a margin deposit = excluded - 10M, the 5M is covered by hold-out agreement = the 5M deposit (under the hold-out agreement) is excluded. The exposure is the remaining amount, the other 5M.
What about back to back deposits? - You have a loan and at the same time deposit. The loan is secured by the deposit. So long as there is an agreement that this deposit will be applied to the loan, it will be excluded.
Section 36.Restriction on Bank Exposure to Directors, Officers, Stockholders and Their Related Interests. - No director or officer of any bank shall, directly or indirectly, for himself or as the representative or agent of others, borrow from such bank nor shall he become a guarantor, endorser or surety for loans from such bank to others, or in any manner be an obligor or incur any contractual liability to the bank except with the written approval of the majority of all the directors of the bank, excluding the director concerned: Provided, That such written approval shall not be required for loans, other credit accommodations and advances granted to Special Commercial Laws - Finals EH 403 [2011 2012]
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officers under a fringe benefit plan approved by the Bangko Sentral. The required approval shall be entered upon the records of the bank and a copy of such entry shall be transmitted forthwith to the appropriate supervising and examining department of the Bangko Sentral. Dealings of a bank with any of its directors, officers or stockholders and their related interests shall be upon terms not less favorable to the bank than those offered to others. After due notice to the board of directors of the bank, the office of any bank director or officer who violates the provisions of this Section may be declared vacant and the director or officer shall be subject to the penal provisions of the New Central Bank Act. The Monetary Board may regulate the amount of loans, credit accommodations and guarantees that may be extended, directly or indirectly, by a bank to its directors, officers, stockholders and their related interests, as well as investments of such bank in enterprises owned or controlled by said directors, officers, stockholders and their related interests. However, the outstanding loans, credit accommodations and guarantees which a bank may extend to each of its stockholders, directors, or officers and their related interests, shall be limited to an amount equivalent to their respective unencumbered deposits and book value of their paid-in capital contribution in the bank: Provided, however, That loans, credit accommodations and guarantees secured by assets considered as non-risk by the Monetary Board shall be excluded from such limit: Provided, further, That loans, credit accommodations and advances to officers in the form of fringe benefits granted in accordance with rules as may be prescribed by the Monetary Board shall not be subject to the individual limit. The Monetary Board shall define the term "related interests." The limit on loans, credit accommodations and guarantees prescribed herein shall not apply to loans, credit accommodations and guarantees extended by a cooperative bank to its cooperative shareholders. (83a)
Restriction on bank exposure to DOSRI (Directors, Officers, Stockholders, Related Interest)
What is the rule? - No direct or officer of a bank shall borrow from such bank, nor shall he become a guarantor or surety for loans from such bank to others - UNLESS there is a written approval of majority of the directors of the bank but excluding the director concerned. - So its not really prohibited. You just have to comply with the requirement.
What is the limit which you can lend to a DOSRI? - It shall be equivalent to their respective unencumbered deposits and book value of their paid-in capital contribution in the bank. - So, if I am a director, I can borrow from the bank where I am a director provided there is a written approval, etc. but it shall not exceed the unencumbered deposit. - So, if my deposit in that bank is 100K, I can borrow only up to the extent of 100K. In short, it is secured. If I dont have a deposit, I cannot borrow. - Or, plus the book value of your paid-in capital contribution which will apply only if you are a stockholder. Because if you are not a stockholder, you dont have paid-in capital contribution. - Why unencumbered? Meaning free deposit, not held in escrow.
Do you remember the discussion we had with New Central Bank Act? There was also a provision regarding DOSRI that if a DOSRI obtained a loan or credit accommodation from his bank or other bank wherein a subsidiary has the same parent with the lending bank and the bank in which he is a director, what is the requirement under the act? - There must be a WAIVER OF SECRECY OF BANK DEPOSITS. - In addition to that, this is the requirement under the General Banking Law.
What is the penalty if a bank extends a loan to a DOSRI without following these requirements? - The position of the officer, director will be declared as vacant - Additionally, the director, officer will be subject to the penal provisions of the New Central Bank Act.
Take note, another principle, if a bank extends a loan to a DOSRI, the terms of the loan should not be less favorable to the bank than those offered to others. So, just because you are a DOSRI, the bank will grant you loan with a lower interest. The prevailing interest rate applied to third parties must also be applied to DOSRI. This is what you call insider lending (DOSRI borrows from bank which he is a DOSRI).
EXCEPTIONS: 1. Fringe benefits, like when the DOSRI obtained cash advances, loans from the bank by way of transportation allowance, travel allowancethat is not included. So, meaning even if I have no cash deposit, I can obtain cash advances or loans but those loans or cash advances are needed for my travel representation allowance, under a fringe benefit plan approved by the BSP like car loan, housing programetc. Other than those items, those not covered by the fringe benefit plan approved by BSP, you must comply with the requirements.
Special Commercial Laws - Finals EH 403 [2011 2012]
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2. Loans and credit accommodations which are secured by assets considered again as non-risk. - So, even if I am a director I can borrow but my loan must be secured by non-risk assets (hold-out deposits, loans secured by government secured securities or LC with margin deposit).
Related Interest? No definition under the law. - What about a spouse or child of the director, are they covered by DOSRI? Yes. So, spouse, relative within the first degree of consanguinity or affinity are considered as DOSRI. - A corporation or association in which the director is also a director, or the spouse or child - that is still related interest.
What is the purpose of DOSRI limitation? - To prevent a substantial portion of the bank funds from being borrowed by DOSRI. - There is a danger that instead of makingthe fundsavailable to legitimate borrowers,those funds will all be borrowed by the DOSRI. This is what happened to Legacy.
Take note of two things, (1) the requirements [written approval + waiver of secrecy] and (2) the individual limit.
Section 37.Loans and Other Credit Accommodations Against Real Estate. - Except as the Monetary Board may otherwise prescribe, loans and other credit accommodations against real estate shall not exceed seventy-five percent (75%) of the appraised value of the respective real estate security, plus sixty percent (60%) of the appraised value of the insured improvements, and such loans may be made to the owner of the real estate or to his assignees. (78a)
Section 38.Loans And Other Credit Accommodations on Security of Chattels and Intangible Properties. - Except as the Monetary Board may otherwise prescribe, loans and other credit accommodations on security of chattels and intangible properties such as, but not limited to, patents, trademarks, trade names, and copyrights shall not exceed seventy-five percent (75%) of the appraised value of the security, an such loans and other credit accommodation may be made to the title- holder of the chattels and intangible properties or his assignees.
Section 37 provides for a limitation on the amount of the loan that the bank may extend if the collateral is a real property.
For how much or to what extent can the bank grant the loan? - In case of a real estate it shall not exceed 75% of the FMV or appraised value of the property. Ex. land. - In case of improvements shall not exceed 60%. - It could be lower but it could not be higher than those amounts.
Thats why if we have a collateral and it was appraised, not 100% of that will be the loanable amount. It will only be to the extent of 75% or 60%.
Section 38.
What if secured by intangible properties? - Now in case of intangibles, like patents, trademarks, trade names, copyrightit shall not exceed 75% of the appraised value of the security.
SECTION 39. Grant and Purpose of Loans and Other Credit Accommodations. A bank shall grant loans and other credit accommodations only in amounts and for the periods of time essential for the effective completion of the operations to be financed. Such grant of loans and other credit accommodations shall be consistent with safe and sound banking practices. (75a)
The purpose of all loans and other credit accommodations shall be stated in the application and in the contract between the bank and the borrower. If the bank finds that the proceeds of the loan or other credit accommodation have been employed, without its approval, for purposes other than those agreed upon with the bank, it shall have the right to terminate the loan or other credit accommodation and demand immediate repayment of the obligation.
Every time you apply for a loan, the purpose of the loan or any credit accommodation should be stated in the application form.
Why? - The purpose shall be considered by the bank in determining the terms or the conditions of loan, whether they would be consistent with the purpose for obtaining the loan. - Is the amount to be loaned reasonablethe termsconditionsmaturityare they reasonableetc.
If the borrower uses the proceeds of the loan different from the intended purpose, then the bank has the right to TERMINATE the loan and require immediate repayment. So the payment will now be accelerated. Special Commercial Laws - Finals EH 403 [2011 2012]
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- Why? Because that is a breach of your contract. The purpose is stated in the loan application form and the application form forms part of the terms and conditions of the contract.
SECTION 40. Requirement for Grant of Loans or Other Credit Accommodations. Before granting a loan or other credit accommodation, a bank must ascertain that the debtor is capable of fulfilling his commitments to the bank.
Toward this end, a bank may demand from its credit applicants a statement of their assets and liabilities and of their income and expenditures and such information as may be prescribed by law or by rules and regulations of Monetary Board to enable the bank to properly evaluate the credit application which includes the corresponding financial statements submitted for taxation purposes to the Bureau of Internal Revenue. Should such statements prove to be false or incorrect in any material detail, the bank may terminate any loan or other credit accommodation granted on the basis of said statements and shall have the right to demand immediate repayment or liquidation of the obligation.
In formulating rules and regulations under this Section, the Monetary Board shall recognize the peculiar characteristics of microfinancing, such as cash flow-based lending to the basic sectors that are not covered by traditional collateral. (76a)
DOCUMENTARY REQUIREMENTS WHEN YOU APPLY FOR A LOAN FROM THE BANK.
So the bank would require from you certain documents. Normally, these documents would consist of income tax return, financial statements. If you are an individual, a copy of your payslip or withholding tax certificate.
Aside from that, some banks, like especially if its a big loan, like a business loan, would require you to submit a financial study or a feasibility study. - How feasible is this project of yours? Are you sure that you can pay the bank? What is the rate of return? What is the pay-back period? Etc.
So the bank would like to know its customer before it grants a loan.
Now, in relation to granting of loans, there are certain security measures, applied by the bank to ensure that it can collect. We have what you call JSS Practice in the banking industry, or the Joint and Solidary Signatories. - Its common in promissory notes. I jointly and severally promise to pay. - Whats the reason for the JSS or the joint and solidary signatories? o Especially corporations, normally in corporations, there is an authorized representative who will sign, either the president or the CEO. But aside from that the bank would usually require a major stockholder of the corporation who is a borrower to sign a surety statement or in a JSS capacity. o The purpose of requiring joint and solidary signatories or requiring security statements is that in the event the assets of the corporation would not be sufficient to pay off the loan, the bank can still go after the other joint and several or solidary signatories. So when the assets of the corporation are exhausted, the bank can go after the assets of the major stockholders by virtue of the JSS or the suretyship agreement.
SECTION 43. Authority to Prescribe Terms and Conditions of Loans and Other Credit Accommodations. The Monetary Board may, similarly, in accordance with the authority granted to it in Section 106 of the New Central Bank Act, and taking into account the requirements of the economy for the effective utilization of long- term funds, prescribe the maturities, as well as related terms and conditions for various types of bank loans and other credit accommodations. Any change by the Board in the maximum maturities shall apply only to loans and other credit accommodations made after the date of such action.
The Monetary Board shall regulate the interest imposed on microfinance borrowers by lending investors and similar lenders, such as, but not limited to, the unconscionable rates of interest collected on salary loans and similar credit accommodations. (78a)
INTEREST RATES
As a rule, no interest is due unless it is stipulated in writing.
Now, is it valid, this common practice of some banks to stipulate in the promissory note these what you call escalation clauses regarding interest that the bank has the right to increase during the period the term of the loan, the right to increase the interest rates? - NO. Read case below.
CASE:
There was a case involving PNB wherein in the loan agreement, there is a stipulation or there is an escalation clause. Now pursuant to that escalation clause, the PNB, without informing the borrower, unilaterally increased the interest rates. Special Commercial Laws - Finals EH 403 [2011 2012]
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Lets say at the time the loan was entered into was 10%. After 2 years, PNB unilaterally increased it 12%. The justification of the PNB is that in the promissory note there is already an escalation clause. So according to PNB, it is already agreed between the parties. During the time that the promissory note was made, there was already an escalation clause that from time to time, PNB may increase the interest rates. So pursuant to that, without informing the borrower, it increased the interest rate to 12%. The borrower now comes to court alleging that increase is not valid.
Issue: whether or not PNB has the right to unilaterally increase the interest rate pursuant to the escalation clause stated in the promissory note without informing the borrower
SC: NO. Whats the reason?
An escalation clause per se is valid. Although there is an escalation clause, before PNB can apply the increase, it must first inform the borrower. It must obtain the consent of the borrower.
The SC said that the unilateral increase in the interest rates violates the principle on mutuality of contracts provisions in the contract cannot be left alone to the discretion of one of the parties.
So although the escalation clause was valid, but everytime you increase in interest rates, the bank should at least inform, or obtain the consent of the borrower. Since you did not obtain the consent of the borrower, the increase is not valid.
If the borrower does not consent with the increase, the hands of PNB will be tied. But not necessarily that it cannot increase because you could not also say that you could not increase because its in the escalation clause. What is only required is that you inform the borrower. Because you agreed that PNB has the right to increase the interest rates.
Now also, still on interest rates, like for example the promissory note provides that the interest rate will be 20% per annum. If a case is filed court, is it valid for the court to say that the interest rate should only be 12%, the legal interest? Is it valid for the court to say that it should not be 20% but it should be the legal rate 12%? - There is no more usury law. So the courts said that the interest rates agreed upon by the parties is valid and binding. The only time that it will be stricken down is when the rates are already unconscionable or shocking to the conscience of man. - But as long as the interest rates are valid, that is binding between the parties. The court cannot substitute the agreement of the parties with its own. - If there was no stipulation, apply the legal rate of 12%.
How about time deposits? - In time deposits, we agree on a certain period. Within a certain period, the bank cannot increase or decrease. But after that period, ofcourse the bank can adjust the interest rates. - So whatever that rate you agreed at the time you placed your time deposit, that should be applied all throughout the 120 days. If after that the interest rates will change, then it can.
SECTION 44. Amortization on Loans and Other Credit Accommodations. The amortization schedule of bank loans and other credit accommodations shall be adapted to the nature of the operations to be financed.
In case of loans and other credit accommodations with maturities of more than five (5) years, provisions must be made for periodic amortization payments, but such payments must be made at least annually: Provided, however, That when the borrowed funds are to be used for purposes which do not initially produce revenues adequate for regular amortization payments therefrom, the bank may permit the initial amortization payment to be deferred until such time as said revenues are sufficient for such purpose, but in no case shall the initial amortization date be later than five (5) years from the date on which the loan or other credit accommodation is granted.
In case of loans and other credit accommodations to microfinance sectors, the schedule of loan amortization shall take into consideration the projected cash flow of the borrower and adopt this into the terms and conditions formulated by banks.
AMORTIZATION
For how long should the loan be amortized? - It depends. The amortization schedule or the term of the loan should depend on the nature of the operations to be financed. Thats why in your application, you have to state the purpose.
GENERAL RULES: Special Commercial Laws - Finals EH 403 [2011 2012]
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If the term is more than 5 years, the amortization must be at least annually. Payment cannot be made once, or twice. If the term is less than 5 years, is it possible for the bank to prescribe that the amortization can be made just once, or twice? - Yes. Theres no prohibition. If less than 5 years, it is possible for the bank to stipulate that the payment could be made once or twice. The requirement is only with respect to loans with maturities of more than 5 years.
EXCEPTION:
Even if the term is for more than 5 years, but the borrowed funds are to be used for purposes which do not initially produce revenues adequate for regular amortization payments therefrom - Projects with long gestation period. Ex. Construction, plating trees. - So you are allowed to defer the amortization. - The amortization can start 3 years after, etc. But in no case shall it exceed five (5) years from the date on which the loan or other credit accommodation is granted.
SECTION 47. Foreclosure of Real Estate Mortgage. In the event of foreclosure, whether judicially or extrajudicially, of any mortgage on real estate which is security for any loan or other credit accommodation granted, the mortgagor or debtor whose real property has been sold for the full or partial payment of his obligation shall have the right within one year after the sale of the real estate, to redeem the property by paying the amount due under the mortgage deed, with interest thereon at the rate specified in the mortgage, and all the costs and expenses incurred by the bank or institution from the sale and custody of said property less the income derived therefrom.
However, the purchaser at the auction sale concerned whether in a judicial or extrajudicial foreclosure shall have the right to enter upon and take possession of such property immediately after the date of the confirmation of the auction sale and administer the same in accordance with law. Any petition in court to enjoin or restrain the conduct of foreclosure proceedings instituted pursuant to this provision shall be given due course only upon the filing by the petitioner of a bond in an amount fixed by the court conditioned that he will pay all the damages which the bank may suffer by the enjoining or the restraint of the foreclosure proceeding.
Notwithstanding Act 3135, juridical persons whose property is being sold pursuant to an extrajudicial foreclosure, shall have the right to redeem the property in accordance with this provision until, but not after, the registration of the certificate of foreclosure sale with the applicable Register of Deeds which in no case shall be more than three (3) months after foreclosure, whichever is earlier. Owners of property that has been sold in a foreclosure sale prior to the effectivity of this Act shall retain their redemption rights until their expiration. (78a)
FORECLOSURE OF ESTATE MORTGAGE
Now under GBL, a bank can either foreclose the property judicially or extrajudicially.
When can you go through extrajudicial foreclosure? - You can only go through extrajudicial foreclosure if it is provided in the agreement. The real estate mortgage should provide that in case of default, they should go through extrajudicial foreclosure. Otherwise, judicial foreclosure.
Now, how can a borrower get back his property? - Extrajudicial foreclosure RIGHT OF REDEMPTION - Judicial foreclosure EQUITY OF REDEMPTION
Extrajudicial foreclosure RIGHT OF REDEMPTION
In extrajudicial foreclosure, you go to court and the court will order the borrower to pay. If the borrower is able to pay the amount of the loan within that period, then he can get back the property and the foreclosure will not proceed.
In case of right of redemption, the right to redeem the property is within 1 year from registration of certificate of sale, and not from sale.
Judicial foreclosure EQUITY OF REDEMPTION
By paying the amount due within a period of not less than 90 nor more than 120 daysfrom the entry of the final judgment.
Rules that we should keep in mind:
GENERAL RULE: in judicial foreclosure, there is no right of redemption, only EQUITY OF REDEMPTION. EXCEPTION: if the mortgagee is a bank or a banking institution, there is a RIGHT OF REDEMPTION even if it is a judicial foreclosure. - So, within 1 year from date of registration of certificate of sale. Special Commercial Laws - Finals EH 403 [2011 2012]
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- So here, the mortgagee is the bank.
GENERAL RULE:in right of redemption (extrajudicial foreclosure), period to redeems is 1 year from the registration of the certificate of sale. EXCEPTION:if the mortgagor is a juridical person, then the period for the mortgagor to exercise the right of redemption is shortened, that is, until, but not after, the registration of the certificate of foreclosure sale with the applicable Register of Deeds which in no case shall be more than three (3) months after foreclosure, whichever is earlier. - So here, the mortgagor is a juridical person. - If non-juridical person, like individual, we go back to 1 year. - Reckoning point: 1 year from the REGISTRATION OF THE CERTIFICATE OF SALE 3 months AFTER FORECLOSURE [SALE]. - 1 year from registration, not sale, because the court still has to confirm the foreclosure sale. So it must be registration of the certificate of sale for the general rule.
What is difference between the REGISTRATION of the certificate of sale and the CONFIRMATION of the certificate of sale? - It is the court who confirms the sale. The point there is not from the sale but from the confirmation of the sale. Because it is still possible that although there is already a foreclosure, that the sale will be annulled because there are grounds to annul the foreclosure sale, e.g. the foreclosure sale was not valid, like there was no proper notice, the bidding was not proper etc. So thats why you need confirmation of sale. - So from the time of confirmation of sale, that is also the time of registration of sale or the issuance of the certificate of sale. So registration of sale comes after the confirmation of sale.
TAKE NOTE: whichever is earlier - the registration of the certificate of foreclosure sale with the applicable Register of Deeds which in no case shall be more than three (3) months after foreclosure,whichever is earlier - You cannot redeem it after registration of foreclosure sale - If registration of the certificate is done 1 month after the foreclosure sale, then you can no longer redeem. You must redeem it BEFORE the registration, or in 3 months, whichever is earlier. - So, if you are the buyer and the borrower is a juridical person, register immediately so that you can consolidate your ownership.
SECTION 47. Foreclosure of Real Estate Mortgage. xxx by paying the amount due under the mortgage deed, with interest thereon at the rate specified in the mortgage, and all the costs and expenses incurred by the bank or institution from the sale and custody of said property less the income derived therefrom. xxx
REDEMPTION PRICE
As to the redemption price, what would govern is the general banking law if the mortgagee again is a bank.
Under the GBL, the redemption price is equivalent to the amount due, interests, costs and expenses from the sale and custody of said property less the income derived therefrom
It says, interest thereon at the rate specified in the mortgage. If the mortgage specifies for penalties and surcharge, then that is included.
SECTION 47. Foreclosure of Real Estate Mortgage. xxx However, the purchaser at the auction sale concerned whether in a judicial or extrajudicial foreclosure shall have the right to enter upon and take possession of such property immediately after the date of the confirmation of the auction sale and administer the same in accordance with law. Any petition in court to enjoin or restrain the conduct of foreclosure proceedings instituted pursuant to this provision shall be given due course only upon the filing by the petitioner of a bond in an amount fixed by the court conditioned that he will pay all the damages which the bank may suffer by the enjoining or the restraint of the foreclosure proceeding. Xxx
POSSESSION PRIOR TO REDEMPTION
Prior to redemption, who has possession? - The provision states that the PURCHASER shall have the right to enter upon and take possession of the property immediately after the date of the confirmation of the auction sale and administer the same in accordance with law. - The point is the purchaser has the right to enter and take possession of the property.
Is this different from your ordinary foreclosure? - Yes. In ordinary foreclosure, the possession remains with the mortgagor. - Here, the purchaser shall have the right to enter and take possession of the property immediately after the confirmation of the auction sale. So Special Commercial Laws - Finals EH 403 [2011 2012]
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thats the difference. The purchaser has the right to take possession of the property.
So what if its a bank? Whats so special with banks? - The purchaser is given a better right compared to a purchaser in an ordinary foreclosure not involving banks so as to encourage bidders in foreclosures of properties from banks. - If we apply GBL, the mortgagee will always be a bank.
SECTION 51. Ceiling on Investments in Certain Assets. Any bank may acquire real estate as shall be necessary for its own use in the conduct of its business: Provided, however, That the total investment in such real estate and improvements thereof, including bank equipment, shall not exceed fifty percent (50%) of combined capital accounts: Provided, further, That the equity investment of a bank in another corporation engaged primarily in real estate shall be considered as part of the bank's total investment in real estate, unless otherwise provided by the Monetary Board.
CEILING ON INVESTMENTS IN CERTAIN ASSETS
RULE: the bank can acquire real property which is necessary for the conduct of its business. - It can acquire land and building on which its operations are conducted. BUT in no case shall the total investment in a bank in real estate exceed 50% of the combined capital accounts. - Combined capital accounts refer to your net worth: capital, equity, retained earnings, etc.
Now take note in computing 50% limit, you also have to include the equity investment of a bank in another corporation engaged primarily in real estate. - So aside from his own ownership of real estate, if the bank also makes an investment in another entity which is engaged primarily in real estate, that should be considered in the computation of 50%.
SECTION 52. Acquisition of Real Estate by Way of Satisfaction of Claims. Notwithstanding the limitations of the preceding Section, a bank may acquire, hold or convey real property under the following circumstances: 52.1. Such as shall be mortgaged to it in good faith by way of security for debts; 52.2. Such as shall be conveyed to it in satisfaction of debts previously contracted in the course of its dealings; or 52.3. Such as it shall purchase at sales under judgments, decrees, mortgages, or trust deeds held by it and such as it shall purchase to secure debts due it. Any real property acquired or held under the circumstances enumerated in the above paragraph shall be disposed of by the bank within a period of five (5) years or as may be prescribed by the Monetary Board: Provided, however, That the bank may, after said period, continue to hold the property for its own use, subject to the limitations of the preceding Section.
Under Section 52, these are the instances wherein the bank can acquire real property or real estate although this is not used in the conduct of its business. a. When the property is mortgaged as a security of debts; or b. When the property is conveyed in satisfaction of debts; or c. In case of purchases at sales under judgment, decrees, mortgages or trust deeds held by it.
For example in a foreclosure sale, there is no other bidder, only the bank. In that way, the bank acquires the real property.
Now what is the requirement if a bank acquires real property under these circumstances? 1. The bank must, within a period of 5 years, dispose the same. - If you go to a bank you can see there a list of acquired real properties. These are properties acquired by the bank by way of foreclosure or in payment of debt. - They say if you want to buy real properties which are cheaper, you go to the list of foreclosed properties of the bank because it is cheaper. - But the bank MUST dispose these properties within a period of 5 years. - If it cannot dispose it within 5 years, it can continue to hold the property but it will now be subject to the limitation of the preceding section. - Meaning it is now included in the computation of the 50% limit (ceiling on investments). 2. Another requirement is that the bank must post at all times in conspicuous places a list of these acquired properties.
SECTION 53. Other Banking Services. In addition to the operations specifically authorized in this Act, a bank may perform the following services: 53.1. Receive in custody funds, documents and valuable objects; 53.2. Act as financial agent and buy and sell, by order of and for the account of their customers, shares, evidences of indebtedness and all types of securities; 53.3. Make collections and payments for the account of others and perform Special Commercial Laws - Finals EH 403 [2011 2012]
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such other services for their customers as are not incompatible with banking business; 53.4. Upon prior approval of the Monetary Board, act as managing agent, adviser, consultant or administrator of investment management/advisory/consultancy accounts; and 53.5. Rent out safety deposit boxes. The bank shall perform the services permitted under Subsections 53.1, 53.2, 53.3 and 53.4 as depositary or as an agent. Accordingly, it shall keep the funds, securities and other effects which it receives duly separate from the bank's own assets and liabilities. The Monetary Board may regulate the operations authorized by this Section in order to ensure that such operations do not endanger the interests of the depositors and other creditors of the bank. In case a bank or quasi-bank notifies the Bangko Sentral or publicly announces a bank holiday, or in any manner suspends the payment of its deposit liabilities continuously for more than thirty (30) days, the Monetary Board may summarily and without need for prior hearing close such banking institution and place it under receivership of the Philippine Deposit Insurance Corporation.
These are the other income generating activities of banks aside from the usual deposit taking and lending activities.
o Receive in custody funds, documents and valuable objects;
o Act as financial agent and buy and sell, by order of and for the account of their customers, shares, evidences of indebtedness - Now it mentioned shares. So if the bank acts as a financial agent in buying and selling shares, it is like it is being a broker. - So if the bank acts as a security broker, does it need SEC license? YES o It will buy or sell. It will not issue. So like a broker. o There is amemorandum of agreement between the BSP and the SECwhich states that if a bank acts as a broker, (buying and selling securities) it needs license from the SEC. The bank is under the supervision of the BSP but it still needs to get a license.
3. Make collections and payments for the account of others and perform such other services for their customers as are not incompatible with banking business - You go to a bank, the bank now would accept payments for your bills(PLDT, VECO, etc.) - Now what does the bank get in accepting payments from other entities? o They dont charge us service charges. But there is an agreement between, lets say PLDT, VECO, MERALCO, that there will be a service charge. o Aside from that, the bank gets cash. They can use the money. Its not when someone pays for PLDT, they will immediately remit to PLDT. There is a certain period of time. Like 1 week, that is long actually if they loan the money. They already get interest.
3. Upon prior approval of the Monetary Board, act as managing agent, adviser, consultant or administrator of investment management/advisory/consultancy accounts; and
4. Rent out safety deposit boxes. The bank shall perform the services permitted under Subsections 53.1, 53.2, 53.3 and 53.4 as depositary or as an agent. Accordingly, it shall keep the funds, securities and other effects which it receives duly separate from the bank's own assets and liabilities. - Take note, the bank can rent out safety deposit boxes.
In Section 53.1 53.4, the bank here in performing these services is considered as a depositary or as an agent. And take note, these services are performed by the bank in a fiduciary character. These are still fiduciary in nature. - Meaning the bank must exercise the highest degree of diligence.
SECTION 54. Prohibition to Act as Insurer. A bank shall not directly engage in insurance business as the insurer.
So, the bank cannot insure.
Can it INVEST in an insurance company? - Yes because that is an allied enterprise. But directly, he cannot be an insurer.
Why? - The risk involved in insurance is far greater than banking the capitalization requirements, the policies, etc. - We dont have what we call, unlike in other countries, bank cashsurance, a bank at the same time insurance. Here, that cannot be. - But ofcourse you can invest in an insurance company.
SECTION 55. Prohibited Transactions. 55.1. No director, officer, employee, or agent of any bank shall Special Commercial Laws - Finals EH 403 [2011 2012]
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(a) Make false entries in any bank report or statement or participate in any fraudulent transaction, thereby affecting the financial interest of, or causing damage to, the bank or any person; (b) Without order of a court of competent jurisdiction, disclose to any unauthorized person any information relative to the funds or properties in the custody of the bank belonging to private individuals, corporations, or any other entity: Provided, That with respect to bank deposits, the provisions of existing laws shall prevail; (c) Accept gifts, fees or commissions or any other form of remuneration in connection with the approval of a loan or other credit accommodation from said bank; (d) Overvalue or aid in overvaluing any security for the purpose of influencing in any way the actions of the bank or any bank; or (e) Outsource inherent banking functions.
PROHIBITED TRANSACTIONS
No director, officer, employee, or agent of any bank shall
1. Make false entries in any bank report or statement. - Of course, because that would distort the true financial condition of the bank. - Ex. Alteration of the figures to show that the loans are not past due.
2. Without court order of competent jurisdiction, disclose to any unauthorized person any information relative to funds or properties. - Now this refers now to secrecy of bank deposits. - GR: you cannot disclose. EXCEPTION: when there is a court order. o Of course there are more exceptions when we discuss later on law on secrecy of bank deposits. o So just an overview what are some of these exceptions? a. There is consent b. Impeachment c. In case of public official being sued for bribery and dereliction. d. When it is the subject matter of litigation e. In case of violation of AMLA f. Anti-graft and corrupt practices act g. In the conduct of the BSP of examination of banks.disclose h. In BIR cases, the commissioner of internal revenue can inquire in these instances: i. if you apply for compromise on the ground of financial incapacity ii. In estate tax, the commissioner can examine deposits to determine gross estate iii. In case of dormant accounts which has been dormant for atleast 10 years. The bank is required to report the same to the treasurer of the RP. Why? (escheat) If there are no heirs, in the order of intestate succession, if it is dormant for 10 years meaning nobody is interested, there are no heirs, it goes to the state.
3. A bank officer shall not accept gifts, fees or commissions in connection with the approval of a loan. - The reason is that the loan should be approved based on objective considerations. To avoid conflict of interest.
4. A bank officer should not overvalue or aid in overvaluing any security.
5. A bank officer and the bank itself cannot outsource inherent banking functions. - What are considered inherent banking functions that you cannot outsource? o Tellering services, the handling of deposit transactions, those are what we call inherent banking functions. So under the law these functions cannot be outsourced. - Can you outsource janitorial or security services? o Yes. You can even outsource your IT system, printing of checks, printing of bank documents. o Those can be outsourced. Only those inherent banking functions cannot be outsourced. - Whats the purpose? o To uphold the secrecy of bank deposits. o Imagine your tellers are casual, every 5 months they are changed, so there is a tendency that there is disclosure of bank deposits. You know Mr. so and so has large amount of deposit or Mr. so and so always draw checks that will bounce. Although we have the secrecy of bank deposits but have you tried calling a bank and you ask about your bank account, they actually answer you. Ex: I would like to ask if my allowance was credited to my account already? Or whether this check is already cleared? So they entertain inquiries. How do we uphold secrecy of bank deposits now? As a rule, it is not among the exceptions. The only exception is there is a written consent. Special Commercial Laws - Finals EH 403 [2011 2012]
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But why do some bank personnel entertain calls over the phone? But before they do that they ask you some personal information.
55.2. No borrower of a bank shall (a) Fraudulently overvalue property offered as security for a loan or other credit accommodation from the bank; (b) Furnish false or make misrepresentation or suppression of material facts for the purpose of obtaining, renewing, or increasing a loan or other credit accommodation or extending the period thereof; (c) Attempt to defraud the said bank in the event of a court action to recover a loan or other credit accommodation; or (d) Offer any director, officer, employee or agent of a bank any gift, fee, commission, or any other form of compensation in order to influence such persons into approving a loan or other credit accommodation application.
We have Section 55.2, prohibited acts of borrowers this time. If you will look at the prohibited acts basically the same on the prohibited acts of directors and officers because they say it takes two to tango. So if the officer is prohibited, the borrower must be prohibited as well.
55.3. No examiner, officer or employee of the Bangko Sentral or of any department, bureau, office, branch or agency of the Government that is assigned to supervise, examine, assist or render technical assistance to any bank shall commit any of the acts enumerated in this Section or aid in the commission of the same. (87-Aa) The making of false reports or misrepresentation or suppression of material facts by personnel of the Bangko Sentral ng Pilipinas shall constitute fraud and shall be subject to the administrative and criminal sanctions provided under the New Central Bank Act.
And of course, if the bank officers and borrowers are prohibited, the BSP officers (the regulators)must also be prohibited.
55.4. Consistent with the provisions of Republic Act No. 1405, otherwise known as the Banks Secrecy Law, no bank shall employ casual or nonregular personnel or too lengthy probationary personnel in the conduct of its business involving bank deposits.
Section 55.4, still in upholding the secrecy of bank deposits, the bank is prohibited from employing casual or non-regular personnel, or too lengthy probationary personnel in the conduct of its business involving bank deposits.
So again, same discussion in the inherent banking functions. Bank tellers must be regular employees, not casual.
Reason? Regular employees are presumed to be more loyal and more trust worthy than casual employees. If casual, there is a tendency that they would disclose bank secrets.
SECTION 56. Conducting Business in an Unsafe or Unsound Manner. In determining whether a particular act or omission, which is not otherwise prohibited by any law, rule or regulation affecting banks, quasi-banks or trust entities, may be deemed as conducting business in an unsafe or unsound manner for purposes of this Section, the Monetary Board shall consider any of the following circumstances: 56.1. The act or omission has resulted or may result in material loss or damage, or abnormal risk or danger to the safety, stability, liquidity or solvency of the institution; 56.2. The act or omission has resulted or may result in material loss or damage or abnormal risk to the institution's depositors, creditors, investors, stockholders or to the Bangko Sentral or to the public in general; 56.3. The act or omission has caused any undue injury, or has given any unwarranted benefits, advantage or preference to the bank or any party in the discharge by the director or officer of his duties and responsibilities through manifest partiality, evident bad faith or gross inexcusable negligence; or 56.4. The act or omission involves entering into any contract or transaction manifestly and grossly disadvantageous to the bank, quasi-bank or trust entity, whether or not the director or officer profited or will profit thereby. Whenever a bank, quasi-bank or trust entity persists in conducting its business in an unsafe or unsound manner, the Monetary Board may, without prejudice to the administrative sanctions provided in Section 37 of the New Central Bank Act, take action under Section 30 of the same Act and/or immediately exclude the erring bank from clearing, the provisions of law to the contrary notwithstanding.
CONDUCTING BUSINESS IN AN UNSAFE AND UNSOUND MANNER
So the bank must at all times conduct its business in a safe and sound manner.
So when will it be considered as an unsafe and unsound manner? - If you violate any of the provisions of the GBL, it will result to a loss or damage, etc. It will involve liquidity or solvency problems.It is very general. - Failing to maintain the ratio. Or exceeding the prescribed limits.
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SECTION 57. Prohibition on Dividend Declaration. No bank or quasi-bank shall declare dividends greater than its accumulated net profits then on hand, deducting therefrom its losses and bad debts. Neither shall the bank nor quasi-bank declare dividends, if at the time of declaration: 57.1 Its clearing account with the Bangko Sentral is overdrawn; or 57.2 It is deficient in the required liquidity floor for government deposits for five (5) or more consecutive days; or 57.3 It does not comply with the liquidity standards/ratios prescribed by the Bangko Sentral for purposes of determining funds available for dividend declaration; or 57.4 It has committed a major violation as may be determined by the Bangko Sentral. (84a)
PROHIBITION ON DECLARATION OF DIVIDENDS
To what extent can a bank declare dividends? - It shall not be greater than its accumulated net profits on hand after deducting its losses and bad debts. - Basically the same as that in the corporation code. The provision under corporation code says it can only declare dividends to the extent of its unrestricted retained earnings.
When we say accumulated net profits, we refer to the retained earnings. So basically the same principle. You must have accumulated net profits.
And even if you have accumulated net profits, it cannot declare dividends if at the time of the dividend declaration, the bank is violating or is under the following circumstances: 1. Its clearing account with the Bangko Sentral is overdrawn; or 2. It is having deficiency in its liquidity requirements for 5 or more consecutive days; or 3. It does not comply with the liquidity standards/ratios - Those different ratios that we have discussed before, the percentages. 4. It has committed a major violation as determined by the BSP.
SECTION 58. Independent Auditor. The Monetary Board may require a bank, quasi-bank or trust entity to engage the services of an independent auditor to be chosen by the bank, quasi-bank or trust entity concerned from a list of certified public accountants acceptable to the Monetary Board. The term of the engagement shall be as prescribed by the Monetary Board which may either be on a continuing basis where the auditor shall act as resident examiner, or on the basis of special engagements, but in any case, the independent auditor shall be responsible to the bank's, quasi-bank's or trust entity's board of directors. A copy of the report shall be furnished to the Monetary Board. The Monetary Board may also direct the board of directors of a bank, quasi-bank, trusty entity and/or the individual members thereof, to conduct, either personally or by a committee created by the board, an annual balance sheet audit of the bank, quasi-bank or trust entity to review the internal audit and control system of the bank, quasi-bank or trust entity and to submit a report of such audit. (6-Da)
INDEPENDENT AUDITOR
This is the same requirement as that of an ordinary corporation that at the end of the year you must hire an independent auditor.
What is the purpose of an independent auditor? - Of course banks have internal auditors. - These independent auditors are your external auditors. - Every year a corporation has to hire an external auditor because you have reportorial requirements to the BIR and to the SEC. - But in case of a bank, an independent auditor does more than that. He has a wider scope of responsibility. Because an independent auditor hired by a bank has to report to the BSP. He has to submit a report to the BSP any matter adversely affecting the condition of the bank or soundness of the bank. - And take note, if that independent auditor fails to report to the BSP any irregularities involving the bank, there is a possibility that that independent auditor will be blacklisted by the BSP. BSP has a list of independent auditors whichcan be hired by banks.
If a bank fails, the public normally blames the BSP. Since the BSP conducts examinations only once a year, its not an assurance that the BSP would make a timely discovery of the irregularities made by the bank. By the time the BSP discovers, it might already be too late. So to help BSP, they require the banks to hire an independent auditor who is tasked to submit a report to the BSP if ever he discovers irregularities.
So the BSP is trying to share the burden or the blame with the independent auditor.
SECTION 60. Financial Statements. Every bank, quasi-bank or trust entity shall submit to the appropriate supervising and examining department of the Bangko Sentral financial statements in such form and frequency as may be prescribed by Special Commercial Laws - Finals EH 403 [2011 2012]
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the Bangko Sentral. Such statements, which shall be as of a specific date designated by the Bangko Sentral, shall show the actual financial condition of the institution submitting the statement, and of its branches, offices, subsidiaries and affiliates, including the results of its operations, and shall contain such information as may be required in Bangko Sentral regulations. (n)
SECTION 61. Publication of Financial Statements. Every bank, quasi-bank or trust entity, shall publish a statement of its financial condition, including those of its subsidiaries and affiliates, in such terms understandable to the layman and in such frequency as may be prescribed by the Bangko Sentral, in English or Filipino, at least once every quarter in a newspaper of general circulation in the city or province where the principal office, in the case of a domestic institution, or the principal branch or office in the case of a foreign bank, is located, but if no newspaper is published in the same province, then in a newspaper published in Metro Manila or in the nearest city or province. The Bangko Sentral may by regulation prescribe the newspaper where the statements prescribed herein shall be published. The Monetary Board may allow the posting of the financial statements of a bank, quasi-bank or trust entity in public places it may determine, in lieu of the publication required in the preceding paragraph, when warranted by the circumstances. Additionally, banks shall make available to the public in such form and manner as the Bangko Sentral may prescribe the complete set of its audited financial statements as well as such other relevant information including those on enterprises majority-owned or controlled by the bank, that will inform the public of the true financial condition of a bank as of any given time. In periods of national and/or local emergency or of imminent panic which directly threaten monetary and banking stability, the Monetary Board, by a vote of at least five (5) of its members, in special cases and upon application of the bank, quasi- bank or trust entity, may allow such bank, quasibank or trust entity to defer for a stated period of time the publication of the statement of financial condition required herein. (n)
FINANCIAL STATEMENTS
Just like any other corporation, a bank or a quasi-bank must submit financial statements to the BSP.
Whats the purpose of the financial statement? - To show the actual financial condition of the institution, its offices, subsidiaries and affiliates.
These financial statements also need to be published at least once every quarter in a newspaper of general circulation in the city or province where the principal office (in the case of a domestic institution) or the principal branch or office (in the case of a foreign bank) is located, but if no newspaper is published in the same province, then in a newspaper published in Metro Manila or in the nearest city or province
SECTION 62. Publication of Capital Stock. A bank, quasi-bank or trust entity incorporated under the laws of the Philippines shall not publish the amount of its authorized or subscribed capital stock without indicating at the same time and with equal prominence, the amount of its capital actually paid up. No branch of any foreign bank doing business in the Philippines shall in any way announce the amount of the capital and surplus of its head office, or of the bank in its entirety without indicating at the same time and with equal prominence the amount of the capital, if any, definitely assigned to such branch. In case no capital has been definitely assigned to such branch, such fact shall be stated in, and shall form part of the publication. (82)
PUBLICATION OF CAPITAL STOCK Just read
Sec. 63. Settlement of Disputes. The provisions of any law to the contrary notwithstanding, the Bangko Sentral shall be consulted by other government agencies or instrumentalities in actions or proceedings initiated by or brought before them involving controversies in banks, quasi-banks or trust entities arising out of and involving relations between and among their directors, officers or stockholders, as well as disputes between any or all of them and the bank, quasi- bank or trust entity of which they are directors, officers or stockholders.
SETTLEMENT OF DISPUTES
In the resolution of disputes, the BSP shall be consulted by other government agencies or instrumentalities.
SECTION 64. Unauthorized Advertisement or Business Representation. No person, association, or corporation unless duly authorized to engage in the business of a bank, quasi-bank, trust entity, or savings and loan association as defined in this Act, or other banking laws, shall advertise or hold itself out as being engaged in the business of such bank, quasi-bank, trust entity, or association, or use in connection with its business title, the word or words "bank", "banking", "banker", "quasi-bank", "quasibanking", "quasi-banker", "savings and loan association", "trust corporation", "trust company" or words of similar import or transact in any manner the business Special Commercial Laws - Finals EH 403 [2011 2012]
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of any such bank, corporation or association. (6)
As discussed earlier, if you are not a bank, you are not allowed to use the word "bank", "banking", "banker", "quasi-bank". Except if you are a blood bank or a sperm bank.
Sections 67, 68, 69, 70,talk about conservatorship, liquidation and receivership. These are the same things that we have discussed under the New Central Bank Act. As you can see, these provisions make reference to the provisions of the New Central Bank Act.
FOREIGN BANKS (Sections 72 78)
SECTION 73. Acquisition of Voting Stock in a Domestic Bank. Within seven (7) years from the effectivity of this Act and subject to guidelines issued pursuant to the Foreign Banks Liberalization Act, the Monetary Board may authorize a foreign bank to acquire up to one hundred percent (100%) of the voting stock of only one (1) bank organized under the laws of the Republic of the Philippines. Within the same period, the Monetary Board may authorize any foreign bank, which prior to the effectivity of this Act availed itself of the privilege to acquire up to sixty percent (60%) of the voting stock of a bank under the Foreign Banks Liberalization Act and the Thrift Banks Act, to further acquire voting shares of such bank to the extent necessary for it to own one hundred percent (100%) of the voting stock thereof. In the exercise of this authority, the Monetary Board shall adopt measures as may be necessary to ensure that at all times the control of seventy percent (70%) of the resources or assets of the entire banking system is held by banks which are at least majority-owned by Filipinos. Any right, privilege or incentive granted to a foreign bank under this Section shall be equally enjoyed by and extended under the same conditions to banks organized under the laws of the Republic of the Philippines. (Secs. 2 and 3, RA 7721)
SECTION 74. Local Branches of Foreign Banks. In the case of a foreign bank which has more than one (1) branch in the Philippines, all such branches shall be treated as one (1) unit for the purpose of this Act, and all references to the Philippine branches of foreign banks shall be held to refer to such units. (68)
If a foreign bank, or any foreign corporation for that matterwould like to transact business in the Philippines, it must first obtain a license from SEC.
Aside from that, if you will open a bank, you need to obtain a license from the Bangko Sentral.
So, license from the SEC and Bangko Sentral.
Now in case a foreign bank has more than 1 branch in the Philippines, all such branches shall be treated as 1 unit. Of course we have this principle that the branch and head office are treated as one. That principle is called the single entity concept.
Acquisition of voting stock in a domestic bank - This is what we discussed previously regarding foreign ownership of a domestic bank. (See discussion under Section 11) - So under Section 73, it is possible now for a foreign bank to acquire up to 100% of a voting stock of only 1 bank organized under the Philippines.
SECTION 75
Who guarantees the liabilities of a branch of a foreign bank in the Philippines? - The Head office
Residents and citizens of the Philippines who are creditors of a branch in the Philippines of a foreign bank shall have preferential rights to the assets of such branch in accordance with existing laws.
SECTION 76
If there is a branch here of a foreign bank, to whom shall you serve the summons? - To the designated resident agent. RFCs are required to have resident agents. - The agent can be a Filipino or an alien for as long as he is a resident.
SECTION 78
When can you revoke the license of a foreign bank? - If the bank is insolvent or in imminent danger thereof or that its continuance in business will involve probable loss to those transacting business with it.
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SECTION 80. Conduct of Trust Business. A trust entity shall administer the funds or property under its custody with the diligence that a prudent man would exercise in the conduct of an enterprise of a like character and with similar aims. No trust entity shall, for the account of the trustor or the beneficiary of the trust, purchase or acquire property from, or sell, transfer, assign or lend money or property to, or purchase debt instruments of, any of the departments, directors, officers, stockholders, or employees of the trust entity, relatives within the first degree of consanguinity or affinity, or the related interests, of such directors, officers and stockholders, unless the transaction is specifically authorized by the trustor and the relationship of the trustee and the other party involved in the transaction is fully disclosed to the trustor or beneficiary of the trust prior to the transaction. The Monetary Board shall promulgate such rules and regulations as may be necessary to prevent circumvention of this prohibition or the evasion of the responsibility herein imposed on a trust entity. (56)
Trust has something to do with the relationship between the trustor and the trustee, wherein the trustee holds the funds or properties of the trustor for the benefit of the latter. - So, you invest, you put money to that trust and they would invest it, manage it safely. Make it grow for the benefit of the beneficiary or of the trustor. - Example: retirement plan of corporations being managed by Trustee Banks. - There are banks engaged in trust operations.
Who is authorized to engage in trust business? - It must be a stock corporation, not a sole proprietor nor a partnership.
What is the degree of care expected of those engaged in trust operations? - A trust entity shall administer the funds or property under its custody with the diligence that a prudent man would exercise in the conduct of an enterprise of a like character and with similar aims. - This is similar to diligence of a good father of a family. - This is the standard of care prescribed by law.
What are the prohibited transactions in case of trust operations? - No trust entity shall, for the account of the trustor or the beneficiary of the trust, purchase or acquire property from, or sell, transfer, assign or lend money or property to, or purchase debt instruments of, any of the departments, directors, officers, stockholders, or employees of the trust entity, relatives within the first degree of consanguinity or affinity, or the related interests, of such directors, officers and stockholders - Unless: 1. such transaction is specifically authorized by the trustor and 2. the relationship of the trustee and the other party involved in the transaction is fully disclosed to the trustor or beneficiary of the trust prior to the transaction. - This is to avoid conflict of interest.
The bank cannot also commingle the funds from its banking business with the funds from its trust operations.
Trust operations are not covered by PDIC.
SECTION 83. Powers of a Trust Entity. A trust entity, in addition to the general powers incident to corporations, shall have the power to: 83.1. Act as trustee on any mortgage or bond issued by any municipality, corporation, or any body politic and to accept and execute any trust consistent with law; 83.2. Act under the order or appointment of any court as guardian, receiver, trustee, or depositary of the estate of any minor or other incompetent person, and as receiver and depositary of any moneys paid into court by parties to any legal proceedings and of property of any kind which may be brought under the jurisdiction of the court; 83.3. Act as the executor of any will when it is named the executor thereof; 83.4. Act as administrator of the estate of any deceased person, with the will annexed, or as administrator of the estate of any deceased person when there is no will; 83.5. Accept and execute any trust for the holding, management, and administration of any estate, real or personal, and the rents, issues and profits thereof; and 83.6. Establish and manage common trust funds, subject to such rules and regulations as may be prescribed by the Monetary Board. (58)
Just read.
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LAW ON SECRECYOF BANKDEPOSITS (R.A. 1405, as amended)
Section 1. It is hereby declared to be the policy of the Government to give encouragement to the people to deposit their money in banking institutions and to discourage private hoarding so that the same may be properly utilized by banks in authorized loans to assist in the economic development of the country.
Whats the purpose of the law? - To encourage people to deposit and to discourage hoarding
Whats the effect if the people will hoard their money instead of depositing it in the bank? - The money will not circulate. - By encouraging people to deposit, the bank would be able to acquire more funds which it could lend to the public. - Bottom line, the effect is that it could affect the economy. It could spur economic activity.
Section 2. All deposits of whatever nature with banks or banking institutions in the Philippines including investments in bonds issued by the Government of the Philippines, its political subdivisions and its instrumentalities, are hereby considered as of an absolutely confidential nature and may not be examined, inquired or looked into by any person, government official, bureau or office, except upon written permission of the depositor, or in cases of impeachment, or upon order of a competent court in cases of bribery or dereliction of duty of public officials, or in cases where the money deposited or invested is the subject matter of the litigation.
What are covered under RA 1405? - It covers all kinds of deposits, whatever the nature of these deposits, whether these are savings, time, current deposits, with banks or banking institutions and not only deposits but it also includes investments in bonds issued by the government of the Philippines or its political subdivisions.
What about trust funds, are they covered? - Yes. It covers deposits of whatever nature. Those deposits are covered by the law on secrecy.
What about if a bank rents out a safety deposit box and you placed something there? - YES, because its still considered as deposits with the banks so long as it is placed or it is made in the bank or banking institutions. - But if you make investment in investment house, not in a bank, then, that is not covered.
The deposit must be made with a BANK or BANKING INSTITUTION for it to be covered by the bank secrecy law.
Section 3. It shall be unlawful for any official or employee of a banking institution to disclose to any person other than those mentioned in Section two hereof any information concerning said deposits.
GENERAL RULE: bank deposits shall be kept absolutely confidential.
Prohibitions: 1. Bank employees and officers are prohibited from disclosing, sabotage information concerning all deposits of whatever nature to any unauthorized person - Take note that the prohibition applies only to a bank officer or employee. - If you are not a bank officer or employee and you made a disclosure, you would not be held liable under the bank secrecy law but probably under another law. 2. Bank deposits shall not be subject to an examination or inquiry of whatever nature. It cannot be looked into by any person, individual, government office, bureau, etc.
EXCEPTIONS:
4 Exceptions under RA 1405:
1. Written consent of the depositor - EXAMPLE: This would apply in a case of a corporation during annual audit wherein the auditor would check the bank deposits of the corporation. Normally, they would require the corporation to sign a request for a bank to confirm their deposits. The bank is allowed to disclose because there is a written permission from the depositor.
2. In cases of impeachment - So if it talks about impeachment, this would apply to public officers or public officials.
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3. Upon order of a competent court in cases of bribery or dereliction of duty by public officials
4. Upon order of a competent court in case when the money deposited is the subject matter of litigation. - If theres a pending case in court and theres an order of a competent court, and the subject matter of the case is the money deposited. - Ex. Plaintiff was swindled, and the proceeds were deposited with BDO. Plaintiff now files a case to recover the amount that was swindled. So, the court issued an order to subpoena the bank officer and to bring with him the records of the swindlers bank deposits. That is allowed since the subject matter is the money deposited.
Other exceptions provided under other special laws:
1. RA 3019 or the Anti-Graft and Corrupt Practices Act (unexplained wealth + public official) - It must be a case for unexplained wealth as held in the case of PNB VS GANCAYCO and BANCO FILIPINO VS PURISIMA. - So take note, the violation under RA 3019 must be for unexplained wealth. - The person subject of the examination must be a public official. - There must also be a pending case in court per RA 3019 (Provision under RA 3019 in conflict with SC ruling in PNB v. GANCAYCO. SC in that case allowed disclosure even if there was no pending case in court.)
2. NIRC authorizes the CIR to inquire into bank deposits of: a. A decedent to determine his gross estate; and b. If the TP has filed for a compromise on his tax liability on the ground of financial capacity - In this case, normally, the TP would be required to sign a waiver of his privilege under RA 1405.
3. Anti-Money Laundering Act (AMLA) - Upon order of a competent court when theres a probable cause that has been established that the deposits or the money involved are related to money laundering activities - Under AMLA, the bank is required to report to the AMLA Council in case of a single or series or combination of transactions involving the amount in excess of 500k or an equivalent amount in foreign currency, especially if the transaction is not supported by any legitimate purpose. o So in that case, the bank is not violating the law on secrecy of bank deposits if it discloses such transaction or such deposit involving that amount of money to the AMLA Council because thats provided under the AMLA. Thats an exception provided under AMLA.
4. Unclaimed Balances Act - This pertains to dormant accounts for a period of 10 years wherein the bank is required to make a disclosure to the treasurer of the Philippines. - The proceeds of the deposits will be escheated in favor of the government.
5. Human Security Act - If you are suspected of committing terrorism then your bank accounts may be inquired into.
There are also other laws which complement or support RA 1405:
1. Foreign Currency Deposit Act (FCDA) - FC deposits are also absolutely confidential. - In fact, there is only ONE EXCEPTION, and that is upon written consent of the depositor. - This is stricter because there is only 1 exception. - Reason: at the time the law was enacted, the purpose of the framers of the law is to encourage FCD. Aside from the confidentiality, they also provide for tax exemptions on interest income from FCD.
- Other exceptions to the FCDA:
CHINA BANKING CORPORATION V. CA GR 140687, 18 December 2006
Case for the recovery of funds which were misappropriated. The case was filed by the father against the daughter. The daughter allegedly withdrew funds from the bank. But the father was a co-depositor or a co-payee of the check. Disclosure was allowed in this case because the one filing the case was a co-depositor, a co-payee. When he filed the case for the subpoena of the bank deposit, it is in effect a WRITTEN PERMISSON by the depositor. Special Commercial Laws - Finals EH 403 [2011 2012]
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At the end of the decision the court went on and said that because of the distinctive circumstances of the case and in the interest of justice and rudiments of fairplay, it is better to allow a disclosure.
SALVACION V. CENTRAL BANK 278 SCRA 27
Thisis a case involving a foreign national who was accused of being a pedophile. There is an issue now on WON the FCD of that foreign national who is a fugitive from HK, can be subject to garnishment. The SC said YES as an exception, in the interest of equity and justice. So, the court said that this was an exception to the FCDA because of the peculiar circumstances of the case.
2. General Banking Law (GBL) a. No bank shall employ casual or non-regular personnel or too lengthy probationary personnel in the conduct of its business involving bank deposits b. Banks are prohibited from outsourcing inherent banking functions c. No director, officer, employee, or agent of any bank shall, without court order, disclose to any unauthorized person any information relative to the funds or properties in the custody of the bank belonging to private individuals, corporations, or any other entity; Provided, that with respect to bank deposits, the provisions of existing laws shall prevail
3. New Central Bank Act (NCBA) a. DOSRI loans if a DOSRI would like to obtain a loan from a bank wherein he is a director, stockholder, or officer, he can do so provided that he executes a waiver of his rights under the secrecy of bank deposits. b. In case of examination by the BSP of a bank, the bank will be required to disclose bank deposits. c. In case theres an examination by an independent auditor of a bank, the bank will be required to disclose to the independent auditor such information.
Section 5. Any violation of this law will subject offender upon conviction, to an imprisonment of not more than five years or a fine of not more than twenty thousand pesos or both, in the discretion of the court.
What are the penalties for violation? - Imprisonment of not more than five years or a fine of not more than twenty thousand pesos or both, in the discretion of the court
TAKE NOTE: Only bank officers and bank employees can be penalized under this law. Others may be held liable not under this law but under a different law, probably the Civil Code, on Torts.
CHINA BANKING CORPORATION V. ORTEGA
This case involves a collection of money. A judgment was rendered and to satisfy such judgment, a writ of garnishment was issued against the debtor.When the writ of garnishment was served on the cashier of the bank, the bank cashier refused to disclose by invoking the provisions of RA 1405.
ISSUE: WON the bank can disclose or can be compelled to disclose, or WON the bank can invoke the provisions of RA 1405 by refusing the writ of garnishment.
So does the writ of garnishment violate RA 1405? - NO, because a writ of garnishment itself does not require the bank to disclose exactly how much is the deposit but it simply requires the bank to inform the court WON there exists a deposit. If there is, it shall hold such deposit for the benefit of the creditor and it shall not to allow withdrawal. - If ever information as to the amount of deposits will be disclosed, it is only incidental to the execution process. - But per se, the writ of garnishment does not violate RA 1405.
ONATE V. ABROGAR
This is a complaint for sum of money with writ of attachmentfiled by Sunlife against its debtors.
APPLICATION OF THE EXCEPTION that the money deposited was the subject matter of litigation.
- There was fraud established. - There was this check from Sunlife issued to petitioner and the check was supposed to be in payment for a certain transaction. - It turned out that this transaction was fraudulent, and the same check was deposited in a bank by the petitioner. So thats why the proceeds of the check which Sunlife sought to recover was the same money that it would like to recover. So thats why that money became the subject matter of litigation. Special Commercial Laws - Finals EH 403 [2011 2012]
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- It was not just a simple case for collection of money, but really to recover that same money covered by the check that was issued by Sunlife to petitioner.
MARQUEZ V. DESIERTO
- Marquez was the branch manager of Union bank. Desierto was the Ombudsman. - The investigation was all about the violation of certain provisions under RA 3019, specifically Sec. 3 (e) and (g) relative to a joint venture agreement, but not about unexplained wealth. - Bottomline: Marquez doesnt want to disclose by invoking the provisions of RA 1405. - Take note here, we have a case which is still pending with Ombudsman and not with the court. - The Office of the Ombudsman issued a subpoena.
ISSUE: Can the Ombudsman, in a pending case, compel the bank to make the disclosure?
SC: NO. In the decision, the court enumerated the 4 exceptions under RA 1405. It added 1 additional exception, which is Sec. 8 of RA 3019. This exception refers to cases of unexplained wealth as decided in the case of PNB V. GANCAYCO.
This case according to the court does not fall under any of those exceptions enumerated because there was no written consent, it was not a case for impeachment, there was no pending case in court, it was only a pending investigation. In fact, the court said that whatthe Ombudsman did was just a fishing expedition. Therefore, since it does not fall under any of the exceptions, Marquez cannot be compelled to make the disclosure.
So, there must be a pending case in court, not just an investigation.
BANCO FILIPINO V. PURISIMA
Disclosure in cases for unexplained wealth are not limited only to those properties registered under the name of the public official but also to those properties registered under the name of his spouse, children, relatives, etc.
Still, this is about an investigation for unexplained wealth. But this time, it involves the Tanodbayans intention to subpoena duces tecumagainst the bank records or transactions in the name of the wife, children, and friends. The public official was a special agent of the BOC. He was charged for having allegedly acquired properties manifestly out of proportion to his salary or lawful income.
ISSUE: WON the cases in unexplained wealth are limited only to those bank records registered in the name of the public official.
SC: NO. It is not limited to the bank records registered in the name of the public official.It covers properties in the name of the spouse, children, friends, etc.
NOTE that RA 3019 requires that there be a pending case in court. The point in this case is that the disclosure is not just limited to the public officials bank records, but also extends to his wifes, etc.
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PHILIPPINE DEPOSITINSURANCE CORPORATIONACT (R.A. 3591, as amended)
The act provides for the creation of the PDIC, a government corporation, financed solely by the BSP, acting with the basic policy to promote and safeguard the interests of the depositing public by way of providing permanent and continuing insurance coverageon all insured deposits.
The term insured deposit means the amount due to any bona fide depositor for legitimate deposits in an insured bank net of any obligation of the depositor to the insured bank as of the date of closure, but not to exceed Five Hundred Thousand Pesos (P500,000.00).
1. DEPOSIT LIABILITIES REQUIRED TO BE INSURED WITH PDIC
PDIC covers all deposit liabilities of the bank. It covers all kinds of deposits, whether savings, checking, current, or anything evidenced by a passbook or certificate. To be covered under PDIC, the requirement is that there must be a deposit made. Under the PDIC law, the term deposit means the unpaid balance ofmoney or its equivalent received by a bank in the usual course of business and for which it has given or is obliged to give credit to a commercial, checking, savings, time or thrift account, or issued in accordance with Bangko Sentral rules and regulations and other applicable laws, together with such other obligations of a bank, which, consistent with banking usage and practices,
What about if the bank has a branch located outside of the Philippines? Is the deposit liability of that branch outside of the Philippines covered by PDIC? Like for example, I am a depositor of BDO Branch in HK or in the US, am I covered by PDIC? - GENERAL RULE: obligations of the bank located outside or payable outside of the Philippines, shall not be covered by PDIC. - EXCEPTION: theres an option on the part of the bank that with the consent or with the approval of the BODs of PDIC, those liabilities can be insured. So, its up to the bank provided that its approved by the PDIC, that its deposit liabilities for branches located outside of the Philippines be covered by PDIC. But general rule is limited only to liabilities located within the Philippines.
The liability of the PDIC is statutory, in the sense that its liability is created by law. Since it is statutory, its liability rests primarily on the existence of the deposit, and not on the negotiability or non-negotiability of any certificate evidencing deposit. So, even if you are a holder in due course of a certificate of deposit, it is not a guarantee that you would be entitled to PDIC coverage.
- Example: Mr. A placed a time deposit with a bank, and in exchange, the bank issued to him a certificate of time deposit. Assuming the CTD is negotiable, Mr. A negotiated it with Mr. B. Now Mr. B is a holder in due course of the CTD. After the CTD was negotiated, Mr. A went to the bank and declared that his CTD was lost. So upon an issuance of an affidavit of loss, Mr. A was issued another CTD covering exactly the same deposit. Later on, Mr. A preterminated the time deposit and withdrew the funds covered by the CTD. Subsequently, the bank was placed under receivership.
Mr. B, the holder, filed a claim with the PDIC to recover the value of the deposit as evidenced by a CTD. Can Mr. B recover?
No. Even if we say that Mr. B is a holder in due course of the CTD, he could no longer from PDIC. The basis of the liability of PDIC is the existence of deposit.
- PDIC v. CA GR 118917, 22 December 1997
This case involves certain individuals who made money market placements with a certain financing company. The financing company issued promissory notes and checks. When these individuals tried to encash their investment, the financing company referred them to a particular bank. So they went to the bank, and in exchange, the bank issued them CTD corresponding to the value of their investment made with that financing company. The CTD were supposedly funded by the checks issued by the financing company. Subsequently, the bank was placed under receivership. Now PDIC, as the statutory receiver of banks, prepared an inventory or a list of the deposit liabilities of the bank. That CTD was not included in the list. So when they filed a claim against PDIC, their claims were denied as they were not in the list of deposit liabilities of the bank.
The individuals contended that they are entitled because they are holders in due course of the CTD issued by the bank. However, it was determined that the checks issued by the financing company which supposedly funded Special Commercial Laws - Finals EH 403 [2011 2012]
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the deposit were dishonored because of insufficiency of funds. It turned out that the CTD was not really funded. So the SC said that there was really NO DEPOSIT MADE, even if the individuals were holders in due course of the CTD, they cannot recover from PDIC because there was in fact no deposit made.
Since were talking about insurance, who pays for the premiums? The depositor or the bank? - The bank. Although it benefits the depositor, the bank is the one who pays the premiums in the form of an assessment. - So every year, the bank is assessed by PDIC for a certain amount which assessment later on forms part of the guaranty fund of the PDIC. The guaranty fund will be used by PDIC in paying its liabilities later on.
2. COMMENCEMENT OF LIABILITY
When would the liability of PDIC accrue or commence? - When the PDIC takes over a closed bank.
NOTE: The moment PDIC takes over a closed bank, it must publish a notice once a week for 3 consecutive weeks in a newspaper of general circulation. And normally, they will post a notice outside the bank premises. Of course, theres publication and PDIC will send notices to the depositors.
3. DEPOSIT ACCOUNTS NOT ENTITLED TO PAYMENT
What deposits are excluded from the PDIC coverage? 1. Investment products such as bonds and securities, trust accounts, and other similar instruments; 2. Deposit accounts or transactions which are unfunded, or that are fictitious or fraudulent; 3. Deposit accounts or transactions constituting, and/or emanating from, unsafe and unsound banking practice/s, as determined by the Corporation, in consultation with the BSP, after due notice and hearing, and publication of a cease and desist order issued by the Corporation against such deposit accounts or transactions; and 4. Deposits that are determined to be the proceeds of an unlawful activity as defined under Republic Act 9160, as amended.
Does PDIC cover all types of risks, like robbery? - NO. What type of risk is covered by PDIC? o Only risk of loss arising from bank closure. Closure, in a sense that the bank is already in a state of inability to pay its deposits. Maybe, bank closure because it was ordered closed by the Monetary Board, not just voluntary closure, for reasons of insolvency, or whatever, unsound banking practice o Bank closure could be by reason of bankruptcy, insolvency, etc. o NOTE: PDIC has the right to terminate a bank from the coverage of insurance. Just like any other insurer, if the insured becomes uninsurable. There are instances which will be discussed later.
4. EXTENT OF LIABILITY
Php 500,000.00 is the maximum coverage.
5. DETERMINATION OF INSURED DEPOSITS
How do we determine how much is the insured deposit? Like for example, I have a deposit of 1m. I have a loan with the bank of 700k. So how do I determine now the 500k? How much can I recover from PDIC? - Law says, the amount due to the depositor less any outstanding obligation to the bank at the time of closure. - So meaning, if I have deposit of 1m, the loan or any outstanding obligation for that matter will be deducted first, so the net amount due me is 300k (1m 700k), so its still within the limit of 500k.
6. CALCULATION OF LIABILITY a. Per depositor, per capacity rule b. Joint accounts
Rules to be observed in the calculation of liability (6):
In determining the amount due to any depositor, there shall be added together all deposits in the bank maintained in the same right and capacity for his benefit either in his own name or in the name of others. (same right, same capacity rule)
1. If a depositor has 2 or more accounts with the same bank, add all deposits of an individual in the same right and in the same capacity.
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Current Account 200k Time Deposit 300k Total (same bank) 900k (all under Mr. As name)
How much can Mr. A recover? - 500k for all accounts. All deposits maintained in the same capacity and in the same right. Although the total deposit is 900k, but the maximum that Mr. A can recover from PDIC is only 500k. All the deposits shall be added together so long as they are maintained in the same right and in the same capacity.
2. Coverage is on a per bank basis. (not on a per branch basis)
Even if you made deposits in different branches but still with the same bank, those deposits shall be added and shall be considered as under the same right and same capacity. Example: Mr. A had the following deposits in BDO:
How much can Mr. A recover? - Still 500k. So each account will not be entitled to a separate coverage.
However, a subsidiary bank is different from the parent bank. Both have different personalities. - Example, you have a deposit in BPI and another deposit in BPI Savings Bank, which is a thrift bank. Both banks are different and distinct entities.
3. Individual accounts shall be insured separately from joint accounts.
Example: Mr. A has an individual account, and Mr. A also has a joint account with Mr. B (Mr. A and/or Mr. B).
Mr. A (individual account) Mr. A and/or Mr. B (joint account) Savings Account 200k 200k Current Account 300k 300K Time Deposit 400k 400K Total 900k 900K
For Mr. As individual account, he can recover to the extent of 500k. For Mr. As joint account with Mr. B, another 500k (Follow the rule under number 4 in the absence of a sharing scheme, the 500k shall be divided equally between Mr. A&B, so 250k each).
What do you mean by capacity? - Either in an individual or in a joint capacity. So these are the 2 capacities individual or joint. For the joint account, regardless of the conjunction used, whether it is [AND] or [OR] or [AND/OR] they are all considered as one joint account.
4. If the account is held jointly by two or more natural persons, or by two or more juridical persons or entities, the maximum insured deposit shall be divided into as many equal shares as there are individuals, juridical persons or entities, unless a different sharing is stipulated in the document of deposit.
Mr. A and Mr. B a joint account involving all individuals = 700 Corp. A and Corp. B a joint account involving all juridical persons = 800k
What is the maximum coverage?
For Mr. A & Mr. Bs joint account, 500k. In the absence of stipulation, it is presumed to be equal. So 250k each for Mr. A and Mr. B.
For Corp. A & Corp. Bs joint account, 500k. In the absence of stipulation, Corp. A and Corp. B can recover 250k each.
5. If the account is held by a juridical person or entity jointly with one or more natural persons, the maximum insured deposit shall be presumed to belong entirely to such juridical person or entity.
If the joint account is between an individual and a corporation, the presumption is that it belongs entirely to the juridical person. But this is only a presumption. You can present evidence to the contrary. Example: Mr. A has a joint account with Corporation A amounting to 700k. In that case, it is presumed that it belongs entirely to Corporation A.
Special Commercial Laws - Finals EH 403 [2011 2012]
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6. The aggregate of the interest of each co-owner over several joint accounts, whether owned by the same or different combinations of individuals, juridical persons or entities, shall likewise be subject to the maximum insured deposit of Five Hundred Thousand Pesos (P500,000.00).
Your share in each of those joint accounts shall be added together, and in no case shall it exceed 500k.
MR. As INDIVIDUAL ACCOUNTS Savings Account 400k Current Account 200k Time Deposit 300k Total (same bank) 900k (all under Mr. As name)
MR. As JOINT ACCOUNTS DEPOSIT LIMIT (500k) MR. As share Co-owners share Mr. A and Mr. B 400k 400k 200k 200k (Mr. B) Mr. A and Mr. C 700k*** 500k 250k 250k (Mr. C) Mr. A and Mr. D 300k 300k 150k 150k (Mr. D) Mr. A and Mr. E 800k*** 500k 250k 250k (Mr. E) Total 850k
How much can Mr. A recover? - 1M - For Mr. As individual account, 500k - For Mr. As joint account, 500k. His aggregate interest shall not exceed 500k. - Remember, rule #3, individual accounts shall be insured separately from joint accounts.
***You still have to subject these amounts to the 500k limit. You dont divide them outright. As a rule, the 500k limit applies to each account.
c. Mode of Payment
How would the PDIC pay you? - In the form of cash or transfer deposit o Transfer deposit your deposits will be transferred to another bank, which is likewise insured by PDIC. For example, BDO was closed. In payment of your insured deposit, another account in your name will be opened in BPI. Thats transfer deposit. Of course, its still a bank insured by PDIC.
What if theres a deficiency? Deficiency in the sense that your deposit is 1m, but the coverage, of course, is only 500k. What happens to the other 500k? Can you still recover the other 500k? - YES, you can recover such amount against the bank during liquidation. But that is if the banks still has remaining assets. - So youre insured up to 500k, if there is a deficiency, you can still recover it. But this time, not with PDIC but with the bank.
d. Effect of Payment of insured deposit
1. The PDIC will be discharged from liability. 2. After payment, as in insurance, the PDIC is subrogated to all the rights of the depositor against the closed bank, to the extent of such payment. - So, it is PDIC now who can go after the assets of the bank.
e. Payments of insured deposits as preferred credits under Article 2244, CC f. Failure to settle claim of insured depositor
What if theres a failure on the part of PDIC to settle the claims of insured- depositors? Within how many months is PDIC required to settle the claim of insured-depositor? - GENERAL RULE: Under the law, PDIC must settle all claims of insured- depositors within 6 months from the date of filing of the claim. - EXCEPTION: However, the 6-month period will not apply if the validity of the claim still requires the resolution of issues and facts. o So, when PDIC still has to determine the veracity of your claim, the legitimacy of your claim.
And if theres a failure to settle that claim within 6 months and the failure was due to grave abuse of discretion, gross negligence, bad faith, malice, upon conviction, the Board of Directors, officers, and employees of PDIC, shall be subject to imprisonment for 6 months to 1 year.
g. Failure of depositor to claim insured deposit
So, the liability of the PDIC commences the moment PDIC takes over the closure of the bank. Now, within what period must the depositor file his claim? Special Commercial Laws - Finals EH 403 [2011 2012]
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- Within 2 years or within 24 months from actual takeover.
When will the claim of the depositor be barred? 1. if the depositor in the closed bank shall fail to claim his insured deposits with the Corporation within two (2) years from actual takeover of the closed bank by the receiver; or 2. if he does not enforce his claim filed with the corporation within two (2) years after the two-year period to file a claim as mentioned hereinabove o you have filed within 2 years, but after 2 years from the time you filed your claim, you did not enforce your claim, you lost interest
- The effect is that all rights of the depositor against the PDIC with respect to the insured deposit shall be barred. - So, either you failed to file within 2 years or even if you filed, you did not enforce your claim within 2 years after youve already filed your claim, then, the effect is that your claim against PDIC will be forever barred, and therefore, PDIC is discharged from liability. - But of course, your right to recover against the bank still subsists.
EXAMINATION OF BANKS AND DEPOSIT ACCOUNTS
Can the PDIC conduct examination of an insured bank? - YES, with prior approval from the Monetary Board.
PROHIBITION AGAINST SPLITTING OF DEPOSITS
Splitting of deposits (within the same bank) is prohibited. Take note that the prohibition applies only to deposits within the same bank. Nothing can stop you from having as many bank accounts in as many banks as you want. After all, the insurance coverage is on a per bank basis.
Splitting of deposits occurs whenever a deposit account with an outstanding balance of more than the statutory maximum amount of insured deposit maintained under the name of natural or juridical persons is broken down and transferred into two (2) or more accounts in the name/s of natural or juridical persons or entities who have no beneficial ownership on transferred deposits in their names within one hundred twenty (120) days immediately preceding or during a bank declared bank holiday, or immediately preceding a closure order issued by the Monetary Board of the BSP for the purpose of availing of the maximum deposit insurance coverage.
Like for example, theres a presumption under the law that the splitting of accounts was illegal or not valid if made within a period of 120 days immediately preceding the bank closure or bank holiday. - If you split the accounts 120 days immediately preceding the bank closure, that is, 4 months there is a presumption under the law that you did the splitting of accounts in order to avoid the maximum limit. o ILLUSTRATION: Mr. A has 1m in deposit. But he heard from his friends in BSP (insider information) that this bank is in the brink of insolvency. Lets just say, if the splitting was done 4 months immediately prior to the closure of the bank, theres a presumption that the splitting was done to avoid being subject to the maximum coverage of 500k. So Mr. A distributed 1m to Mr. B, C and D. And it is proven that B, C and D have no beneficial interest or ownership over those accounts. Thats prohibited. Thats what we call splitting of accounts.
PROHIBITION AGAINST ISSUANCES OF TROs, etc.
No court, except the Court of Appeals, shall issue any temporary restraining order, preliminary injunction or preliminary mandatory injunction against the Corporation for any action under the PDIC Act.
This prohibition shall apply in all cases, disputes or controversies instituted by a private party, the insured bank, or any shareholder of the insured bank.
The Supreme Court may issue a restraining order or injunction when the matter is of extreme urgency involving a constitutional issue, such that unless a temporary restraining order is issued, grave injustice and irreparable injury will arise. The party applying for the issuance of a restraining order or injunction shall file a bond in an amount to be fixed by the Supreme Court, which bond shall accrue in favor of the Corporation if the court should finally decide that the applicant was not entitled to the relief sought.
Any restraining order or injunction issued in violation of this Section is void and of no force and effect and any judge who has issued the same shall suffer the penalty of suspension of at least sixty (60) days without pay.
What if the PDIC determines that this bank is already conducting its business in an unsafe and unsound manner? Can PDIC terminate the coverage of this bank? - GENERAL RULE: compulsory insurance for all banks. Special Commercial Laws - Finals EH 403 [2011 2012]
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- BUT, PDIC could terminate the coverage: a. If the PDIC determines that the bank continues to conduct its business in an unsafe and unsound manner Of course, thats a right of PDIC because if the bank is conducting its business in an unsafe and unsound manner, the probability that there would be a bank run or closure is great, so in effect PDIC would be liable. b. If the insured bank fails to pay what we call the assessment fees within 30 days after written notice was given to it, PDIC may also discontinue such bank in the insurance coverage. So the assessment fees refer to the premiums paid by the bank.
Bank rehabilitation can the PDIC rehabilitate a bank? - YES. The basis of this is that if the PDIC determines that it would be more cost-efficient to rehabilitate the bank, to give financial assistance to the bank,rather than to close the bank. - It says in the law that if it is proven that it is less costly than closure. - PDIC will determine WON a bank can still be rehabilitated within 90 days.
As receiver of a closed bank - If the bank is placed under receivership, PDIC is designated as the statutory receiver. Effective upon PDIC takeover as receiver, the powers, functions and duties, as well as allowances, remunerations and perquisites of the directors, officers and stockholders, as well as relevant provisions of the articles and by-laws, are immediately suspended.
TRUTH IN LENDINGACT (R.A. 3765)
Section 2. Declaration of Policy. It is hereby declared to be the policy of the State to protect its citizens from a lack of awareness of the true cost of credit to the user by assuring a full disclosure of such cost with a view of preventing the uninformed use of credit to the detriment of the national economy.
Whats the purpose? a. To protect the debtor from lack of awareness of the true cost of the credit; and b. To assure full disclosure
TILA applies to all credits.
(2) "Credit" means any loan, mortgage, deed of trust, advance, or discount; any conditional sales contract; any contract to sell, or sale or contract of sale of property or services, either for present or future delivery, under which part or all of the price is payable subsequent to the making of such sale or contract; any rental- purchase contract; any contract or arrangement for the hire, bailment, or leasing of property; any option, demand, lien, pledge, or other claim against, or for the delivery of, property or money; any purchase, or other acquisition of, or any credit upon the security of, any obligation of claim arising out of any of the foregoing; and any transaction or series of transactions having a similar purpose or effect.
There are 2 categories mentioned in the law: 1. Loans of money 2. Sale on installment of property and other allied transactions
Section 4. Any creditor shall furnish to each person to whom credit is extended, prior to the consummation of the transaction, a clear statement in writing setting forth, to the extent applicable and in accordance with rules and regulations prescribed by the Board, the following information: (1) the cash price or delivered price of the property or service to be acquired; (2) the amounts, if any, to be credited as down payment and/or trade-in; (3) the difference between the amounts set forth under clauses (1) and (2); (4) the charges, individually itemized, which are paid or to be paid by such person in connection with the transaction but which are not incident to the extension of credit; (5) the total amount to be financed; (6) the finance charge expressed in terms of pesos and centavos; and Special Commercial Laws - Finals EH 403 [2011 2012]
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(7) the percentage that the finance bears to the total amount to be financed expressed as a simple annual rate on the outstanding unpaid balance of the obligation.
Whats the requirement under the law? - That the creditor shall furnish to each person to whom credit is extended prior to the consummation of the transaction a clear statement in writing setting forth the following: 1. Cash price; 2. Amounts credited as down payment and/or trade-in; 3. Difference between the amounts in cash price and amounts credited as down payment or trade-in 4. Charges not incident to the extension of credit 5. Total amount to be financed 6. Finance charges o Example: Interest, service fees, discounts, appraisal fee (collateral), investigation fee, documentation fee (C.I.), processing fee 7. Percentage of the finance charge to amount financed o Example: Total finance charge is 30k. The total amount of loan is 100k. So, percentage is 30%.
Section 6. (a) Any creditor who in connection with any credit transaction fails to disclose to any person any information in violation of this Act or any regulation issued thereunder shall be liable to such person in the amount of P100 or in an amount equal to twice the finance charged required by such creditor in connection with such transaction, whichever is the greater, except that such liability shall not exceed P2,000 on any credit transaction. Action to recover such penalty may be brought by such person within one year from the date of the occurrence of the violation, in any court of competent jurisdiction. In any action under this subsection in which any person is entitled to a recovery, the creditor shall be liable for reasonable attorney's fees and court costs as determined by the court. (b) Except as specified in subsection (a) of this section, nothing contained in this Act or any regulation contained in this Act or any regulation thereunder shall affect the validity or enforceability of any contract or transactions. (c) Any person who willfully violates any provision of this Act or any regulation issued thereunder shall be fined by not less than P1,00 or more than P5,000 or imprisonment for not less than 6 months, nor more than one year or both. (d) No punishment or penalty provided by this Act shall apply to the Philippine Government or any agency or any political subdivision thereof. (e) A final judgment hereafter rendered in any criminal proceeding under this Act to the effect that a defendant has willfully violated this Act shall be prima facie evidence against such defendant in an action or proceeding brought by any other party against such defendant under this Act as to all matters respecting which said judgment would be an estoppel as between the parties thereto.
Whats the consequence if the creditor did not disclose or did not comply with the disclosure requirement under the TILA? 1. The debtor is authorized to recover any interest payments made. 2. The creditor will be liable for double the finance charge plus attorneys fees. 3. The creditor can be held criminally liable. - The seller/lender if convicted, may be imposed a fine ranging from 1k to 5k or imprisonment from 6 mos. to 1 year or both. Prescriptive period within what period? - Within 1 year from the date of violation
DBP V. ARCILLA
Arcilla was a lawyer. He used to work with DBP and he applied for a housing loan. Later on, when DBP demanded for payment, he contended that he was not duly informed of the finance charges and that DBP failed to disclose the information required in the disclosure statement (but such information was disclosed in the promissory note).
But the SC said that NO, the information were adequately disclosed in the promissory note. So there was sufficient compliance with the requirements under the TILA.
And secondly, as a lawyer, he is supposed to be knowledgeable. It would have been different if the borrower was an ordinary employee.
CONSOLIDATED BANK V. CA
It talks about handling charges being imposed by the bank.
The court said that since the handling charges were not fully disclosed in the promissory note, therefore, the bank has no right to collect and impose those charges pursuant to the TILA.
NEW SAMPAGUITA V. PNB
Special Commercial Laws - Finals EH 403 [2011 2012]
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This case talks about a promissory note with an escalation clause and the bank, pursuant to the escalation clause, unilaterally, increased the interest rates without obtaining the consent of the borrower.
The court said that the increase in interest rates is not valid. It violates mutuality of contracts because it was done without the consent of the borrower.
And second, it also violates the TILA because it was not disclosed in the disclosure statement how much the interest rates were.
ANTI-MONEYLAUNDERING ACT OF 2001 (R.A. 9160, as amended by R.A. 9194)
POLICY OF THE LAW
1. Protect and preserve the integrity and confidentiality of bank accounts, to ensure that the Philippines shall not be used as site for unlawful money laundering activities; and 2. Pursue the states foreign policy to extend cooperation in transnational investigations and prosecutions on money laundering activities.
What is money laundering? - Money laundering is a crime whereby the proceeds of an unlawful activity are transacted, thereby making them appear to have originated from legitimate sources. - You are making dirty money clean. So you launder, you wash it, you cleanse it. You make money coming from illegal sources appear as coming from legitimate sources.
COVERED INSTITUTIONS
"Covered institution" refers to:
1. banks, non-banks, quasi-banks, trust entities, and all other institutions and their subsidiaries and affiliates supervised or regulated by the BSP; 2. insurance companies and all other institutions supervised or regulated by the Insurance Commission; and 3. SEC supervised/regulated: a. securities dealers, brokers, salesmen, investment houses and other similar entities managing securities or rendering services as investment agent, advisor, or consultant, b. mutual funds, close-end investment companies, common trust funds, pre-need companies and other similar entities, c. foreign exchange corporations, money changers, money payment, remittance, and transfer companies and other similar entities, and d. other entities administering or otherwise dealing in currency, commodities or financial derivatives based thereon, valuable objects, cash substitutes and other similar monetary instruments or property supervised or regulated by Securities and Exchange Commission and Exchange Commission
Special Commercial Laws - Finals EH 403 [2011 2012]
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- These are the institutions which the launderers would most likely go to. - Launderers used to go to banks but since banks are now highly regulated, theywould go to these institutions and make investments either in the form of securities or stocks or insurance. That is why aside from banks, the list includes not only insurance companies but also persons or entities under the SEC supervision, such as security dealers, brokers, investment houses, mutual funds, foreign exchange corporations, money changers, etc. - So basically, entities under the BSP, Insurance Commission and SEC. These are institutions which have the obligation monitor and report under the AMLA any suspected money laundering activities.
OBLIGATIONS OF COVERED INSTITUTIONS
SEC. 9. Prevention of Money Laundering; Customer Identification Requirements and Record Keeping. (a) Customer Identification. - Covered institutions shall establish and record the true identity of its clients based on official documents. They shall maintain a system of verifying the true identity of their clients and, in case of corporate clients, require a system of verifying their legal existence and organizational structure, as well as the authority and identification of all persons purporting to act on their behalf. The provisions of existing laws to the contrary notwithstanding, anonymous accounts, accounts under fictitious names, and all other similar accounts shall be absolutely prohibited. Peso and foreign currency non-checking numbered accounts shall be allowed. The BSP may conduct annual testing solely limited to the determination of the existence and true identity of the owners of such accounts. (b) Record Keeping. - All records of all transactions of covered institutions shall be maintained and safely stored for five (5) years from the dates of transactions. With respect to closed accounts, the records on customer identification, account files and business correspondence, shall be preserved and safely stored for at least five (5) years from the dates when they were closed. (c) Reporting of Covered Transactions. - Covered institutions shall report to the AMLC all covered transactions within five (5) working days from occurrence thereof, unless the Supervising Authority concerned prescribes a longer period not exceeding ten (10) working days. When reporting covered transactions to the AMLC, covered institutions and their officers, employees, representatives, agents, advisors, consultants or associates shall not be deemed to have violated Republic Act No. 1405, as amended; Republic Act No. 6426, as amended; Republic Act No. 8791 and other similar laws, but are prohibited from communicating, directly or indirectly, in any manner or by any means, to any person the fact that a covered transaction report was made, the contents thereof, or any other information in relation thereto. In case of violation thereof, the concerned officer, employee, representative, agent, advisor, consultant or associate of the covered institution, shall be criminally liable. However, no administrative, criminal or civil proceedings, shall lie against any person for having made a covered transaction report in the regular performance of his duties and in good faith, whether or not such reporting results in any criminal prosecution under this Act or any other Philippine law. When reporting covered transactions to the AMLC, covered institutions and their officers, employees, representatives, agents, advisors, consultants or associates are prohibited from communicating, directly or indirectly, in any manner or by any means, to any person, entity, the media, the fact that a covered transaction report was made, the contents thereof, or any other information in relation thereto. Neither may such reporting be published or aired in any manner or form by the mass media, electronic mail, or other similar devices. In case of violation thereof, the concerned officer, employee, representative, agent, advisor, consultant or associate of the covered institution, or media shall be held criminally liable.
1. Customer identification - The covered institution must establish and maintain a record of the true identity of its clients based on official documents. - One way of laundering money is through false identities. So before they would accept any transaction from any individual or entity for that matter, they must establish the true identity of that person. - If you open an account with a bank, the bank is very strict. They would require you to submit 2 IDs, and not just any ID but government-issued ID. Also in case of corporations or juridical entities, they require you to submit your AOI or SEC registration papers. In addition to that, the bank would require you to submit a resolution from the board designating the authorized person or representative of the corporation. The purpose of all these is to establish the true identity of the client. - What are the prohibitions? o Opening anonymous accounts, accounts under fictitious names, and all other similar accounts As an EXCEPTION under the Anti-Alias Law, if you are a movie star, you can use your screen name. You can open an account under your screen name. What is important is that as far as the bank is concerned, the identity of the person behind that screen name is established. Some banks also open an account under a numbered account. Why numbered account? Maybe for confidentiality reasons. Numbered accounts are allowed but only for savings or non- checking accounts, because it is difficult for checking accounts. Special Commercial Laws - Finals EH 403 [2011 2012]
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Even if it is a numbered account, the bank still knows who owns that numbered account. The bank must still establish the identity behind that numbered account.
2. Record keeping - All records of all transactions shall be maintained and safely stored for 5 years from the date of transactions. - For closed accounts, 5 years from the dates when they were closed.
3. Reporting of covered and suspicious transactions - The more important obligation of covered institutions - They shall report to the AMLA Council (AMLC) within 5 working days from the occurrence of the covered and/or suspicious transaction, unless the Supervising Authority prescribes a longer period not exceeding 10 working days. - If a transaction is determined to be both a covered and suspicious transaction, it shall be reported as a suspicious transaction. - If a bank would report to the AMLC, it is not considered to have violated the Law on Secrecy of Bank Deposits. We have discussed that, it is one of the exceptions. But what is exempt is the disclosure or reporting to the AMLC. If the bank would disclose that a report was made to the AMLC, that is no longer covered under the exception. In fact if the bank would disclose this to an unauthorized person, that is criminally punishable. Also, you should not disclose such reporting to the media.
COVERED TRANSACTIONS
Threshold Transactions (Covered Transactions) transaction in cash or other equivalent monetary instrument in EXCESS OF Five Hundred Thousand Pesos (Php 500,000.00) within one banking day.
Take note it says within a single banking day, not a single transaction. Example: Mr. A made the following deposits in one day: P200,000 in savings account, P350,000 in time deposit and P100,000 in current account. The bank is required to report these transactions to AMLC because the total deposits exceed P500,000 in 1 banking day.
Savings Account 200K Time Deposit 350K Current Account 100K TOTAL (one banking day) 650K
HOWEVER, if within a period of 5 days I deposit P150,000 per day(a total of P750,000 in 5 days) the bank is not required to report this transaction because in a single day it did not exceed P500,000, UNLESS it falls under suspicious transactions. So regardless of the purpose, source or destination of the money, so long as it exceeds P500,000 it is already a covered transaction. When we say report, it does not mean that a case will automatically be filed against you for violation of AMLA. Its just an administrative matter, so for purposes of reporting. It is for AMLC now to determine which of these transactions are considered money laundering activities.
SUSPICIOUS TRANSACTIONS
Transactions with covered institutions, regardless of the amounts involved, where any of the following circumstances exist:
a. There is no underlying legal or trade obligation, purpose or economic justification;
b. The client is not properly identified;
c. The amount involved is not commensurate with the business or financial capacity of the client;
d. Taking into account all known circumstances, it may be perceived that the clients transaction is structured in order to avoid being the subject of reporting requirements under the Act; - Example: Series of deposits below 500k, like 100k a day for several days. It may not fall under covered transactions, but it could be a suspicious transaction. It may be said that it was structured in such a way as to avoid reporting.
e. Any circumstance relating to the transaction which is observed to deviate from the profile of the client and/or the clients past transactions with the covered institution; - Example: If your bank account is always at the maintaining balance or even below, and then suddenly you make a deposit of P50,000 every month. So that deviates from the normal pattern or normal client transaction.
Special Commercial Laws - Finals EH 403 [2011 2012]
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f. The transaction is in any way related to an unlawful activity or offense under this Act that is about to be, is being or has been committed; or
g. Any transaction that is similar or analogous to any of the foregoing.
To fall under suspicious transaction, it is not necessary that you made the transaction within 1 day, because there is no threshold amount. Regardless of the amount for as long as these circumstances exist.
It is said that because of these suspicious transactions, the covered institutions must act as if they were detectives. They are expected to know the lifestyle, spending habits and financial capacity of their client. They are supposed to have a comprehensive profile of their clients. So that if a client makes this deposit and they sense that something is amiss based on the information that they have, then they report it to AMLC, under suspicious transaction.
No problem with covered transactions because theyonly require an objective identification. But if you look at suspicious transactions, they are subjective, they are based on the evaluation of the covered institution.So WON a transaction is a suspicious transaction, it is up to the covered institution to decide.
The client also cannot sue the bank for reporting his transaction under suspicious transaction. Because as discussed earlier, the fact that you were reported does not necessarily mean that you are into money laundering. These are just bases for the AMLC to make further investigation. In fact it is also under the law that the covered institution shall not be held administratively liable. But there is also a provision under malicious reporting which will be discussed later.
When will the obligation to make a report arise?
1. Under covered transactions, if the amount exceeds 500K, within ONE BANKING DAY 2. Under suspicious transactions, regardless of the amount
So take note of this: when is it a covered transaction and when is it a suspicious transaction.
There are 3 stages in the money-laundering. 1. Placement. 2. Layering. 3. Final stage is integration. You integrate the money to legitimate activities.
WHEN IS MONEY LAUNDERING COMMITTED
Money laundering is a crime whereby the proceeds of an unlawful activity are transacted, thereby making them appear to have originated from legitimate sources. It is committed by the following:
a. Any person knowing that any monetary instrument or property represents, involves, or relates to, the proceeds of any unlawful activity, transacts or attempts to transact said monetary instrument or property.
- Letter A refers to a person transacting or attempting to transact. - Example: I am the money launderer, I know that this money comes from gambling or illegal source, I attempt to make a placement in the bank, or I already made a placement with the bank. So I am therefore liable for money laundering.
b. Any person knowing that any monetary instrument or property involves the proceeds of any unlawful activity, performs or fails to perform any act as a result of which he facilitates the offense of money laundering referred to in paragraph (a) above.
- Even if you are not the one who transacted or attempted to transact, but you performed or you failed to perform any act, as a result of which you facilitated the offense. - Example: X is the money launderer. Y has an account with the bank and he has already established a record with the bank. X then asks Y if he could deposit the money in the latters account, and Y acceded to his request, knowing that the proceeds come from an unlawful activity.
c. Any person knowing that any monetary instrument or property is required under this Act to be disclosed and filed with the Anti-Money Laundering Council (AMLC), fails to do so.
- There was no money laundering but there was a failure on the part of the covered institution to report to the AMLA Council a covered or suspicious transaction.
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1. There wasa transaction or an attempted transaction 2. The proceeds comes from an unlawful activity or a predicate crime 3. Knowledgethat the proceeds comes from an unlawful activity or a predicate crime
Is it necessary in money laundering to prove that there was intent to make it appear that the proceeds have originated from legitimate sources?
- No need to prove intent otherwise it would be easy for that person to deny intent. In intent, we could not fathom the sanctuaries of a person as it is very personal to him. - There are only 3 elements. Intent is not one of them. - Intent is not a valid defense. Money laundering is malum prohibitum, intent is not necessary.
What if I am a money launderer. I have money from gambling, then I made a placement or investment in shares of stock. I have no intention to launder the money, but I have an intention to make an investment, to make my money grow, or to place it in an insurance. Will I still be liable for money laundering even if I only wanted to make an investment?
- Yes, it is still money laundering. You dont have to prove that the person had the intention to make it appear clean. What is important is that you make a transaction, and the transaction proceeds from an unlawful activity and you have knowledge that the proceeds comes from an unlawful activity (the 3 elements of the crime).
Do you need to prove actual knowledge?
- No, because otherwise it would just be easy to say that I have no knowledge. You need not prove actual knowledge. There is a presumption of knowledge on the part of the person laundering the money. You take into account the attendant circumstances. But you dont need to prove actual knowledge.
Examples of money laundering:
- Mere opening of an account with a bank the person opening an account has knowledge that the proceeds came from kidnapping. That person is already liable for money laundering. - A teller who assists in the opening of an account and that teller has knowledge that the proceeds came from unlawful activities would also be liable for money laundering.
UNLAWFUL ACTIVITIES OR PREDICATE CRIMES
"Unlawful activity" refers to any act or omission or series or combination thereof involving or having relation to the following:
1. Kidnapping for ransom under Article 267 of Act No. 3815, otherwise known as the Revised Penal Code, as amended; 2. Sections 3, 4, 5, 7, 8 and 9 of Article Two of Republic Act No. 6425, as amended, otherwise known as the Dangerous Drugs Act of 1972; 3. Section 3 paragraphs B, C, E, G, H and I of Republic Act No. 3019, as amended; otherwise known as the Anti-Graft and Corrupt Practices Act; 4. Plunder under Republic Act No. 7080, as amended; 5. Robbery and extortion under Articles 294, 295, 296, 299, 300, 301 and 302 of the Revised Penal Code, as amended; 6. Jueteng and Masiao punished as illegal gambling under Presidential Decree No. 1602; 7. Piracy on the high seas under the Revised Penal Code, as amended and Presidential Decree No. 532; 8. Qualified theft under Article 310 of the Revised Penal Code, as amended; - Not just theft, but QUALIFIED THEFT 9. Swindling under Article 315 of the Revised Penal Code, as amended; 10. Smuggling under Republic Act Nos. 455 and 1937; 11. Violations under Republic Act No. 8792, otherwise known as the Electronic Commerce Act of 2000; 12. Hijacking and other violations under Republic Act No. 6235; destructive arson and murder, as defined under the Revised Penal Code, as amended, including those perpetrated by terrorists against non-combatant persons and similar targets; - Hijacking, destructive arson, murder 13. Fraudulent practices and other violations under Republic Act No. 8799, otherwise known as the Securities Regulation Code of 2000; 14. Felonies or offenses of a similar nature that are punishable under the penal laws of OTHER COUNTRIES.
This is an exclusive enumeration. To constitute money laundering, the proceeds must come from any of the above-listed activities. Otherwise, it would not be money laundering.
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Take note, the law enumerates 14 unlawful activities or predicate crimes. Actually these are just the general categorization. If you look at the implementing rules, there are 100+ something. But you need not memorize those 100, just take note of the general categorizations.
Now if you look at these crimes, these are crimes whereinhuge amounts of money are involved. - Thats probably why rape and homicide are not included. (Murder is included, under number 12)
Whats the reason why the law specifies that only those activities would constitute money laundering? Why not just any crime? - These are serious crimes. If you include petty crimes, that would most likely be used by the enforcement agencies as probing commissions to arrest just anybody for money laundering. So the law limits the predicate crimes so that they could focus on these crimes.
Examples of crimes which do not give rise to money laundering: - Carnapping - Tax evasion - Prostitution - Human trafficking - Illegal recruitment - Voyeurism
ANTI-MONEY LAUNDERING COUNCIL
The Anti-Money Laundering Council (AMLA Council) is the agency is tasked for the enforcement of the anti-money laundering act.
COMPOSITION OF THE AMLA COUNCIL:
1. Governor of the BSP (chairman) 2. Commissioner of the Insurance Commission (member) 3. Commissioner of the SEC (member)
FUNCTIONS OF THE AMLC:
1. to require and receive covered transaction reports from covered institutions; 2. to issue orders addressed to the appropriate Supervising Authority or the covered institution to determine the true identity of the owner of any monetary instrument or property subject of a covered transaction report or request for assistance from a foreign State, or believed by the Council, on the basis of substantial evidence, to be, in whole or in part, wherever located, representing, involving, or related to, directly or indirectly, in any manner or by any means, the proceeds of an unlawful activity; 3. to institute civil forfeiture proceedings and all other remedial proceedings through the Office of the Solicitor General; 4. to cause the filing of complaints with the Department of Justice or the Ombudsman for the prosecution of money laundering offenses; 5. to initiate investigations of covered transactions, money laundering activities and other violations of this Act; 6. to freeze any monetary instrument or property alleged to be proceeds of any unlawful activity; 7. to implement such measures as may be necessary and justified under this Act to counteract money laundering; 8. to receive and take action in respect of, any request from foreign states for assistance in their own anti-money laundering operations provided in this Act; 9. to develop educational programs on the pernicious effects of money laundering, the methods and techniques used in money laundering, the viable means of preventing money laundering and the effective ways of prosecuting and punishing offenders; and 10. to enlist the assistance of any branch, department, bureau, office, agency or instrumentality of the government, including government-owned and - controlled corporations, in undertaking any and all anti-money laundering operations, which may include the use of its personnel, facilities and resources for the more resolute prevention, detection and investigation of money laundering offenses and prosecution of offenders.
FREEZING OF MONETARY INSTRUMENT OR PROPERTY
SEC. 10. Authority to Freeze. Upon determination that probable cause exists that any deposit or similar account is in any way related to an unlawful activity, the AMLC may issue a freeze order, which shall be effective immediately, on the account for a period not exceeding fifteen (15) days. Notice to the depositor that his account has been frozen shall be issued simultaneously with the issuance of the freeze order. The depositor shall have seventy-two (72) hours upon receipt of the notice to explain why the freeze order should be lifted. The AMLC has seventy-two (72) hours to dispose of the depositors explanation. If it fails to act within seventy- two (72) hours from receipt of the depositors explanation, the freeze order shall automatically be dissolved. The fifteen (15)-day freeze order of the AMLC may be extended upon order of the court, provided that the fifteen (15)-day period shall be Special Commercial Laws - Finals EH 403 [2011 2012]
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tolled pending the courts decision to extend the period.
No court shall issue a temporary restraining order or writ of injunction against any freeze order issued by the AMLC except the Court of Appeals or the Supreme Court.
The AMLA council upon EX PARTE APPLICATION can file with the COURT OF APPEALS after determination of PROBABLE CAUSE for a freeze order. - Freeze order effective immediately and it shall be for a period of 20 days. - Effect money cannot be withdrawn.
It is a provisional remedy because it does not require that there be a case filed for violation of the anti-money laundering law. Even if it is still in the process of investigation, for as long as the AMLC can establish probable cause, then it can apply for a freeze order with the COURT OF APPEALS.
AUTHORITY TO INQUIRE INTO BANK DEPOSITS
SEC. 11. Authority to Inquire into Bank Deposits. Notwithstanding the provisions of Republic Act No. 1405, as amended; Republic Act No. 6426, as amended; Republic Act No. 8791, and other laws, the AMLC may inquire into or examine any particular deposit or investment with any banking institution or non-bank financial institution upon order of any competent court in cases of violation of this Act when it has been established that there is probable cause that the deposits or investments involved are in any way related to a money laundering offense: Provided, That this provision shall not apply to deposits and investments made prior to the effectivity of this Act.
The AMLA council may inquire into any bankor banking institution as to the bank deposits when there is a probable cause that the bank deposits is related or are related to unlawful activities. This is an exception to the law on secrecy of bank deposits.
Requirements: 1. AMLC must establish that there is PROBABLE CAUSE that the deposits arose from the unlawful activity 2. There must be a COURT ORDER. - EXC: AMLC by virtue of a resolution can immediately inquire into bank deposits without need of court order, if they can establish that the proceeds arose from certain predicate crimes such as: a. KIDNAPPING, b. VIOLATION of the COMPREHENSIVE DANGEROUS DRUGS ACT, c. HIJACKING, d. DESTRUCTIVE ARSON, e. MURDER. - In these instances, no need for a court order. Just a resolution from the AMLC.
SEC. 5. Jurisdiction of Money Laundering Cases. The regional trial courts shall have jurisdiction to try all cases on money laundering. Those committed by public officers and private persons who are in conspiracy with such public officers shall be under the jurisdiction of the Sandiganbayan.
JURISDICTION OVER MONEY LAUNDERING CASES
- GENERAL RULE: The RTC has jurisdiction to try all cases on money laundering. - EXCEPT: the SANDIGANBAYAN has jurisdiction of those committed by public officers and private persons who are in conspiracy with such public officers. - Note that the CA has the right to issue freeze orders.
SEC. 6. Prosecution of Money Laundering. (a) Any person may be charged with and convicted of both the offense of money laundering and the unlawful activity as herein defined. (b) Any proceeding relating to the unlawful activity shall be given precedence over the prosecution of any offense or violation under this Act without prejudice to the freezing and other remedies provided.
So you can be both charged and convicted of: 1. money laundering and 2. at the same time for the unlawful activity
- These are 2 separate offenses. Money laundering is NOT a continuing offense of the unlawful activity. They have separate elements.
The proceeding relating to the unlawful activity shall be given precedence over the prosecution of any offense or violation of this act.
Is it necessary that there must be a prior conviction of the unlawful activity or the predicate crime before you can be charged for money laundering? - No! Because the elements of money laundering are different from the elements of the unlawful activity. If you look at also the implementing Special Commercial Laws - Finals EH 403 [2011 2012]
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rules it specifically states that it is not necessary to prove beyond reasonable doubt that you committed the unlawful activity before you can be convicted of money laundering. - Prior conviction of unlawful act is not also necessary. Prosecution for money laundering activities can proceed independently of the predicate crime because the reason is that they have different elements. - If you are acquitted for the unlawful activity you can still be tried for the money laundering.
What if the tenor of the judgment in the trial for the predicate crime is that this person is truly innocent, that this person did not commit the crime? What would be the effect? - That would have a great weight on the pending case for money laundering. If in the predicate crime you are acquitted because you truly did not commit the crime (not just on mere reasonable doubt), then you cannot establish the other elements. - The case for the predicate crime shall not be a prejudicial question to the casefor money laundering. But take note Section 6(b).
PENAL PROVISIONS
IMPRISONMENT FINE (a) Penalties for the Crime of Money Laundering.
- a. transacts or attempts to transact 7 14 years
(imprisonment AND fine) Not less than 3M but not more than twice the value of the monetary instrument or property involved in the offense (a) Penalties for the Crime of Money Laundering.
- b. facilitates the commission 4 7 years
(imprisonment AND fine) 1.5M 3M (a) Penalties for the Crime of Money Laundering.
-c. failure to disclose 6 months 4 years
(imprisonment AND/OR fine) 100k 500k (b) Penalties for Failure to Keep Records.
6 months 1 year
(imprisonment AND/OR fine) 100k 500k (c) Malicious Reporting - may include the covered institution, especially in suspicious transactions (wherein it is subjective). But the covered institution would not be liable if it was in good faith - includes any public official or employee who is called upon to testify and refuses to do the same or purposely fails to testify 6 months 4 years
(imprisonment AND fine) 100k 500k (d) Breach of Confidentiality.
- under Section 9(c) 3 8 years
(imprisonment AND fine) 500k 1M
MUTUAL ASSISTANCE AMONG STATES
a. Request for Assistance from a Foreign State. - Where a foreign State makes a request for assistance in the investigation or prosecution of a money laundering offense, the AMLC may execute the request or refuse to execute the same and inform the foreign State of any valid reason for not executing the request or for delaying the execution thereof. The principles of mutuality and reciprocity shall, for this purpose, be at all times recognized.
b. Powers of the AMLC to Act on a Request for Assistance from a Foreign State. - The AMLC may execute a request for assistance from a foreign State by: (1) tracking down, freezing, restraining and seizing assets alleged to be proceeds of any unlawful activity under the procedures laid down in this Act; (2) giving information needed by the foreign State within the procedures laid down in this Act; and (3) applying for an order of forfeiture of any monetary instrument or property in the court: Provided, That the court shall not issue such an order unless the application is accompanied by an authenticated copy of the order of a court in the requesting State ordering the forfeiture of said monetary instrument or property of a person who has been convicted of a money laundering offense in the requesting State, and a certification or an affidavit of a competent officer of the requesting State stating that the conviction and the order of forfeiture are final and that no further appeal lies in respect of either. Special Commercial Laws - Finals EH 403 [2011 2012]
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c. Obtaining Assistance from Foreign States. - The AMLC may make a request to any foreign State for assistance in (1) tracking down, freezing, restraining and seizing assets alleged to be proceeds of any unlawful activity; (2) obtaining information that it needs relating to any covered transaction, money laundering offense or any other matter directly or indirectly related thereto; (3) to the extent allowed by the law of the foreign State, applying with the proper court therein for an order to enter any premises belonging to or in the possession or control of, any or all of the persons named in said request, and/or search any or all such persons named therein and/or remove any document, material or object named in said request: Provided, That the documents accompanying the request in support of the application have been duly authenticated in accordance with the applicable law or regulation of the foreign State; and (4) applying for an order of forfeiture of any monetary instrument or property in the proper court in the foreign State: Provided, That the request is accompanied by an authenticated copy of the order of the regional trial court ordering the forfeiture of said monetary instrument or property of a convicted offender and an affidavit of the clerk of court stating that the conviction and the order of forfeiture are final and that no further appeal lies in respect of either.
d. Limitations on Requests for Mutual Assistance. - The AMLC may refuse to comply with any request for assistance where the action sought by the request contravenes any provision of the Constitution or the execution of a request is likely to prejudice the national interest of the Philippines unless there is a treaty between the Philippines and the requesting State relating to the provision of assistance in relation to money laundering offenses.
e. Requirements for Requests for Mutual Assistance from Foreign States. - A request for mutual assistance from a foreign State must (1) confirm that an investigation or prosecution is being conducted in respect of a money launderer named therein or that he has been convicted of any money laundering offense; (2) state the grounds on which any person is being investigated or prosecuted for money laundering or the details of his conviction; (3) give sufficient particulars as to the identity of said person; (4) give particulars sufficient to identify any covered institution believed to have any information, document, material or object which may be of assistance to the investigation or prosecution; (5) ask from the covered institution concerned any information, document, material or object which may be of assistance to the investigation or prosecution; (6) specify the manner in which and to whom said information, document, material or object obtained pursuant to said request, is to be produced; (7) give all the particulars necessary for the issuance by the court in the requested State of the writs, orders or processes needed by the requesting State; and (8) contain such other information as may assist in the execution of the request.
f. Authentication of Documents. - For purposes of this Section, a document is authenticated if the same is signed or certified by a judge, magistrate or equivalent officer in or of, the requesting State, and authenticated by the oath or affirmation of a witness or sealed with an official or public seal of a minister, secretary of State, or officer in or of, the government of the requesting State, or of the person administering the government or a department of the requesting territory, protectorate or colony. The certificate of authentication may also be made by a secretary of the embassy or legation, consul general, consul, vice consul, consular agent or any officer in the foreign service of the Philippines stationed in the foreign State in which the record is kept, and authenticated by the seal of his office.
g. Extradition. - The Philippines shall negotiate for the inclusion of money laundering offenses as herein defined among extraditable offenses in all future treaties. - Money laundering is not yet an extraditable offense
IMPORTANT TOPICS IN AMLA: 1. Covered transactions 2. Suspicious transactions 3. Predicate crimes 4. Manner by which you commit money laundering (3)
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FOREIGNINVESTMENTS ACT (R.A. 7042)
POLICY OF THE LAW
SEC. 2. Declaration of Policy. - It is the policy of the State to attract, promote and welcome productive investments from foreign individuals, partnerships, corporations, and governments, including their political subdivisions, in activities which significantly contribute to national industrialization and socio-economic development to the extent that foreign investment is allowed in such activity by the Constitution and relevant laws. Foreign investments shall be encouraged in enterprises that significantly expand livelihood and employment opportunities for Filipinos; enhance economic value of farm products; promote the welfare of Filipino consumers; expand the scope, quality and volume of exports and their access to foreign markets; and/or transfer relevant technologies in agriculture, industry and support services. Foreign investments shall be welcome as a supplement to Filipino capital and technology in those enterprises serving mainly the domestic market.
As a general rule, there are no restrictions on extent of foreign ownership of export enterprises. In domestic market enterprises, foreigners can invest as much as one hundred percent (100%) equity except in areas included in the negative list. Foreign owned firms catering mainly to the domestic market shall be encouraged to undertake measures that will gradually increase Filipino participation in their businesses by taking in Filipino partners, electing Filipinos to the board of directors, implementing transfer of technology to Filipinos, generating more employment for the economy and enhancing skills of Filipino workers.
Basically the purpose is to encourage FOREIGN INVESTMENTS because that would translate to the creation of jobs, etc. In other words, it has a multiplier effect.
DEFINITION OF TERMS
SEC. 3. Definitions. As used in this Act:
a) the term Philippine National shall mean a citizen of the Philippines or a domestic partnership or association wholly owned by citizens of the Philippines; or a corporation organized under the laws of the Philippines of which at least sixty percent (60%) of the capital stock outstanding and entitled to vote is owned and held by citizens of the Philippines or a corporation organized abroad and registered as doing business in the Philippines under the Corporation Code of which one hundred percent (100%) of the capital stock outstanding and entitled to vote is wholly owned by Filipinos or a trustee of funds for pension or other employee retirement or separation benefits, where the trustee is a Philippine national and at least sixty percent (60%) of the fund will accrue to the benefit of Philippine nationals: Provided, That where a corporation and its non-Filipino stockholders own stocks in a Securities and Exchange Commission (SEC) registered enterprise, at least sixty percent (60%) of the capital stock outstanding and entitled to vote of each of both corporations must be owned and held by citizens of the Philippines and at least sixty percent (60%) of the members of the Board of Directors of each of both corporations must be citizens of the Philippines, in order that the corporation shall be considered a Philippine national; (as amended by R.A. 8179).
b) the term investment shall mean equity participation in any enterprise organized or existing under the laws of the Philippines;
c) the term foreign investment shall mean an equity investment made by a non- Philippine national in the form of foreign exchange and/or other assets actually transferred to the Philippines and duly registered with the Central Bank which shall assess and appraise the value of such assets other than foreign exchange;
xxxxxxx
e) the term export enterprise shall mean an enterprise wherein a manufacturer, processor or service (including tourism) enterprise exports sixty percent (60%) or more of its output, or wherein a trader purchases products domestically and exports sixty percent (60%) or more of such purchases;
f) the term domestic market enterprise shall mean an enterprise which products goods for sale, or renders services to the domestic market entirely or if exporting a portion of its output fails to consistency export at least sixty percent (60%) thereof; and
g) the term Foreign Investments Negative List or Negative List shall mean a list of areas of economic activity whose foreign ownership is limited to a maximum of forty percent (40%) of the equity capital of the enterprises engaged therein.
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I. EXPORT ENTERPRISE: at least 60% of its production or output is exported
GENERAL RULE: There are no restrictions on extent of foreign ownership (can be 100% owned by foreigners) - Regardless of the capitalization, for as long as you are into export, you can be 100% owned by foreigners. EXCEPTION: If they are engaged in activities wherein ownership is limited or restricted in the negative list
II. DOMESTIC ENTERPRISE: less than 60% of its production or output is exported
GENERAL RULE: At least 60% Filipinos; at most 40% Foreigners. Cannot be 100% foreign owned. EXCEPTIONS: 100% foreign ownership if: 1. Paid-up capital of at least $200,000; or 2. Involved in advanced technology as certified by the DOST (capital must be at least $100,000); or 3. Minimum of 50 employees (capital must be at least $100,000).
Examples:
1. 55% export. Paid-up capital is only $150k. 50 employees. Can I be 100% foreign-owned? - YES. Although you are a domestic enterprise, but you employ 50 people (and the capital is more than $100k). Exception #3.
2. 75% export. Paid-up capital of $50k. 30 employees. Can I be 100% foreign- owned? - YES. Because you are an export enterprise. Regardless of the capitalization, an export enterprise can be 100% foreign owned for as long as it is not engaged in activities where ownership limited in the negative list.
TAKE NOTE of the items in the 8 TH FOREIGN INVESTMENT NEGATIVE LIST
So: 1. See if it is in the negative list. 2. If not, follow the rules on foreign ownership above
When is a corporation considered as a Philippine national? - When at least 60% of the outstanding capital stock is owned by Filipinos. - If the percentage of Filipino ownership in the corporation is less than 60%, only the number of shares corresponding to such percentage shall be considered as of Philippine nationality and the other shares shall be recorded as belonging to aliens.
SEC. 3. Definitions. As used in this Act: xxxxxxx d) the phrase doing business shall include soliciting orders, service contracts, opening offices, whether called liaison offices or branches; appointing representatives or distributors domiciled in the Philippines or who in any calendar year stay in the country for a period or periods totaling one hundred eighty (180) days or more; participating in the management, supervision or control of any domestic business, firm, entity or corporation in the Philippines; and any other act or acts that imply a continuity of commercial dealings or arrangements, and contemplate to that extent the performance of acts or works, or the exercise of some of the functions normally incident to, and in progressive prosecution of, commercial gain or of the purpose and object of the business organization: Provided, however, That the phrase doing business shall not be deemed to include mere investment as a shareholder by a foreign entity in domestic corporations duly registered to do business, and/or the exercise of rights as such investor; nor having a nominee director or officer to represent its interests in such corporation; nor appointing a representative or distributor domiciled in the Philippines which transacts business in its own name and for its own account;
What are the requirements if already doing business in the Philippines? - You have to get a license from the SEC, appoint a resident agent etc.
What are the consequences if youre doing business without the necessary permit? - GENERAL RULE: Cannot sue but can be sued. - EXCEPTION: ESTOPPEL. o Merryl Lynche case: FC tried to sue DC. DC raised the defense that it cannot be sued because FC is doing business without license. o SC: DC already estopped from questioning the personality of FC. Estoppel also applies to domestic corporations dealing with foreign corporations without license.
Can a former natural born Filipino now a naturalized US citizen acquire land in the Philippines? - YES Under the FIA but limited only to a certain number of hectares (5,000 sqm for urban and 3,000 sqm for rural)
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DOING BUSINESS:
1. soliciting orders, service contracts, opening offices, whether called liaison offices or branches; 2. appointing representatives or distributors domiciled in the Philippines or who in any calendar year stay in the country for a period or periods totaling one hundred eighty (180) days or more; 3. participating in the management, supervision or control of any domestic business, firm, entity or corporation in the Philippines; and 4. any other act or acts that imply a continuity of commercial dealings or arrangements, and contemplate to that extent the performance of acts or works, or the exercise of some of the functions normally incident to, and in progressive prosecution of, commercial gain or of the purpose and object of the business organization - so, not isolated
NOT DOING BUSINESS:
1. not be deemed to include mere investment as a shareholder by a foreign entity in domestic corporations duly registered to do business, and/or the exercise of rights as such investor; nor 2. having anominee director or officer to represent its interests in such corporation; nor 3. appointing a representative or distributor domiciled in the Philippines which transacts business in its own name and for its own account;
REGISTRATION OF INVESTMENTS OF NON-PHILIPPINE NATIONALS
SEC. 5. Registration of Investments of Non-Philippine Nationals. Without need of prior approval, a non-Philippine national, as that term is defined in Section 3 a), and not otherwise disqualified by law may, upon registration with the Securities and Exchange Commission (SEC), or with the Bureau of Trade Regulation and Consumer Protection (BTRCP) of the Department of Trade and Industry in the case of single proprietorships, do business as defined in Section 3 d) of this Act or invest in a domestic enterprise up to one hundred percent (100%) of its capital, unless participation of non-Philippine nationals in the enterprise is prohibited or limited to a smaller percentage by existing law and/or under the provisions of this Act. The SEC or BTRCP, as the case may be, shall not impose any limitations on the extent of foreign ownership in an enterprise additional to those provided in this Act: Provided, however, That any enterprise seeking to avail of incentives under the Omnibus Investment Code of 1987 must apply for registration with the Board of Investments (BOI), which shall process such application for registration in accordance with the criteria for evaluation prescribed in said Code: Provided, finally, That a non-Philippine national intending to engage in the same line of business as an existing joint venture, in which he or his majority shareholder is a substantial partner, must disclose the fact and the names and addresses of the partners in the existing joint venture in his application for registration with SEC. During the transitory period as provided in Section 15 hereof, SEC shall disallow registration of the applying non-Philippine national if the existing joint venture
FOREIGN INVESTMENTS IN EXPORT ENTERPRISES
SEC. 6. Foreign Investment in Export Enterprises. Foreign investment in export enterprises whose products and services do not fall within Lists A and B of the Foreign Investment Negative List provided under Section 8 hereof is allowed up to one hundred percent (100%) ownership.
Export enterprises which are non-Philippine nationals shall register with BOI and submit the reports that may be required to ensure continuing compliance of the export enterprise with its export requirement. BOI shall advise SEC or BTRCP, as the case may be, of any export enterprise that fails to meet the export ratio requirement. The SEC or BTRCP shall thereupon order the non-complying export enterprise to reduce its sales to the domestic market to not more than forty percent (40%) of its total production; failure to comply with such SEC or BTRCP order, without justifiable reason, shall subject the enterprise to cancellation of SEC or BTRCP registration, and/or the penalties provided in Section 14 hereof.
FOREIGN INVESTMENT IN DOMESTIC MARKET ENTERPRISES
SEC. 7. Foreign Investment in Domestic Market Enterprises. Non-Philippine nationals may own up to one hundred percent (100%) of domestic market enterprises unless foreign ownership therein is prohibited or limited by the Constitution existing law or the Foreign Investment Negative List under Section 8 hereof. (As amended by R.A. 8179)
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EIGHTH REGULAR FOREIGN INVESTMENT NEGATIVE LIST LIST A: FOREIGN OWNERSHIP IS LIMITED BY MANDATE OF THE CONSTITUTION AND SPECIFIC LAWS No Foreign Equity 1. Mass Media except recording 2. Practice of all professions
a. Engineering i. Aeronautical engineering ii. Agricultural engineering iii. Chemical engineering iv. Civil engineering v. Electrical engineering vi. Electronics and Communication engineering vii. Geodetic engineering viii. Mechanical engineering ix. Metallurgical engineering x. Mining engineering xi. Naval Architecture and Marine engineering xii. Sanitary engineering
b. Medicine and Allied Professions i. Medicine ii. Medical Technology iii. Dentistry iv. Midwifery v. Nursing vi. Nutrition and Dietetics vii. Optometry viii. Pharmacy ix. Physical and Occupational Therapy x. Radiologic and X-ray Technology xi. Veterinary Medicine
c. Accountancy d. Architecture e. Criminology f. Chemistry g. Customs Brokerage h. Environmental Planning i. Forestry j. Geology k. Interior Design l. Landscape Architecture m. Law n. Librarianship o. Marine Deck Officers p. Marine Engine Officers q. Master Plumbing r. Sugar Technology s. Social Work t. Teaching u. Agriculture v. Fisheries w. Guidance counseling
3. Retail trade enterprises with paid-up capital of less than US$2,500,000 - Mentioned repeatedly. Take note.
4. Cooperatives 5. Private Security Agencies 6. Small-scale Mining 7. Utilization of Marine Resources in archipelagic waters, territorial sea, andexclusive economic zone as well as small-scale utilization of natural resources inrivers, lakes, bays, and lagoons 8. Ownership, operation and management of cockpits 9. Manufacture, repair, stockpiling and/or distribution of nuclear weapons 10. Manufacture, repair, stockpiling and/or distribution of biological, chemical andradiological weapons and anti-personnel mines (Various treaties to which thePhilippines is a signatory and conventions supported by the Philippines) 11. Manufacture of firecrackers and other pyrotechnic devices
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Up to Twenty Percent(20%) Foreign Equity 12. Private radio communications network
Up to Twenty-Five Percent(25%) Foreign Equity 13. Private recruitment, whether for local or overseas employment
14. Contracts for the construction and repair of locally-funded public works except: a. Infrastructure/development projects; and b. Projects which are foreign funded or assisted and required to undergo international competitive bidding
15. Contracts for the construction of defense related structures
Up to Thirty Percent (30%) Foreign Equity 16. Advertising Up to Forty Percent (40%) Foreign Equity 17. Exploration, development and utilization of natural resources
18. Ownership of private lands
19. Operation and management of public utilities
20. Ownership/establishment and administration of educational institutions
21. Culture, production, milling, processing, trading excepting retailing, of rice and corn and acquiring, by barter, purchase or otherwise, rice and corn and the by-products thereof
22. Contracts for the supply of materials, goods and commodities to government-owned orcontrolled corporation, company, agency or municipal corporation
23. Project Proponent and Facility Operator of a BOT project requiring a public utilitiesfranchise
24. Operation of deep sea commercial fishing vessels
25. Adjustment Companies
26. Ownership of condominium units where the common areas in the condominium project are co-owned by the owners of the separate units or owned by a corporation Up to Sixty Percent (60%) Foreign Equity 27. Financing companies regulated by the Securities and Exchange Commission
28. Investment houses regulated by the SEC
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LIST B: FOREIGN OWNERSHIP IS LIMITED FOR REASONS OF SECURITY, DEFENSE,RISK TO HEALTH AND MORALS AND PROTECTION OF SMALL- AND MEDIUMSCALEENTERPRISES Up to Forty Percent (40 %) Foreign Equity 1. Manufacture, repair, storage, and/ordistribution of products and/or ingredientsrequiring Philippine National Police (PNP) clearance:
a) Firearms (handguns to shotguns), parts of firearms and ammunition therefor,instruments or implements used or intended to be used in the manufactureof firearms b) Gunpowder c) Dynamite d) Blasting supplies e) Ingredients used in making explosives: i. Chlorates of potassium and sodium ii. Nitrates of ammonium, potassium, sodium, barium, copper (11), lead (11), calcium and cuprite iii. Nitric acid iv. Nitrocellulose v. Perchlorates of ammonium, potassium and sodium vi. Dinitrocellulose vii. Glycerol viii. Amorphous phosphorus ix. Hydrogen peroxide x. Strontium nitrate powder xi. Toluene f) Telescopic sights, sniper scope and other similar devices
However, the manufacture or repair of these items may be authorized by the Chief of the PNP to non-Philippine nationals; Provided that a substantial percentage of output, as determined by the said agency, is exported. Provided further that the extent of foreign equity ownership allowed shall be specified in the said authority/clearance 2. Manufacture, repair, storage and/or distribution of products requiring Department of National Defense (DND) clearance:
a) Guns and ammunition for warfare b) Military ordnance and parts thereof (e.g., torpedoes, depth charges, bombs, grenades, missiles) c) Gunnery, bombing and fire control systems and components d) Guided missiles/missile systems and components e) Tactical aircraft (fixed and rotary-winged), parts and components thereof f) Space vehicles and component systems g) Combat vessels (air, land and naval) and auxiliaries h) Weapons repair and maintenance equipment i) Military communications equipment j) Night vision equipment k) Stimulated coherent radiation devices, components and accessories l) Armament training devices m) Other as may be determined by the Secretary of the DND
However, the manufacture or repair of theseitems may be authorized by the Secretary of theDND to non-Philippine nationals; Provided that asubstantial percentage of output, as determinedby the said agency, is exported. Provided further that the extent of foreign equity ownershipallowed shall be specified in the said authority/clearance 3. Manufacture and distribution of dangerous drugs
4. Sauna and steam bathhouses, massage clinics and other like activities regulated by law because of risks posed to public health and morals
5. All forms of gambling, except those covered byinvestment agreements with PAGCOR operating within special economic zones administered by the Philippine Economic Zone Authority
6. Domestic market enterprises with paid-in equity capital of less than the equivalent ofUS$200,000 - If 200k or more, 100% 7. Domestic market enterprises which involve advanced technology or employ at least fifty (50) direct employees with paid-in-equity capital of less than the equivalent ofUS$100,000 - If 100k or more, 100% Special Commercial Laws - Finals EH 403 [2011 2012]
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THE WAREHOUSERECEIPTS LAW (ACT NO. 2137)
Applicable only to receipts issued by a warehouseman. If the receipt is not issued by a warehouseman, then the warehouse receipts law is not applicable but the pertinent provisions under the Civil Code regarding documents of title. Warehouse Receipt it is written acknowledgement by a warehouseman that he has received and holds certain goods therein described in his warehouse for the person to whom it is issued.
Essentially a warehouse receipt is a document of title to goods, and it serves two functions: 1. It is a CONTRACT simple contract evidencing the underlying contract of deposit or of carriage 2. Evidence of RECEIPT of goods.
The beauty of the warehouse receipt is that it can be negotiated or it can be transferred, such that whoever is the purchaser, the indorsee or the transferee could acquire title over the goods without the manual or physical delivery of the good. Just by virtue of the warehouse receipt.
Under Section 1, only a warehouseman may issue a warehouse receipt.
Who is a warehouseman? - A person lawfully engaged in the business of storing goods for profit.
What type of goods can be a subject of a warehouse receipt? - Goods here refer to anything that can be traded, whether it is fungible or non-fungible. So normally, rice, copra, corn, grains. It may also include cement, canned goods, cars, paints, oil, fuel, lubricant, etc. - So, practically all goods which can be traded.
FORM OF RECEIPTS
The law does not require a specific form. So it could be printed, written, or whatever. Although the law under section 2 provides that a warehouse receipt should contain essential terms.
What are the (9) essential terms that must be embodied in the warehouse receipt?
a. The location of the warehouse where the goods are stored, - So that the holder would know where the goods are stored. Especially if the warehouseman has two or more warehouses.
b. The date of the issue of the receipt, - The date is prima facie the date of the perfection of the contract of deposit. It is also important to determine when the charges of the deposit would begin to arise.
c. The consecutive number of the receipt, - Again, for identification purposes. To distinguish one receipt from the other.
d. A statement whether the goods received will be delivered to the bearer, to a specified person or to a specified person or his order, - This will now determine whether the warehouse receipt is negotiable or not.
e. The rate of storage charges, - The consideration of the warehouseman. If the rate is not indicated, the warehouseman can still be paid reasonable fees.
f. A description of the goods or of the packages containing them, - Again for identification purposes. So that whoever makes a deposit has some form of assurance that he will get the same item back.
g. The signature of the warehouseman which may be made by his authorized agent, - The signature is the best evidence that he has received the goods and that he assumes the obligations in relation to the issuance of the warehouse receipts.
h. If the receipt is issued for goods of which the warehouseman is owner, either solely or jointly or in common with others, the fact of such ownership, and - If applicable. Not in all cases.
i. A statement of the amount of advances made and of liabilities incurred for which the warehouseman claims a lien. If the precise amount of such Special Commercial Laws - Finals EH 403 [2011 2012]
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advances made or of such liabilities incurred is, at the time of the issue of, unknown to the warehouseman or to his agent who issues it, a statement of the fact that advances have been made or liabilities incurred and the purpose thereof is sufficient. - We are talking here of the warehousemans lien. The advances and the liabilities incurred.
What is the effect if one or two or three items are omitted?
- The omission of any of the terms will not affect the validity of the warehouse receipt. - So the warehouse receipt is still valid but the warehouseman shall be liable to any person for all damages caused by the omission of any of the terms. - Example the name was not properly indicated and as a result, there was a misdelivery, so the warehouseman would be liable for damages.
A warehouseman may insert in a receipt issued by him any other terms and conditions provided that such terms and conditions shall not:
a. Be contrary to the provisions of this Act. b. In any wise impair his obligation to exercise that degree of care in the safe-keeping of the goods entrusted to him which is reasonably careful man would exercise in regard to similar goods of his own. - So you cannot lessen the degree of care required. - Any stipulation which would exempt the warehouseman from liability for negligence, such as goods were deposited for the account of and for the risk of the depositor shall be VOID.
KINDS OF WAREHOUSE RECEIPTS
A. NEGOTIABLE WAREHOUSE RECEIPT
a. Deliverable to the order of a specified person b. Deliverable to bearer
- A provision in a NEGOTIABLE warehouse receipt that the instrument is NON-NEGOTIABLE is VOID. So the warehouse receipt would still remain negotiable.
- When more than one negotiable receipt is issued for the same goods, the word Duplicate shall be plainly placed upon the face of every receipt, EXCEPT the first one issued. o A warehouseman shall be liable for all damages caused by his failure to do so to any one who purchased the subsequent receipt for value supposing it to be an original, even though the purchase is made AFTER the delivery of the goods by the warehouseman to the holder of the original receipt. o Example: A warehouseman issued the original to X, and there were other copies. The other copies were not stamped with the word Duplicate. The duplicate receipt was subsequently negotiated to Y. Y can hold the warehouseman liable provided that Y acquired the warehouse receipt in good faith and for value.
B. NON-NEGOTIABLE WAREHOUSE RECEIPT
- The goods received will be delivered to the depositor or to any specified person. - The receipt should be stamped on its face non-negotiable, otherwise, a holder believing it to be negotiable may treat the receipt as negotiable. The holder has to be a purchaser in good faith and for value.
With respect to markings, - If negotiable, it is not necessary that you stamp the word negotiable. Even in the absence of the word negotiable, it is still considered as negotiable if it contains words ofnegotiability. - In case of non-negotiable, it must be stamped with the word non- negotiable.
NEGOTIATION AND TRANSFER OF WAREHOUSE RECEIPTS
A. NEGOTIABLE WAREHOUSE RECEIPT
1. How negotiated:
a. By delivery - deliverable to BEARER - initially deliverable to a specified person or order but the latter indorses it in BLANK or BEARER
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- deliverable to the ORDER OF A SPECIFIED PERSON - initially deliverable to bearer but there is a SPECIAL INDORSEMENT - NOTE that if a negotiable warehouse receipt deliverable to bearer is indorsed specially, it will be converted into a receipt deliverable to order and can only be negotiated further by indorsement and delivery. o This is not the case with negotiable instruments because if a negotiable instrument is originally payable to bearer, it will always remain so payable regardless of the way it is endorsed, whether specially or in blank
What are the effects if a negotiable warehouse receipt deliverable to the order of a specified person is only delivered but there was no indorsement? (3) - The transferee acquires title against the transferor; - There is no direct obligation of the warehouseman; and - The transferee can compel the transferor to complete the negotiation by indorsing the instrument. Negotiation takes effect on the date of indorsement only.
For purposes of determining when you acquired a valid title, that is only on the date of the indorsement. But prior to the indorsement, there is no direct obligation of the warehouseman to hold the goods in your favor. So you are just like an assignee or a transferee of a non-negotiable warehouse receipt. o Indorsee of a NEGOTIABLE Warehouse Receipt: Direct obligation of the warehouseman to hold possession of the goods for him as if the warehouseman directly contracted with him. o Transferee of a NON-NEGOTIABLE Warehouse Receipt: prior to the actual indorsement, you do not have the direct obligation of the warehouseman. So meaning, it can be defeated by a levy or attachment or execution, or by the right of an unpaid seller.
2. Who may negotiate
a. The owner; b. By the person to whom possession of receipt was entrusted by the owner; - This applies only if deliverable to bearer. If not deliverable to bearer, you need the indorsement of the person to whom the warehouse receipt is issued.
3. Effects of Negotiation:
a. Negotiation of the document has the effect of manual delivery so as to constitute the transferee the owner of the goods. b. Negotiation carries with it both the title to and possession of the property.
4. Rights Acquired by Indorsee:
a. Such title to the goods as the person negotiating had or such title as the depositor had the ability to convey to a purchaser in good faith for value. b. The direct obligation of the warehouseman to hold possession of the goods for him.
Example: X (thief) stole the goods and deposited them in the warehouse. The warehouseman issued to him a negotiable warehouse receipt. Then X negotiated the warehouse receipt to Y. The real owner now files an action to recover title and possession of the goods deposited with the warehouseman. Who has a better right over the goods?
Is it Y, the indorsee of a negotiable warehouse receipt, or the real owner?
- The real owner has a better right. Y only acquired the title of the person negotiating the receipt. Since X is only a thief, he practically has no right over the goods. As between Y and the real owner, it is the real owner who has a better right. - Later on, when we speak of the obligations of the warehouseman, the warehouseman will not be held liable for his refusal to deliver the goods to Y.
5. Warranties on Sale of Warehouse Receipts:
A person who, for value, negotiates or transfers a receipt by indorsement or delivery, including one who assigns for value a claim secured by a receipt, unless a contrary intention appears, warrants: a. That the receipt is GENUINE; b. He has LEGAL RIGHT to negotiate or transfer it; c. He has no KNOWLEDGE of defects that may impair the validity or worth of the receipt; d. He has a RIGHT TO TRANSFER TITLE to the goods and that the goods are MERCHANTABLE or fit for a particular purpose whenever such Special Commercial Laws - Finals EH 403 [2011 2012]
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warranties would have been implied, if the contract of the parties had been to transfer without a receipt of the goods represented thereby.
However, the indorser DOES NOT WARRANT that the warehouseman will comply with his duties. - Unlike in a negotiable instrument, it is possible that an indorsee could warrant that the party primarily liable undertakes to pay, or that the instrument be accepted or paid or both.
If the warehouseman does not comply with his duties, can the indorsee go back to the indorser and hold him liable? - NO. Unless there is a breach of those warranties. - In warehouse receipts, there is no such thing as secondary liability. You cannot go back to the indorser, unless there is a breach of those warranties. - Recall in NIL that if upon default of the party primarily liable, you can go back to the party secondary liable.
B. NON-NEGOTIABLE WAREHOUSE RECEIPT
A non-negotiable warehouse receipt cannot be negotiated but it can be transferred or assigned by delivery to the transferee accompanied by a deed of assignment. You only deliver it, no need to indorse. If the receipt is indorsed, the transferee acquires no additional right.
Rights of the assignee of a non-negotiable warehouse receipt - You merely step into the shoes of the assignor. So you only acquire rights pertaining to the assignor.
Do you acquire the direct obligation of the warehouseman to hold the goods for you? - No. But not in all cases. You can acquire the direct obligation of the warehousemanonly after you have notified the warehouseman that a transfer of the warehouse receipt has been made. - Prior to the notification, you do not have the direct obligation of the warehouseman. The effect of that is that your right over the goods could be defeated by a levy, attachment, execution or claim of an unpaid creditor. - So if you are the transferee of a non-negotiable warehouse receipt, the first thing that you should do is to immediately notify the warehouseman so that you would have the direct obligation of the warehouseman to hold the goods in your favor. It could no longer be defeated by the lien an unpaid seller.
NEGOTIABLE WAREHOUSE RECEIPT NON-NEGOTIABLE WAREHOUSE RECEIPT May be acquired through negotiation May be acquired only through transfer or assignment Rights of the person to whom it is negotiated (holder): 1. Title to the goods of the person negotiating the receipt and title of the person to whose order the goods were to be delivered; 2. Direct obligation of the warehouseman to hold possession of the goods for him as if the warehouseman directly contracted with him. Rights of the transferee: 1. Title of the goods, as against the transferor; - You only step into the shoes. Same with negotiable WR. Difference between negotiable WR and non-negotiable WR is #2 (direct obligation) 2. Right to notify the warehouseman of the transfer; and acquire the direct obligation of the warehouseman to hold the goods for him (only after notification). Negotiation defeats the lien of the seller of the goods.
Goods represented cannot be subject to attachment or levy by execution, unless in proper circumstances. Goods represented can be subject to attachment or levy by execution.
EXAMPLE: S sold the goods to B. B failed to pay S. B subsequently deposited the goods with a warehouseman W. A warehouse receipt was issued to B, which was then transferred to Mr. X. The unpaid seller S now seeks to recover from warehouseman W the goods. Who has a better right, seller S or Mr. X?
It depends on the kind of warehouse receipt. - If negotiable, Mr. X has a better right. - If non-negotiable, it depends on whether the claim made by seller S was made before or after the notification of the transfer. o If claim by the unpaid seller was made before B notified W of the transfer of the goods, S seller has a better right. o If claim by the unpaid seller was made after notification to W, Mr. X has a better right. Special Commercial Laws - Finals EH 403 [2011 2012]
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RULES ON ATTACHMENT/EXECUTION OF GOODS DEPOSITED
A. NEGOTIABLE WAREHOUSE RECEIPT
The goods cannot be attachedor levied in execution UNLESS:
a. The receipt is first surrendered; or - Of course, if it is with you, it cannot be attached. You have to surrender it first. b. Its negotiation is enjoined; or c. The receipt is impounded by the court
Why cant the goods be attached? - To hold otherwise, the right of the indorsee would be defeated because he has already acquired the direct obligation of the warehouseman to hold possession of the goods for him as if the warehouseman directly contracted with him.
Creditors (Unpaid Sellers) Remedies:
a. seek ATTACHMENT of the receipt; or b. compel the debtor to deliver the receipt by INJUNCTION or otherwise
- The unpaid seller could not go directly to the warehouseman and claim possession over the goods. - But he can go to the court and avail of the remedies provided by the law. - As a rule, the right of an indorsee is preferred over that of an unpaid seller or creditor.
Not Applicable (still subject to execution or attachment):
a. If the depositor is not the owner of the goods (thief) or one who has no right to convey title to the goods binding upon the owner; - Thief versus real owner. Real owner has a better right. b. Actions for recovery or manual delivery of goods by the real owner; or - This contemplates of a scenario where the claim is filed by the real owner of the goods, and the person who negotiated the warehouse receipt is not the owner. - Remember that you only acquire the title of the person negotiating the warehouse receipt and if that person negotiating the receipt is a thief, you acquire no right at all. There is no such thing as a holder in due course in warehouse receipts. - In NIL, there is such an animal as a holder in due course. Thus, it is possible for the subsequent holder (if he is a holder in due course) to acquire rights better than that of a transferor. - In a warehouse receipt, you only acquire the title of the person who negotiated the warehouse receipt to you. c. Where attachment is made prior to the issuance of receipt.
ILLUSTRATION:
Thief B stole the goods and deposited them to W. He was issued a warehouse receipt. B negotiated the warehouse receipt to A. Assuming the warehouse receipt is negotiable. In short, A was an indorsee of a warehouse receipt. The real owner this time claims ownership over the goods? Who has better right, the owner or A (indorsee)? - The owner. Even if A was the indorser, his right is only that of the person negotiating he receipt. So his right can be defeated by the real owner. - If non-negotiable and there was prior notification to the warehouseman, the real owner would still have better rights.
This time, if it was not a thief but a buyer (B) who deposited the goods with W. B was issued a warehouse receipt. B subsequently negotiated it to A. S, unpaid seller, is now claiming possession over the goods. Who has a better right, the unpaid seller or indorsee (A)? - A, as indorsee of a negotiable warehouse receipt, has a better right. He acquired title of the person negotiating the receipt. B has title although he has not paid his obligation. He also has the direct obligation of the warehouseman. His right cannot be defeated by an unpaid seller. - If this is a non-negotiable receipt, it depends on whether the claim made by unpaid seller S was made before or after the notification of the transfer. o If claim by the unpaid seller was made before W was notified of the transfer of the goods, S seller has a better right. The right of A can be defeated by the claim of an unpaid seller. o If claim by the unpaid seller was made after notification to W, A, indorsee, has a better right.
B. NON-NEGOTIABLE WAREHOUSE RECEIPT
The goods can be attached, provided it is done prior to the notification of the warehouseman of the transfer. Special Commercial Laws - Finals EH 403 [2011 2012]
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- Reason: Absent such notice, both the warehouseman and the sheriff have a right to assume that the goods are still owned by the person whose name appears in the receipt.
RIGHTS AND OBLIGATIONS OF THE WAREHOUSEMAN
Rights:
1. To be paid; 2. In case of non-payment, to exercise his lien on the goods deposited; and 3. To refuse delivery in proper legal circumstances.
Obligations:
1. To issue a warehouse receipt in the required form for goods received; 2. To take care of the goods deposited with ordinary and reasonable diligence; 3. To deliver the goods to the person lawfully entitled; 4. Not to commingle the goods deposited, unless the goods are fungible and of the same kind and grade, giving rise to co-ownership over commingled mass; - If not fungible, he is not supposed to commingle. - He may commingle fungible goods if there is an agreement, or if it is customary. - If commingled, then there is now co-ownership. 5. To insure the goods in proper circumstances; 6. To mark a non-negotiable warehouse receipt as such; 7. To mark as such the duplicates of a negotiable warehouse receipts 8. To give the proper notice in case of sale of the goods as provided in the warehouse receipts law; and 9. To take up and cancel the warehouse receipt when the goods are delivered.
Duty to Deliver:
Upon a DEMAND made by the holder of a receipt or by the depositor, unless there is a legal excuse; if such demand is accompanied with: (Section 8) 1. Offer to satisfy the warehousemans lien; and 2. Offer to surrender the receipt, if negotiable, with such indorsement as would be necessary for the negotiation of the receipt; and - It is important for the warehouseman to get back the warehouse receipt because he needs to cancel it. Otherwise, if he did not take it back and cancel it, and it is subsequently negotiated to a purchaser for value and in good faith, he would incur liabilities. 3. Readiness and willingness to sign an acknowledgement when the goods are delivered, if such signature is requested by the warehouseman.
If these 3 conditions are not complied with, then the warehouseman is justified in refusing to deliver the goods.
GENERAL RULE: a demand should be made on the warehouseman in order that the duty to deliver the goods will arise. EXCEPTION: when the warehouseman has rendered it beyond his power to deliver the goods, demand may be dispensed with.
Person to whom goods must be delivered:
1. Person lawfully entitled to possession of goods or his agent (person to whom a competent court has ordered delivery of goods; attaching creditor; purchaser); - Person ordered by a competent court. Example. Adverse claim. If there are adverse claims, if you are the warehouseman, you should ask the adverse claimants to interplead and whoever the court orders as the lawful owner, then you must make delivery to him. - In case of loss or destroyed warehouse receipt, there is a procedure, and the court would issue an order as to who is entitled to the goods. - Attaching creditor - Purchaser 2. Person entitled to delivery under a non-negotiable receipt or with written authority; or 3. Person in possession of a negotiable receipt.
Instances when a warehouseman may legally refuse to deliver goods:
1. When the holder of the receipt does not satisfy the conditions prescribed in Section 8 - 3 conditions under section 8 2. When the warehouseman has legal title in himself on the goods, such title or right being derived directly or indirectly from the transfer made by the depositor at the time or subsequent to the deposit for storage or from the warehousemans lien; 3. If the warehouseman had been requested by a person lawfully entitled to a right of property or possession in the goods not to make delivery to any person; Special Commercial Laws - Finals EH 403 [2011 2012]
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4. If he had information that the delivery to be made was one not lawfully entitled to the possession of the goods; 5. Where the goods have already been lawfully sold to 3 rd persons to satisfy the warehousemans lien or disposed of because of their perishable or hazardous nature; 6. In case of adverse claimants; - You would ask the adverse claimants to interplead 7. In the valid exercise of the warehousemans lien; 8. Delivery to a claimant with a better right; 9. Attachment or levy of the goods by a creditor where the document is surrendered or its negotiation is enjoined or the document is impounded; 10. Where the document of title is attached by a creditor; 11. Failure was not due to any fault on the part of the warehouseman
Instances when a warehouseman is liable for conversion:
Conversion is an unauthorized assumption and exercise of the right of ownership over goods belonging to another through the alteration of their condition or the exclusion of the owners rights. So in short, there is misdelivery of goods you deliver goods to persons not lawfully entitled.
1. Where the delivery is otherwise than as authorized by subsections (b) and (c) of Section 9. - You should deliver to the persons to whom goods must be delivered. 3 persons mentioned above.
2. Even if delivered to persons entitled under Section 9, he may still be liable for conversion if prior to delivery: a. He had been requested not to make such delivery; or b. He had received notice of the adverse claim or title of a third person.
Example: I am in possession of a negotiable warehouse receipt deliverable to bearer. I went to the warehouseman and demanded for the delivery of the goods. Somebody else notified the warehouseman not to make delivery to me because he claims ownership over the goods. So if you are the warehouseman, you are not supposed to make delivery. Here, you would not be liable even if the receipt is deliverable to bearer because you are JUSTIFIED in refusing to make delivery until you are given reasonable time to ascertain the validity of the adverse claim, or to initiate legal proceedings to compel the claimants to interplead.
Effects of Alteration:
ALTERATION EFFECT Immaterial Whether fraudulent or not, authorized or not, warehouseman is liable on the altered receipt according to its ORIGINAL TENOR. Material but authorized Liable according to its terms as ALTERED. Material alteration innocently made Liable according to its ORIGINAL TENOR. Material alteration fraudulently made Liable according to the ORIGINAL TENOR to a purchaser of receipt for value without notice and even to the alterer, and subsequent purchasers with notice (except that liability with respect to the alterer and subsequent purchasers with notice is limited only to delivery as he is excused from any liability).
Material and fraudulent: the quantity of the goods, the name of the person.
Lost or destroyed warehouse receipts:
Where a negotiable receipt has been lost or destroyed, a court of competent jurisdiction may order the delivery of the goods only: 1. Upon proof of the lossor destruction of the receipt; and 2. Upon the giving of a bond with sufficient sureties to be approved by the court.
What if Mr. A claims that the warehouse receipt issued to him is lost, but it was not actually lost but was only negotiated to Mr. B, a purchaser for value and in good faith. What is the liability of the warehouseman to Mr. B? - Warehouseman is not relieved of his liability to Mr. B because Warehouseman can always go after the bond. - As far as his obligation to Mr. B is concerned, he is not relieved from liability. If he refuses to deliver, or he could no longer deliver because the goods were already released to Mr. A upon his filing with the court, the warehouseman would still be liable to Mr. B. But then again, warehouseman could always go after the bond. The bond would answer for whatever liability the warehouseman would incur to a purchaser for value and without notice.
Extent of the Warehousemans lien:
1. All lawful charges for storage and preservation of the goods; 2. All lawful claims for money advanced; and Special Commercial Laws - Finals EH 403 [2011 2012]
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3. All reasonable charges and expenses for notice and advertisement of the sale, and the sale of the goods
Enforcement of Warehousemans lien:
1. By refusing to deliver the goods until his lien is satisfied; or 2. By causing extrajudicial sale of the property and applying the proceeds to the value of the lien; 3. By the other means allowed by law to a creditor against his debtor; OR such other remedies allowed by law for the enforcement of a lien against personal property.
Loss of Lien:
1. By surrendering possession thereof; or 2. By refusing to deliver the goods when a demand is made with which he is bound to comply.
What warehouseman can do in case of adverse claimants:
1. REFUSE to deliver the goods to anyone of them until he has had reasonable time to ascertain the validity of the various claims; he is not excused from liability in case he makes a mistake. 2. Original action or counterclaim for INTERPLEADER, whichever is appropriate. In such case, the warehouseman will be relieved from liability in delivering the goods to the person found by the court to have a better right.
NEGOTIABLE INSTRUMENT NEGOTIABLE WAREHOUSE RECEIPT SUBJECT Money Merchandise OBJECT OF VALUE Instrument itself Goods deposited LIABILITY OF INTERMEDIATE PARTIES Secondary None (for failure to deliver the goods) EFFECT OF DELIBERATE ACTION Null and void Valid, but enforceable only in accordance with its original tenor CONVERSION FROM BEARER TO ORDER If a negotiable instrument is originally payable to bearer, it will always remain so payable regardless of the way it is indorsed, whether specially or in blank. If a negotiable warehouse receipt deliverable to bearer is indorsed specially, it will be converted into a receipt deliverable to order and can only be negotiated further by indorsement and delivery. SIGNIFICANCE OF HOLDER IN DUE COURSE A holder in due course may be able to obtain a title better than that which the party who negotiated the instrument to him had. The indorsee, even if holder in due course, obtains only such title as the person negotiating had over the goods.