HOUSE BILL 658
47th legislature - STATE OF NEW MEXICO - first session, 2005
INTRODUCED BY
Al Park
AN ACT
RELATING TO FINANCIAL INSTITUTIONS; PROVIDING RECIPROCAL CORPORATE FIDUCIARY POWERS TO CERTAIN FOREIGN FIDUCIARIES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
Section 1. RECIPROCAL CORPORATE FIDUCIARY POWERS--CERTIFICATES OF RECIPROCITY.--
A. As used in this section:
(1) "director" means the director of the financial institutions division of the regulation and licensing department; and
(2) "foreign fiduciary" means:
(a) a bank or other corporation organized under the laws of any state of the United States other than New Mexico; or
(b) a national bank having its principal place of business in any state of the United States other than New Mexico.
B. A foreign fiduciary may act in this state as trustee, executor, administrator, guardian or in any other fiduciary capacity, without the necessity of complying with any law of this state relating to the licensing of foreign banking corporations or relating to the qualifications of foreign fiduciaries to do business in this state, and notwithstanding any prohibition, limitation or restriction contained in any other law of this state, if:
(1) the foreign fiduciary is authorized to act in a similar fiduciary capacity in the state in which it is incorporated or, if a national bank, in the state in which it has its principal place of business;
(2) a bank or other corporation organized under the laws of New Mexico or a national bank having its principal place of business in New Mexico may act in a fiduciary capacity in that state without a further showing or qualification, other than that it is authorized to act in a similar fiduciary capacity in New Mexico and complies with any law of that state concerning service of process that:
(a) may require the appointment of an official or other person for the receipt of process; or
(b) contains provisions to the effect that a bank or other corporation, which is not incorporated under the laws of that state, or, if a national bank, which does not have its principal place of business in that state, acting in that state in a fiduciary capacity, shall be deemed to have appointed an official of that state to be its attorney upon whom may be served all legal process in any proceeding against it relating to any trust, estate or matter in respect of which the corporation acts in that state in a fiduciary capacity, and that the engagement in that state in any acts in a fiduciary capacity shall be evidence of its agreement that the process against it shall be of the same legal force and validity as though served upon it personally; and
(3) the foreign fiduciary has a certificate of reciprocity issued pursuant to the provisions of this section.
C. A foreign fiduciary eligible to act in a fiduciary capacity in this state pursuant to the provisions of this section may so act whether or not a resident of this state is acting with it in a fiduciary capacity, may use its corporate name in connection with its activity in this state and may be appointed to act in a fiduciary capacity by any court, all notwithstanding any provision of law to the contrary.
D. Before acting in any fiduciary capacity in this state, the foreign fiduciary shall file with the director a written application for a certificate of reciprocity. The application shall:
(1) state the correct corporate name of the foreign fiduciary;
(2) state the name of the state under the laws of which it is incorporated, or, if a national bank, shall state that fact;
(3) state the address of its principal business office;
(4) describe the fiduciary capacity it desires to act in New Mexico;
(5) state that the application shall constitute the irrevocable appointment of the director as its attorney to receive service of all legal process in any proceeding against it relating to any trust, estate or matter in respect of which the foreign fiduciary may act in New Mexico in the fiduciary capacity pursuant to the certificate of reciprocity;
(6) unless the applicant is subject to the jurisdiction of the office of thrift supervision of the United States department of the treasury, include a fiduciary bond in the amount of one million dollars ($1,000,000) for the benefit of the director in a format approved by the director;
(7) be verified by an officer of the foreign fiduciary; and
(8) include such certificates of public officials and copies of documents certified by public officials as may be necessary to show that the foreign fiduciary is authorized to act in a fiduciary capacity similar to that in which it desires to act in New Mexico, in the state in which it is incorporated, or, if a national bank, the state in which it has its principal place of business.
E. Upon verification of the contents of the application, the director shall issue to the corporation a certificate of reciprocity. The certificate of reciprocity shall certify that the foreign fiduciary is eligible to act in New Mexico pursuant to this section and shall describe the fiduciary capacity in which the foreign fiduciary is eligible to act.
F. A certificate of reciprocity issued to a foreign fiduciary shall remain in effect unless revoked by written notice from the director that the foreign fiduciary has ceased to qualify pursuant to Subsection B of this section or has violated a condition of the certificate; provided that no revocation of a certificate shall affect the right of the foreign fiduciary to continue to act in a fiduciary capacity in estates or matters in which it has theretofore begun to act in a fiduciary capacity pursuant to the certificate.
G. Unless otherwise authorized by law to conduct business in New Mexico, a foreign fiduciary shall not establish or maintain a place of business, branch office or agency for the conduct of business as a fiduciary, provided that it may open and operate a trust representative office in New Mexico if:
(1) the foreign fiduciary has received a certificate of reciprocity pursuant to the provisions of this section; and
(2) a similar institution is permitted to open and operate a trust representative office under the same or less restrictive conditions in the state in which the foreign fiduciary is organized or has its principal office.
H. A foreign fiduciary, insofar as it acts in a fiduciary capacity in this state pursuant to a certificate of reciprocity and the provisions of this section, shall not be deemed to be transacting business in this state, if the foreign fiduciary does not establish or maintain in this state a place of business, branch office or agency for the conduct in this state of business as a fiduciary.
I. Every foreign fiduciary to which a certificate of reciprocity has been issued shall be deemed to have appointed the director to be its attorney upon whom may be served all legal process in any proceeding against it relating to the exercise of any fiduciary capacity pursuant to the certificate of reciprocity. Service of process shall be made upon the director or to any person authorized by the director to receive service. The director shall immediately forward the process to the foreign fiduciary, by registered mail, addressed to it at the address on file with the director. The director shall keep a permanent record showing for all process served, the style of the proceeding, the court in which it was brought, the name and title of the officer serving the process, the day and hour of service, the day of mailing by registered mail to the foreign fiduciary and the address to which it was mailed.
J. Nothing in this section shall be construed to prohibit any activity in this state by a bank or other corporation that is not incorporated under the laws of this state or, if a national bank, that does not have its principal place of business in this state that would be lawful in the absence of this section.
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