§4615 — Title 12 Banks and Banking | U.S. Code

Summary

The Director must watch any undercapitalized regulated entity closely. The Director must check that the entity files a capital restoration plan under section 4622 (within the time in 4622(b) and (d)), follows the approved plan, and reviews the plan and limits to see if they are working. An undercapitalized entity cannot pay out capital if that would make it more undercapitalized. It cannot let its average assets grow from one quarter to the next unless the Director has accepted the plan, the growth fits the plan, and the entity’s tangible-equity-to-assets ratio is rising fast enough to become adequately capitalized in a reasonable time. The entity also may not buy a new business or start a new activity unless the Director accepts the plan and says the action fits the plan, or the Director finds the action will help the subchapter’s purpose. If the entity misses the deadline for a proper plan, or the Director does not approve the plan, or the entity fails in a material way to follow an approved plan, the Director must reclassify it as significantly undercapitalized and apply section 4616. The Director may also use any powers in section 4616 while the entity is undercapitalized if needed to carry out the subchapter’s purpose.

Title 12, §4615

Banks and Banking — Source: USLM XML via OLRC

(a)(1)The Director shall—

(A)closely monitor the condition of any undercapitalized regulated entity;

(B)closely monitor compliance with the capital restoration plan, restrictions, and requirements imposed on an undercapitalized regulated entity under this section; and

(C)periodically review the plan, restrictions, and requirements applicable to an undercapitalized regulated entity to determine whether the plan, restrictions, and requirements are achieving the purpose of this section.

(2)A regulated entity that is classified as undercapitalized shall, within the time period provided in section 4622(b) and (d) of this title, submit to the Director a capital restoration plan that complies with section 4622 of this title and carry out the plan after approval.

(3)A regulated entity that is classified as undercapitalized may not make any capital distribution that would result in the regulated entity being reclassified as significantly undercapitalized or critically undercapitalized.

(4)An undercapitalized regulated entity shall not permit its average total assets during any calendar quarter to exceed its average total assets during the preceding calendar quarter, unless—

(A)the Director has accepted the capital restoration plan of the regulated entity;

(B)any increase in total assets is consistent with the capital restoration plan; and

(C)the ratio of tangible equity to assets of the regulated entity increases during the calendar quarter at a rate sufficient to enable the regulated entity to become adequately capitalized within a reasonable time.

(5)An undercapitalized regulated entity shall not, directly or indirectly, acquire any interest in any entity or engage in any new activity, unless—

(A)the Director has accepted the capital restoration plan of the regulated entity, the regulated entity is implementing the plan, and the Director determines that the proposed action is consistent with and will further the achievement of the plan; or

(B)the Director determines that the proposed action will further the purpose of this subchapter.

(b)The Director shall reclassify as significantly undercapitalized a regulated entity that is classified as undercapitalized (and the regulated entity shall be subject to the provisions of section 4616 of this title) if—

(1)the regulated entity does not submit a capital restoration plan that is substantially in compliance with section 4622 of this title within the applicable period or the Director does not approve the capital restoration plan submitted by the regulated entity; or

(2)the Director determines that the regulated entity has failed to comply with the capital restoration plan and fulfill the schedule for the plan approved by the Director in any material respect.

(c)The Director may take, with respect to an undercapitalized regulated entity, any of the actions authorized to be taken under section 4616 of this title with respect to a significantly undercapitalized regulated entity, if the Director determines that such actions are necessary to carry out the purpose of this subchapter.

Notes & Related Subsidiaries

Editorial Notes

Amendments

2008—Subsec. (a)(1). Pub. L. 110–289, § 1143(4)(B), added par. (1). Former par. (1) redesignated (2). Pub. L. 110–289, § 1143(2), substituted “A regulated entity” for “An enterprise”. Subsec. (a)(2). Pub. L. 110–289, § 1143(4)(A), redesignated par. (1) as (2). Former par. (2) redesignated (3). Pub. L. 110–289, § 1143(1), (2), substituted “the regulated entity” for “the enterprise” and “A regulated entity” for “An enterprise”. Subsec. (a)(3). Pub. L. 110–289, § 1143(4)(A), redesignated par. (2) as (3). Subsec. (a)(4), (5). Pub. L. 110–289, § 1143(4)(C), added pars. (4) and (5). Subsec. (b). Pub. L. 110–289, § 1143(5)(A), (B), substituted “Reclassification” for “Discretionary reclassification” in heading and “shall” for “may” in introductory provisions. Pub. L. 110–289, § 1143(1), (3), substituted “a regulated entity” for “an enterprise” and “the regulated entity” for “the enterprise” in introductory provisions. Subsec. (b)(1). Pub. L. 110–289, § 1143(1), substituted “the regulated entity” for “the enterprise” in two places. Subsec. (b)(2). Pub. L. 110–289, § 1143(5)(C), struck out “make, in good faith, reasonable efforts necessary to” before “comply with” and inserted “in any material respect” before period at end. Pub. L. 110–289, § 1143(1), substituted “the regulated entity” for “the enterprise”. Subsec. (c). Pub. L. 110–289, § 1143(6), added subsec. (c) and struck out former subsec. (c). Prior to amendment, text read as follows: “This section shall take effect upon the expiration of the 1-year period beginning on the date of the effectiveness of the

Regulations

issued under section 4611(e) of this title establishing the risk-based capital test.”

§4615 Supervisory Actions Applicable to Undercapitalized Regulated Entities