Chapters:
02-08 (Reserved)
10 Banks
12-13 (Reserved)
16 Escheat of unclaimed Bank deposits
Sections:
28.0101 Purpose of Bank.
28.0102 Charter of Bank-Powers.
28.0103 Board-President.
28.0104 Audit.
28.0105 Capital investment-Loan guarantees.
28.0106 Existence for public
benefit-Tax exempt status-Government not liable for Bank’s obligation.
28.0107 Annual
report required.
28.0108 Assets and liabilities existing upon enactment of this chapter.
28.0109 Loans to aliens.
28.0110 Malfeasance of Director.
28.0111 Larceny and fraud-Penalty.
28.0101 Purpose
of Bank.
In
order to provide the people of American Samoa with lending and investment
facilities and assist in the promotion of private enterprise and meet the needs
of developing economy, the corporate body known as the “Development Bank of
American Samoa”, hereinafter referred to as “the Bank”, is empowered under the
charter of the Bank to carry out its purposes.
History: 1972, PL 12-67 § 1.
28.0102 Charter of
Bank-Powers.
The
charter of the Bank is as follows in this section and 28.0103 through 28.0105:
(a) The existence of the Bank shall be perpetual.
(b) The principal office of the Bank shall be
located at
(c) Subject to any existing limitation or
limitations hereinafter enacted, the Bank, through its officers and agents, is
authorized to engage in all banking functions, other than to receive deposits
of money that will assist in the economic advancement of
(d) In performing the functions authorized in
subsection (c), the Bank shall have and exercise all lawful powers normally
exercised by banking corporations, including the following:
(1) to adopt, alter and use a corporate seal:
(2) to adopt and amend bylaws governing the
conduct of its business and the exercise of its powers;
(3) to sue and be sued in its corporate name;
(4) to acquire in any lawful manner, real,
personal, or mixed property, either tangible or intangible, to hold, maintain,
use, and operate such property, and to sell, lease, or otherwise dispose of
such property.
(e) The Board may, by majority vote of its entire
membership, adopt, amend, or repeal bylaws of the Bank providing for the
management of the business of the Bank, the organization, meetings, and
procedures of the Board, the duties of the officers of the Bank, the officers
required to furnish bonds and the amounts thereof, the form of the seal of the
Bank, and the preparation and submission of required reports. Bylaws may not be
adopted, amended or repealed except after 1 week’s written notice to each
Director.
History: 1972, PL
12-67 § 2, 3.
28.0103 Board-President.
(a) The affairs of the Bank must be managed and
its corporate powers exercised by a Board of Directors, hereinafter referred to
as “the Board”,
which consists of 10 members, 9 of whom are to be appointed by the Governor
with the advice and consent of the Senate. The Chairman, who is a Board member,
is elected by a majority of the Board. In the event of a vacancy for any reason
whatsoever, the Governor may appoint a person to fill the vacancy until the
next session of the Legislature. All Directors serve two year terms. All
appointees may be reappointed to the board and may be removed by the Governor
for cause, provided the majority of the Board concurs in the cause or causes
offered. At least 4 of the Board members are representatives of private
business or financial interests in
(b) The Governor, with the approval of the Board,
appoints a President of the Bank, with the advice and consent of the Senate.
The President is responsible for the operation of the Bank with the assistance
of such other officers and employees as the Board may authorize. The salary of
the President and other officers is established by the Board.
History: 1972, PL
12-67 § 2, 3; 1973, PL 13-28 § 1; amd 1985, PL 19-3 § 1.
Amendments: 1973 Provided for
approval by senate and omitted provisions relating to original appointments in
subsection (a,).
1985 Increased board membership from 9 to 10;
made general amendments to overall language of the section.
28.0104 Audit.
The
books and records of the Bank shall be thoroughly examined and audited
annually, following the end of the Bank’s fiscal year, to show the statement of
condition as of that fiscal year end and operations of the Bank for the
12-month period, by qualified independent certified public accountants,
preferably of recognized international standing, appointed by the Board. The
government shall have the right ‘through qualified personnel in the Department
of Administrative Services, or its auditing offices, to examine the affairs of
the Bank at reasonable intervals, to insure that the Bank is operating its
affairs on a sound businesslike basis.
History: 1972, PL 12-67 § 2, 3.
28.0105 Capital investment-Loan guarantees.
(a) The
capital of the Bank, together with all funds and credits that it may obtain
from any loans, credits, grants, or other advances from the United States
Government, or any related instrumentality empowered to make funds available
to the Bank or any international finance institution or from private financial
institutions that may provide loans or credits to the Bank, shall be available
for investment by the Bank whether in the form of loans or stock in enterprises
controlled by private individuals, partnerships, or corporations engaged in
business or industry of whatever nature, that are deemed to conform to the
objectives of furthering the economy of American Samoa except as may be limited
by subsection (b). The loans or stock investments and all temporary short term
investments must be made on the terms and conditions that the management of
the Bank may determine and shall be approved by the Board of Directors and must
be based on prudent and sound business judgment, as to the capacity of the
prospective borrowers to repay, and all stock investments made where, in the
judgment of the board, the prospects of successful operation of the business or
industry seem warranted. The loans or credits authorized by this section may be
only to qualified borrowers who are American Samoans or permanent residents of
(b) The Bank may guarantee loans or equipment
leases by qualified lenders or equipment leasing firms, and it may guarantee
construction performance bonds by bonding companies to entities fully or
majority owned or controlled by American Samoans who although having reasonable
assurance of repayment, do not qualify for loans, leases, or performance bonds
under the requirements imposed by the original lender, lessor or bonding
agency. The guarantees by the Bank may not exceed in the aggregate at any one
time a total of 4 times the capital and surplus (excluding undivided profits)
of the Bank; nor may the aggregate of Bank loans to and guarantees for any
person or entity, or group of persons or entities with a common ownership,
business, or financial interest, exceed 10% of the Bank’s capital and surplus
unless the loan or the performance of a contract is secured directly or under
right of assumption of collateral property, tangible or intangible, carrying a
written and expert appraisal of at least 35 percent in excess of the amount
guaranteed. All guarantees shall be approved by the Bank’s Board of Directors.
In making guarantees and thus assuming contingent liability, the Bank shall,
consistent with conservative Banking principles, keep at all times a portion of
its capital funds invested in securities of the Treasury or other agencies of
the United States.
(c) Commercial, or non-residential, guarantees
under this section shall not exceed 90 percent of the loan amount or the total
encumbrance granted to secure such loan and guarantee, whichever is less.
(d) Guarantees of home loans under this section
may, in the discretion of the Bank Board of Directors, exceed 90% of the loan
amount, provided that such loan and guarantee is fully secured and
collateralized by the home to be constructed or improved.
History: 1972, PL
12-67 § 2, 3; amd 1973, PL 13-28 § 1, 2; 1978, PL 15-78; 1980, PL 16-81 § 1;
amd 1987, PL 20-21 § 1.
Amendments: 1973
Subsection (a): amended generally.
Subsection (b): deleted provisions relating to investment of capital
funds by Bank.
1978 Subsection (b): amended generally.
1980 Subsection (b): added “of the total encumbrance granted” to next to
last sentence.
1987 Replaced “Loans” with “Loan guarantees” in section title. Subsection (b): replaced language concerning loan guarantees with clarifying language and required approval of all guarantees. Subsections (c) and (d): added.
Case Notes:
Common stock issued by government corporation to
a Bank in exchange for retirement of debt was not improper and was within
authority of corporation’s board of directors. Fa’atiliga v. Lutali, 3 A.S.R.2d
139 (1986).
28.0106 Existence for public
benefit-Tax exempt status-Government not liable for Bank’s obligation.
The
Bank exists and operates solely for the benefit of the public and is exempt
from any taxes or assessments on any of its property, operations, or
activities. The debts and obligations of the Bank are not debts or obligations
of the government, the government may not be responsible for any such debts or
obligations.
History: 1962, PL
7-11; 1969, PL 11-40.
28.0107 Annual report
required.
(a) The Development Bank of
(1) the name and address of the Bank;
(2) a profit and loss statement of the last fiscal
year and a statement of its assets and liabilities as of the close of the
year; and
(3) the names and addresses of all Directors and
officers of the Bank.
(b) The report must be made available to the
public by publication or otherwise.
History: 1971, PL
12-6 § 1.
28.0108 Assets and
liabilities existing upon enactment of this chapter.
All
assets and liabilities of the Bank existing at the time of the enactment of
this chapter inure to the benefit of and are binding upon the Bank created by
this chapter.
History: 1962, PL 7-11.
28.0109 Loans
to aliens.
A loan
shall be made only if the manager of the Bank believes that there are
reasonable prospects for its repayment. Prior to making a loan to an alien who
entered
History: 1968, PL 10-37.
28.0110 Malfeasance of
director.
(a) Any director who, under color of his office,
violates any law or knowingly or negligently permits any officer, agent, or
employee of the Bank to violate any law, or any provision of the Bank’s charter
or bylaws, shall be subject to removal from the board.
(b) Any American Samoan who has reasonable
grounds to believe that a director is subject to removal under this section may
petition the High Court of American Samoa for removal of the director. If the
court finds that the respondent director is subject to removal under this section,
the court shall order his removal and provide for such other relief as the
court deems just and appropriate.
History: 1962, PL 7-11; 1969,
PL 11-40.
28.0111 Larceny and
fraud-Penalty.
Any
director, officer, employee, or agent of the Bank who, with the intent to
injure or defraud the Bank or any other person, embezzles, steals, or
misapplies any moneys, funds, credits, or securities; makes any false entry in
a book, report, or record; or performs any other fraudulent act; and any person
who, with like intent, aids or abets any director, officer, employee or agent
in any of the acts described in this section shall be fined not more than
$3,000, or imprisoned for not more than 5 years, or both.
History: 1969, PL
11-40.
Chapters 02-08
(RESERVED)
Chapter 09
Section
28.0901 Authorization for
implementation of U.S. Public Law No. 106-113.
28.0901 Authorization for implementation of
(a)
The Governor, or his designee, is authorized to
enter into such agreements, contracts and arrangements with the Secretary of
the United States Department of the Interior (and any other officials of the
United States Government as may be necessary), and to take all such other legal
ministerial actions as may be required to implement Section 125 of “the Act
making appropriations for the Department of Interior and related agencies for
the fiscal year ending September 30, 2000 and for other purposes (H.R. 2466; PL
No. 106-113)”, hereinafter referred to as “the Act.”
(b)
The Governor is specifically authorized to enter
into a loan agreement with the Secretary of Interior in accordance with the
terms and conditions of Section 125 of the Act, the repayment of such loan
principal and the interest thereon to b derived from an irrevocable assignment
of funds as they become due and payable (annually or otherwise) to the American
Samoa Government from the Escrow Account established under the terms and conditions
of the Tobacco Master Settlement Agreement (and the subsequent Enforcing
Consent Decree, hereinafter collectively referred to as “the Agreement”)
entered into on November 23, 1998, and the judgment granted by the High Court
of American Samoa on January 5, 1999 in Civil Action No. 119-98.
(c)
The Governor is further authorized to pledge the
full faith and credit of the American Samoa Government as additional security
for the loan as required by Section 125(b)(1) of the Act.
(d)
The Governor, or his designee, shall provide
regular monthly reports to the Legislature on the progress of debt payments
undertaken, regular quarterly reports to the Legislature on fiscal and
managerial reform programs instituted in relation to Section 125(d) of the Act
and regular annual reports to the Legislature on the status of repayment of the
loan.
History: 2000, PL
26-25.
Chapter 10
Sections:
28.1001 Short title.
28.1002 Regulations of Banks.
28.1003 Suspension of operations.
28.1004 Power
of Governor to adopt rules.
28.1005 Title to or interest in communal land prohibited-Exception.
28.1001 Short title.
This chapter shall be known
and may be cited as the “American Samoa Banking Act of 1975”.
History: 1975, PL l4-16 § 1.
28.1002 Regulations of
Banks.
A Bank may not do business in
(1) it
is a corporation organized under the Banking laws of the United States or the
Banking laws of a state of the United States or the general corporation laws of
American Samoa, 30.0101 et seq., for the exclusive purpose of engaging in the
general Banking business; and
(2) it is a member of the Federal Deposit
Insurance Corporation (FDIC); and
(3) it has been approved by the Comptroller of the
currency and FDIC if a national Bank; and
(4) it has obtained the approval of the proper
official of the state, if a state Bank; and
(5) it shall have been authorized and licensed to
conduct the business of Banking in American Samoa by the Economic Development
Commission and Governor of American Samoa; and
(6) if a state Bank, the charter, statutes, rules,
and regulations under which it operates have been examined and found adequate
by the Economic Development Commission and the Governor of American Samoa.
History: 1975, PL 14-16 § 1.
28.1003 Suspension
of operations.
(a) In the event a Bank has had an application for
FDIC insurance accepted for filing, but not yet approved, the Governor may
suspend the operation of subsection (2) of 28.1002 for a period not exceeding
one year upon conditions he may determine. The conditions imposed may include,
but shall not be limited to, the following general areas of concern:
(1) public notice;
(2) accounting and record keeping;
(3) insurance;
(4) management and operations expertise;
(5) Board of Directors membership;
(6) loan policy and limits;
(7) dividend policy; and
(8) investment policy;
and shall be set forth in a public
document to be known as “Certificate of Temporary Suspension of Requirement to
obtain FDIC Insurance”.
(b) In the event FDIC insurance has not been
obtained within one year from the date the above certificate is granted and the
application for insurance is still pending, the Governor may grant up to 8,
90-day, extensions within which to comply.
(c) In the event the Bank does not obtain FDIC
insurance within the one-year period and any extensions if granted, or if the
Bank fails to comply with any of the conditions of the certificate, the
Governor may immediately suspend the operation of that Bank, freeze its assets,
and liquidate its business in accordance with Banking rules and regulations and
generally accepted Banking principles.
History: 1979, PL 16-30 § 1;
amd 1981, PL 17-13 § 1.
28.1004 Power of Governor
to adopt rules.
(a) The Governor has the power to adopt rules
under the Administrative Procedure Act, 4.1001 et seq., and from time to time
amend, supplement, and revoke, in whole or in part, rules not inconsistent with
this act or the laws of this Territory or the laws of the
(b) The Governor shall adopt the rules under
subsection (a) by
History: 1975, PL 14-16 § 1;
amd 1978, PL 15-76 § 1.
Amendments: 1978
Designated existing section as subsection (a) and added subsection (b).
28.1005 Title to or
interest in communal land prohibited-Exception.
(a) No bank, or corporation engaged in banking,
may acquire or hold title to any land, except that a bank authorized to do
business in American Samoa may acquire and hold title to land in trust for
beneficial owners who are eligible under the laws of American Samoa to acquire
and hold title to land, and may acquire and hold a leasehold interest in land,
subject to the general restrictions and limitations on the alienation of land
contained in the laws of American Samoa.
(b) This section does not apply to “Freehold
lands”, as defined in 37.0201.
History: 1969, PL 11-42; 1975, PL 14-16 § 2; readopted
1980, PL 16-88 § 1, 2; 1982, PL 17-31 § 1, 2.
Reviser’s Comment. The law dealing with alienation of land contained
in the A.S.C.A., as recodifled by the legislative reference bureau had been
questioned as to whether the requirements of Art. 1,§ 3 and Art II, § 9.
American Samoa Constitution, had been fulfilled. Since the records were not
available to answer the question, the Legislature passed PL 16-48 and PL 17-31
to ensure that the law dealing with alienation of land complies with the
Constitution.
Sections:
28.1101 Short title.
28.1102 Regulations
of business.
28.1103 Power of Governor to
adopt rules.
28.1101 Short title.
This chapter may be known and
cited as the “American Samoa Savings and Loan Act of 1978”.
History: 1978, PL 15-70.
28.1102 Regulations of
business.
A
savings and loan institution may not do business in
(1) it is a corporation organized under the
savings and loan laws of the United States (12 U.S.C. § 1461 et seq.), or under
the savings and loan laws of a state or territory of the United States, or the
general corporation laws of American Samoa (30.0101 et seq.) for the exclusive
purpose of engaging in the general business of savings and loan Banking
business;
(2) it is a member of the Federal Savings and
Loan Insurance Corporation;
(3) it has been approved by the Federal Home Loan
Bank Board, if a federal savings and loan association;
(4) it has obtained the approval of the proper
official of the state, or territories if a state or territorial savings and
loan;
(5) it
shall have been authorized and licensed to conduct the business of savings and
loan Banking in American Samoa by the Territorial Planning Commission and
Governor of American Samoa;
(6) if a state or Territory savings and loan, the
charter, statutes, and rules under which it operates have been examined and
found adequate by the Territorial Planning Commission and the Governor of
American Samoa; and
(7) it reserves 50 percent of its deposits
generated from within the Territory to mortgage loans to be loaned here in the
Territory. This subsection specifically applies to all institutions regulated
by this chapter, whether in place in the Territory when this act is effective
or hereafter admitted.
History: 1978, PL 15-70.
28.1103 Power of Governor
to adopt rules.
The
Governor has the power to adopt rules under the Administrative Procedure Act,
4.1001 et seq., and from time to time amend, supplement, and revoke, in whole
or in part, rules not inconsistent with this chapter or the laws of this
Territory or the laws of the United States of America governing the business of
savings and loan banking in American Samoa.
History: 1978, PL 15-70.
Chapters 12-13
(RESERVED)
Chapter 14
A.S.G.
CREDIT FACILITY AGREEMENTS
Sections:
28.1401 Authorization of Credit
Facility-Source of Repayment-Reports.
28.1410 Authorization of Loan-American Samoa Medical
Center-Reports-Source of funding.
28.1401 Authorization of Credit Facility-Source of Repayment-Reports.
(a)
The Treasurer, on behalf of the government, is
authorized to enter into a credit facility with the Bank of Hawaii in an amount
not to exceed $5,000,000 to satisfy appropriated obligations of the
government. The Treasurer is authorized
to negotiate the terms of the credit, including a variable interest rate,
repayment terms and such other terms and conditions as may be required to
obtain the credit facility, so long as said terms are standard in the lending
industry and consistent with standard banking practices and established
principles of government borrowing. The
Treasurer is further authorized to execute all instruments and documents
necessary to conclude the transaction, including promissory notes which
evidence indebtedness of the government.
Said instruments and documents shall be subject to review and approval
by the Attorney General for legal sufficiency prior to execution by the
Treasurer.
(b)
The principal, plus accrued interest thereon,
owing on the credit facility and any charges and fees associated with the
facility shall be paid with revenues from the general fund.
(c)
Within 30 days of the end of each fiscal year,
the Treasurer shall provide a report to the Governor and the Legislature
detailing the status of the credit facility and all transactions related
thereto which occurred during the prior fiscal year.
History: 2001, PL
27-2.
28.1410 Authorization of Loan-American Samoa Medical Center-Reports-Source
of funding.
(a)
American Samoa Medical Center (ASMC), on
behalf of ASMC, are authorized to enter into a credit facility whereby the
government will lend and ASMC will borrow an amount not t exceed $5,000,000.00
for the purpose of providing immediate financial assistance to ASMC. The Governor, or his designee, and the Board
of Directors, or its designee, are authorized to negotiate the terms of the
credit, including and interest rate, repayment terms and such other terms and
conditions as may be required to obtain the credit facility. The Governor and the Board are further
authorized to execute all instruments and documents necessary to conclude the
transactions, including promissory notes which evidence indebtedness of the
ASMC.
(b)
Proceeds of the loan
shall be expended to satisfy, or partially satisfy to the extent f the
proceeds, current indebtedness of the ASMC in the following priorities:
(i)
U.S. FICA and Medicare
taxes;
(ii)
Employee and employer
contributions owing t the American Samoa Employees’ Retirement Fund;
(iii)
Utility payables;
(iv)
Pharmaceutical company
payables;
(v)
Other vendor payables
incurred for essential operational services; and
(vi)
ASG withholding taxes.
(c) A.S.C.A.,
Section 13.0109 notwithstanding, the loan shall be repaid to the government
from revenues appropriated by the Legislature for ASMC on such terms as
negotiated.
(d)
As a condition of the loan, ASMC shall enter
into a fiscal and operations reform plan with the government, acceptable to the
Governor, whereby ASMC will implement procedures to increase its revenues,
reduce its expenditures, achieve a balanced budget and improve operations of
(e)
Within 30 days f the end of each fiscal
quarter, the Treasurer shall provide a report to the Governor and the
Legislature detailing the status of the credit facility and all transactions
related thereto which occurred during the prior fiscal quarter.
History: 2003, PL 28-10.
Chapter 15
LOANS
Sections:
28.1501 Interest rate-Agreements
signed and written-Charge for loans.
28.1502 Small loans-Interest.
28.1503
Business loans.
28.1505
Open-end credit.
28.1510
Penalty for usury.
28.1501 Interest
rate-Agreements signed and written-Charge for loans.
(a) Except as provided in this title, no person
may charge more than 15 percent per year as interest on a debt or obligation,
and no agreement to pay a rate of interest higher than 6 percent per year
shall be enforceable unless the same is in writing and is signed by the party
to be charged. The rate of interest when there is no written agreement with
respect thereto shall be 6 percent per year, and such interest shall be
presumed on overdue debts.
(b) Lending institutions are empowered to set,
from time to time as the cost of money and the cost of lending operations
warrant, a minimum charge for their loans where the normal interest is not
equal to the average cost of making a loan. In no event may both a minimum
charge and interest be collected.
(c) Banks that are authorized and licensed to
conduct the business of banking in American Samoa are empowered to charge,
contract for, and receive interest on loans at a rate up to 24% per year,
provided that:
(1) The principal amount of the loan is $5,000.00
or less, and
(2) The principal amount of the loan and interest
rate are disclosed in written agreement that is signed by the parties to be
charged.
History: 1962, PL 7-23; 1963, PL 8-13; 1975. PL 14-16 §
3; 1978, PL 15-76 § 2; amd 1980, PL 16-67 § 1; 1980, PL 16-75 § 1, amd 2004, PL
28-24.
Case Notes:
Territorial statute providing that no debtor can be charged interest in excess of 6% unless the amount "is in writing and is signed by the party to be charged" precluded court from holding debtor liable to pay interest at a higher rate in the absence of a signed agreement, even when debtor knew Bank would charge creditor a higher rate of interest on amounts not timely paid by debtor. A.S.C.A. § 28.1501(a). Meridian Breckwoldt Samoa, Ltd., v. Max Haleck, Inc., 7 A.S.R.2d 95 (1988).
Since in the absence of a written agreement specifying the rate of interest applicable to a promissory note the statutory rate of 6% will apply, where a note specified an interest rate of 12.5% "until maturity" the rate after maturity was 6%. A.S.C.A. § 28.1501. Pritchard v. Amerika Samoa Bank, 8 A.S.R.2d 157 (1988).
In assessing post-judgment interest, the court set the rate at six per cent, the maximum enforceable rate on unwritten contracts. A.S.C.A. § 28.1501(a). Samoa Products, Inc. v. A`asa, 17 A.S.R.2d 66 (1990).
The statutory rate of six percent interest is presumed on overdue debts for which no contractual interest rate is specified. A.S.C.A. § 28.1501(a). Ghiselli Bros., Inc. v. Ryan, Inc., 22 A.S.R.2d 57 (1992).
Amendments: 1978 Subsection (a): raised interest rates. Subsection (b): deleted “normal” from before “interest be collected” at end of subsection.
1980 Subsection (a): raised interest rates.
Subsection (b): amended generally;
and added last sentence.
28.1502 Small
loans-Interest.
Any bank, savings and loan association, person, firm, corporation or
government entity which has been approved by the Governor as a small loan
agency may charge a fee of not more than $8 per $100 per year on loans, debts
and obligations of not more than $8,000 with an allowable minimum charge to be
fixed in an amount not to exceed a current schedule set by any lending
institution under the standards prescribed in subsection (b) of 28.1501. Fees
charged under this section are not to be levied in addition to the interest or
minimum charge allowed under 28.1501. If any loan under this section is paid
before its due date, the lender shall credit to the unpaid balance, or shall
refund, unearned interest.
History: 1972, PL
12-51 § 1;amd 1978, PL 15-76 § 3; amd 1980, PL 16-67 § 2.
Amendments: 1978
Added “(b)” to reference to section in Amendments: 1980 Amended to conform with
penalties pro-first sentence.
1980 Deleted reference to Bank of Hawaii; raised rates
of fees vided for in Title 46, Criminal Justice and amount of loans.
28.1503 Business loans.
It is
lawful to charge, contract for, and receive any rate or amount of interest or
other compensation, not to exceed 18 percent annually, with respect to any
loan to any business or commercial organization or to a person or persons
owning or desiring to acquire a business as a sole proprietor or joint venture,
if the loan is transacted solely for the purpose of carrying on or acquiring a
business or commercial investment. Business or commercial organization includes
corporations, copartnerships, joint venture, limited partnerships, trusts, and
any other bona fide business entity.
History: 1973, PL 13-22; 1975, PL 14-16 § 3; amd 1980, PL 16-67 § 3.
Amendments: 1980 Raised interest rates.
Case Notes:
Section not applicable to 90-day time or usage draft used in
arrangement between an importer and a foreign corporation to buy goods on
credit; 28.1501 applies Trans United Marketing, Ltd. v. Max Haleck. Inc., ASR
(1977).
Use of creditor’s funds to “keep the company
afloat” falls within gambit of “carrying on” business”, therefore 28.1503
applies and not subsection (a) of 28.1501. Max Haleck, inc. v. Trans United
Marketing, inc., ASR (1977).
Under
statute providing that interest on business loans may not exceed 18 per cent
annually, creditor whose contract specified 20 per cent interest would have
judgment for only 18 per cent. A.S.C.A.
§ 28.1503. Shantilal Brothers Limited v.
K.M.S.T. Wholesales, Inc., 9
A.S.R.2d 62 (1988).
28.1505 Open-end credit.
(a) Notwithstanding any other provision to the
contrary, the maximum rate of interest chargeable on open-end credit issued in
(b)
Open-end credit means credit extended by a
creditor under a plan which:
(1)
The creditor reasonably contemplates repeated
transactions,
(2)
The creditor may impose a finance charge from
time to time on an outstanding unpaid balance, and
(3)
The amount of credit that may be extended during
the term of the plan (up to any limit set by the creditor) is generally made
available to the extent that any outstanding balance is repaid.
(c)
Creditor means a person who extends credit that
is subject to a finance charge.
(d)
Person means a natural person or an organization,
including a corporation, partnership, proprietorship, association, cooperative,
estate, trust, or government unit.”
History: 1991 PL 22-21; 2004, PL 28-15.
28.1510 Penalty for usury.
Any
person who loans money or extends credit in any manner whatsoever and takes,
receives, reserves, or assesses interest, fees, or minimum charges thereon at a
rate higher than that allowed by law shall upon conviction be sentenced as for
a class A misdemeanor; and in addition, shall forfeit to the debtor
the full amount of the debt or obligation upon which the unlawful interest,
fee, or minimum was charged.
History: 1962, PL 7-23; 1963, PL 8-13; 1975, PL 14-16§ 3;
amd 1980, PL 16-90 § 25.
Case Notes:
Under Territorial
statute, one who makes a contract within the territory to extend credit at the
rate of 20 per cent commits the crime of usury and is liable to imprisonment
and to forfeiture of the entire amount of the debt. A.S.C.A. § 28.1510. Shantilal Brothers Limited v. K.M.S.T.
Wholesales, Inc., 9 A.S.R.2d 62 (1988).
Where debtor did not
plead usury as a defense to action on debt, court need not decide whether
statutory penalty of forfeiture can be invoked in a civil action. A.S.C.A. § 28.1510. Shantilal Brothers Limited v. K.M.S.T.
Wholesale, Inc., 9 A.S.R.2d 62 (1988).
Chapter 16
ESCHEAT
OF UNCLAIMED BANK DEPOSITS
Sections:
28.1601
Definitions.
28.1602
Certified check or account acquired through merger or otherwise.
28.1603
Fee or charges on inactive or dormant savings or time deposit
account.
28.1604
Presumption of no claimants-Escheat.
28.1605
Notice of unclaimed deposit-Mailing-Publication.
28.1606
Annual reports to Treasurer of unclaimed deposits-Failure to
make-Inspection by public.
28.1607
Escheat-Deposits of less than fifty dollars.
28.1609
Penalty for failure of Bank to pay over unclaimed deposits when
payable-Suits.
28.1610
Actions for escheat-Jurisdiction-Procedure.
28.1611
Liability of Bank ceases on payment to Treasurer.
28.1612
Bank records of escheated deposits-Preservation-Copies furnished
to Treasurer.
28.1613
Records of Treasurer of escheated deposits-Disposition.
28.1614
Services by salaried officials to be without charge-Expenses of
administration.
28.1615
Credit unions.
28.1601 Definitions.
As
used in this chapter, unless the context clearly requires otherwise:
(1) "Bank"
means any bank, trust company, savings bank, and savings bank having shares of
capital stock, organized and existing under any general or special law of this
territory, including any such bank, trust company, savings bank, and savings
bank having shares of capital stock, which may be in voluntary dissolution or
which may be in the possession of the commissioner of banking and insurance or
in receivership, and any private banker including any private banker for whose
banking business a receiver has been appointed, and any national banking
association organized under the Acts of Congress and doing business in this
Territory including any national banking association which may be in voluntary
dissolution or in receivership. This
definition includes the Development Bank of
(2) (a)
"Unclaimed Bank deposit" means and includes an unpaid balance of
money to the credit or in the name of: a
maker or payee of a certified check held by a Bank, together with all interest
accrued thereon whether entitled thereto or not on the records of the Bank, and
which after a period of 10 years has remained unclaimed, and a depositor, in
any capacity whatsoever, with a Bank in any demand, savings, or time deposit
account, together with all interest accrued thereon whether credited thereto or
not on the records of the Bank, which after a period of 10 years has remained
unclaimed exclusive of:
(i)
the unpaid balance in any such account which has
been reduced by withdrawal or increased by deposit, exclusive of interest
credit, within 10 years;
(ii)
the unpaid balance in any such account which is
evidenced by a passbook in which entry of interest credit has been made within
10 years or which passbook has been presented for entry of interest credit
within 10 year;
(iii)
the unpaid balance in any such account with
respect to which the Bank has written evidence received within 10 years that
the depositor or other person entitled thereto had knowledge thereof;
(iv)
the unpaid balance in any such account of a
depositor known by an officer or employee of the Bank to be living; and
(v)
the unpaid balance in any such account which is
evidenced by a passbook, which book has, to the knowledge of the Bank, within
10 years been balanced or verified.
(b)
In the case of a time deposit, no account shall
be deemed to be an unclaimed deposit until 10 years after its original date of
maturity.
(c)
"Unclaimed Bank deposit" also means,
includes, and refers to credits and deposits of every kind, character or form
in any name whatsoever and in any capacity whatsoever, including but not
limited to individuals, corporations, companies, associations, societies,
firms, partnerships, joint stock companies, and fiduciaries of any nature.
(3)
"Treasurer" means the Treasurer of
American Samoa.
History: 1988, PL 20-27.
26.1602 Certified
check or account acquired through merger or otherwise.
Any
bank which, through merger, reorganization, consolidation, or otherwise,
acquires any certified check or any account of any depositor in any capacity
whatsoever, shall, for the purpose of this chapter, be deemed to have been in
existence from the date such check was certified by any other bank or such
account originated in any other bank; and such certified check or account
constitutes an unclaimed bank deposit if it otherwise accords with the
definition of an unclaimed bank deposit.
History: 1988, PL
20-64.
26.1603 Fees
or charges on inactive or dormant savings or time deposit account.
During
the 10 year period of inactivity or dormancy specified in section 28.1601(2)
and until payment of funds to the Treasurer as provided in section 28.1608, it
is unlawful for any Bank to assess, collect, or deduct any fee or charge from
any savings or time deposit account because of that inactivity or dormancy,
except for the cost of publication in accordance with section 28.1605.
History: 1988, PL 20-64.
26.1604 Presumption
of no claimants-Escheat.
It shall be presumed that there is or are
no claimant or claimants who or which directly or indirectly has or have any
right, title or interest in any unclaimed bank deposit held by a bank, and such
unclaimed bank deposit shall be subject to escheat to the Territory.
History: 1988, PL
20-64.
26.1605 Notice
of unclaimed deposit-Mailing-Publication.
(a)
For the purposes of this section, an unclaimed
bank deposit shall be deemed to be one in which as of August 1 of a particular
year no transaction has occurred during the preceding 9 consecutive years.
(b)
Every bank having any such unclaimed deposits
shall, prior to August 15 of the year in which it becomes an unclaimed deposit
mail a "notice of unclaimed deposit" to the owner or owners of each
such account in the name and to the address of the owner or owners which
appears on the records of the bank, provided, however, that the bank need not
mail the notice to an owner or owners if any mailings by the bank to that owner
or owners within the prior year were returned to the bank as
undeliverable. The notice of unclaimed
deposit shall be in such form as approved by the Treasurer and must set forth
the name of the bank and where the name of the bank has been changed by merger,
reorganization, consolidation or otherwise, it must also set forth the original
name and address of the bank in which the deposit originated, the name of the
owner or owners and a statement that the balance of the account will be paid
over to the Territory on the following January unless the bank is contacted in
writing by the owner or his representative.
If such a written response is received by the bank, the response is
deemed to be a transaction with respect to the account and the account
thereafter ceases to be an unclaimed bank deposit for the purposes of
advertising as set forth in subsection (c) of this section.
(c)
Every bank having any unclaimed bank deposits
must advertise once during the second week of the month of October and once
during the second week of the month of November, printed in 8-point size type
in a newspaper published in American Samoa, a notice entitled "Notice of
the names of persons appearing as the owners of unclaimed amounts held by (name
of Bank)". Such notice must be in a
form approved by the Treasurer and must set forth the name and address of the
bank and where the name of the bank has been changed by merger, reorganization,
consolidation or otherwise, the notice must also set forth the original name
and address of the bank in which the deposit originated, and must list in
alphabetical order the name of each person to whose credit an unclaimed bank
deposit stands, but not the amount to the credit of each account, but no
account shall be advertised in which the unpaid balance is less than
$50.00. Any amount paid to a newspaper
for such publication must be charged by the bank equally against the unclaimed
bank deposits so advertised.
History: 1988, PL 20-64.
26.1606 Annual
reports to Treasurer of unclaimed deposits-Failure to make-Inspection by
public.
(a)
Not later than the thirty-first day of January in
each year after the year in which this act takes effect and as of December
thirty-first of the preceding year, every bank must make in duplicate a written
report to the Treasurer containing a true and accurate statement of all
unclaimed bank deposits held by the bank as of such date.
(b)
The report must set forth the name and address of
the bank and where the name of the bank has been changed by merger,
reorganization, consolidation or otherwise, also the original name and address
of the bank in which the deposit originated, and must list in alphabetical
order the name of each person to whose credit an unclaimed bank deposit stands,
the last address of the depositor appearing on the records of the bank, the
identification number, if any, of each account, and the amount to the credit of
each account.
(c)
The report must, where the bank is a corporation,
be signed by its president, a vice-president, Treasurer, assistant Treasurer,
cashier, or assistant cashier. If such
bank is in voluntary dissolution, the report must be signed by one or more of its
trustees designated by its Board of Trustees for that purpose. If such bank is in the possession of the
commissioner of banking and insurance, the report must be signed by the
commissioner or by a special deputy commissioner appointed by him and in actual
charge of the business and affairs of the bank.
If a receiver has been appointed for a corporate bank or private banker,
the report must be signed by such receiver.
In the case of a private banker, the report must be signed by such
banker.
(d)
The person signing the report must certify that
such report is a true and accurate statement of all unclaimed bank deposits
held by the bank as of the report date to the best of his knowledge,
information and belief after diligent inquiry.
The person signing the report may, in making the report, rely upon
information with respect to unclaimed bank deposits furnished by the officers
and employees and records of the bank.
(e)
If the bank has no unclaimed bank deposits a
written report so stating must be made to the Treasurer.
(f)
Any bank which fails to file such a report with
the Treasurer shall forfeit to the Territory the sum of fifty dollars ($50.00)
for each day such report is not filed, and if not paid, such penalty must be
sued for and be received by the Treasurer in a civil action in the name of the
Territory. The Treasurer has the power
to waive the penalty and to extend the time within which a report may be filed.
(g)
Immediately upon receipt of such report the
Treasurer must deliver one duplicate of the report to the attorney and the
Treasurer must cause the other duplicate report to be permanently bound with an
alphabetical index of the depositors with appropriate references to the bound
reports. The bound reports and indices
must be open for public inspection during usual business hours and under
regulations prescribed by the Treasurer.
History: 1988, PL 20-64.
26.1607 Escheat-Deposits
of less than fifty dollars.
All unclaimed bank deposits of less than
fifty dollars ($50.00) held by any bank as of December thirty-first of any year
shall escheat to the Territory. When a
report thereof is made to the Treasurer pursuant to the provisions of section
28.1606 the funds must be paid to the Treasurer simultaneously with the making
of such report.
History: 1988, PL
20-64.
26.1608 Unclaimed
deposits reported on December 31 to escheat-Deposits less than fifty dollars
reported separately.
(a)
All unclaimed bank deposits reported by any bank
as held by it as of December thirty-first, one thousand nine hundred and
eighty-seven and as of December thirty-first of each year thereafter,
regardless of the amount thereof, shall escheat to the Territory. When a report thereof is made to the
Treasurer pursuant to section 28.1606 the funds must be paid over to the
Treasurer by such bank simultaneously with the making of the report. All unclaimed bank deposits of less than
fifty dollars ($50.00), when reported in any report or revised report or
supplemental report filed, must be separately listed under the heading
"Deposits of less than fifty dollars ($50.00)" and the total of all
such deposits must be separately indicated.
History: 1988, PL
20-64.
26.1609 Penalty
for failure of bank to pay over unclaimed deposits when payable-Suits.
Any bank which fails to pay over to the
Treasurer any unclaimed bank deposit as provided in section 26.1608 shall be
liable to a penalty of fifty dollars ($50.000) for each day such payment is not
made. If such penalty, is not paid, the
Treasurer must file a civil action in the name of the Territory against the
Bank to recover it.
History: 1988, PL
20-64.
26.1610 Actions
for escheat-Jurisdiction-Procedure.
It is the duty of the Attorney General
within a reasonable time after receipt by him of the duplicate report to
institute actions for escheat to the Territory of the unclaimed Bank deposits
disclosed by such report which are in an amount of fifty dollars ($50.00) or
more and which have not been paid over to the Territory. The High Court has jurisdiction of such
actions. In any such action absent
defendants may be proceeded against by newspaper publication, upon order of the
court.
History: 1988, PL
20-64.
26.1611 Liability
of Bank ceases on payment to Treasurer.
No Bank which must pay over to the
Treasurer any unclaimed bank deposit shall be held liable to any claimant having
or asserting any right, title or interest in or to the same personally or in
any capacity whatsoever; and no action or proceedings of any kind for the
recovery of money represented thereby, or any part thereof, shall lie against
such bank.
History: 1988, PL 20-64.
28.1612 Bank
records of escheated deposits-Preservation-Copies furnished to Treasurer.
No bank shall destroy or otherwise dispose
of any of its records or files pertaining to any unclaimed bank deposit which
is subject to escheat to the Territory or which has escheated to the Territory;
but all banks must preserve such records and files, and any of the originals
thereof or photostatic copies thereof duly certified by any official of the
bank to be true copies, must be furnished to the Treasurer whenever he makes a
request therefore in writing.
History: 1988, PL 20-64.
28.1613 Records
of Treasurer of escheated deposits-Disposition.
(a)
The Treasurer must establish and maintain records
of all escheated unclaimed bank deposits received by him, which in the case of
deposits with a net balance of fifty dollars ($50.00) or more, must show in
alphabetical order the names of the depositors, the amounts received, the name
and address of the bank from which the funds were received, the identification
numbers of the accounts, if any, and must also establish and maintain an index
thereto, which records and index must at all times during the usual business
hours be open to public examination.
(b)
The Treasurer must credit seventy-five percent
(75%) of the amount of each escheated unclaimed bank deposit received by him to
the general fund, and must establish and maintain a separate account to be
designed as the “unclaimed bank deposits escheat receive fund” which is
hereinafter referred to as the “reserve fund” and credit it with the other
twenty-five percent (25%).
(c)
The Treasurer must invest and reinvest all moneys
credited to the reserve fund in bonds of interest bearing notes or obligations
of the United States or in bonds or interest bearing notes or obligations
guaranteed as to principal and interest by the United States or in bonds or
interest bearing notes or obligations for the payment of the principal and
interest of which the faith and credit of the United States are distinctly
pledged or in bonds or interest bearing notes or other obligations of this
Territory or in bonds or interest bearing notes or other obligations of any
county, city, town, township, borough, village or other municipal or political
subdivision of this Territory, issued under authority of any law of this
Territory.
(d)
The income received from the investments and
reinvestments of the reserve fund must be added to the reserve fund and be held
and retained as part thereof subject to like investment and reinvestment.
(e)
The reserve fund must be used and expended by the
Treasurer for the payment of expenses and costs incurred by the Treasurer and
the attorney general pursuant to the provisions of section 28.1614.
(f)
At any time after receipt by the Treasurer of any
escheated unclaimed bank deposit anyone claiming to be entitled thereto or to
any part thereof may file a claim therefor with the Treasurer who is authorized
to pass upon and determine the claimant’s claim. If the Treasurer determines the claimants
proof of title is sufficient, he must pay the escheated unclaimed bank deposit
or such part thereof to which the claimant is entitled, without interest, out
of the reserve fund to the claimant. If
the cash balance in the reserve fund is insufficient to make such payment the
Treasurer must sell such of the investments of the reserve fund as may be
necessary to make such payment.
(g)
If the Treasurer determines that the claimant’s
proof of title is not sufficient to entitle the claimant to such payment, the
claimant may, within sixty days after the date of such determination by the
Treasurer, file an action in the High Court against the Treasurer, and it shall
be the duty of the Treasurer, and of the attorney on his behalf, to take such
action with respect thereto as they may deem necessary to protect the interests
of the Territory. The court may proceed
in the action in a summary manner or otherwise.
Upon proof satisfactory to the court of plaintiff’s claim of title to the
escheated unclaimed bank deposit or any part thereof, judgment must be entered
establishing his claim and ordering the Treasurer to pay to the plaintiff the
amount specified in such judgment together with such costs as the court may
allow the plaintiff. Upon service upon
the Treasurer of a copy of such judgment certified to be a true copy by the
clerk of the High Court, the Treasurer must pay to the plaintiff out of the
reserve fund the amount of amounts specified.
(h)
If the court determines that plaintiff’s proof of
title is not sufficient to establish his claim to the escheated unclaimed bank
deposit or any part thereof, a judgment to that effect must be entered. If on any appeal from the judgment, it is
reused and plaintiff’s claim of title to the escheated unclaimed bank deposit
or any part thereof is sustained, the Treasurer must pay to the plaintiff, out
of the reserve fund, the amount or amounts to which the plaintiff is entitled,
together with such costs awarded to the plaintiff.
History: 1988, PL 20-64.
28.1614 Services
by salaried officials to be without charge-Expense of administration.
All services required by this chapter to
be performed by the Clerk of the High Court, the Marshall and any other
salaried public official, shall be without fees, costs, counsel fees or any
other charge, but the Treasurer must pay out of the reserve fund all expenses
and costs incurred by the Treasurer for the administration of the fund and for
the establishment and maintenance of his records relative to escheated
unclaimed bank deposits, and also all expenses and costs incurred by the
attorney general, including costs and expenses for legal and clerical
services. The Treasurer and the Attorney
General may each employ such persons as needed to carry out the provisions of
this chapter and fix their compensation.
History: 1988, PL 20-64.
28.1615 Credit unions.
When no transaction has occurred in a
credit union member's share or deposit account for 12 months and his
whereabouts are unknown, as verified by the return of a certified letter
addressed to him at his last known address, all sums due to the member shall be
credited to a special reserve account.
If the sums are not reclaimed within a five year period, they shall
escheat to the Territory and be forwarded to the Treasurer in accordance with
procedures in this chapter.
History: 1988, PL 20-64.