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H.B. 5 Enrolled
AN ACT RELATING TO FINANCIAL INSTITUTIONS; REPEALING CONSUMER FUNDS
TRANSFER FACILITIES ACT; ENACTING THE AUTOMATED TELLER MACHINE
ACT; DEFINING TERMS; PROVIDING THE SCOPE OF THE ACT; LIMITING
AUTHORITY TO OPERATE AUTOMATED TELLER MACHINE; LIMITING USE OF
AUTOMATED TELLER MACHINE; SPECIFYING POWERS OF INSTITUTION
OPERATING AUTOMATED TELLER MACHINE; PERMITTING CONTRACTUAL
WAIVER OF UNIFORM COMMERCIAL CODE PROVISIONS; ESTABLISHING
DEPARTMENT NOTIFICATION REQUIREMENTS; AND PROVIDING AN
This act affects sections of Utah Code Annotated 1953 as follows:
7-1-103, as last amended by Chapter 182, Laws of Utah 1996
7-7-21, as last amended by Chapter 200, Laws of Utah 1994
7-16a-101, Utah Code Annotated 1953
7-16a-102, Utah Code Annotated 1953
7-16a-103, Utah Code Annotated 1953
7-16a-201, Utah Code Annotated 1953
7-16a-202, Utah Code Annotated 1953
7-16a-203, Utah Code Annotated 1953
7-16a-204, Utah Code Annotated 1953
7-16-2, as last amended by Chapter 244, Laws of Utah 1985
7-16-3, as enacted by Chapter 7, Laws of Utah 1979
7-16-9, as last amended by Chapter 148, Laws of Utah 1992
7-16-10, as last amended by Chapter 20, Laws of Utah 1995
7-16-19, as last amended by Chapter 200, Laws of Utah 1994
Be it enacted by the Legislature of the state of Utah:
Section 1. Section 7-1-103 is amended to read:
As used in this title:
(1) (a) "Bank" means a person authorized under the laws of this state, another state, or the
United States to accept deposits from the public.
(b) "Bank" does not include:
(i) a federal savings and loan association or federal savings bank[
(ii) a savings and loan association or savings bank subject to Chapter 7[
(iii) an industrial loan corporation subject to Chapter 8[
(iv) a federally chartered credit union[
(v) a credit union subject to Chapter 9.
(2) "Banking business" means the offering of deposit accounts to the public and the conduct
of such other business activities as may be authorized by this title.
(3) (a) "Branch" means a place of business of a financial institution, other than its main
office, at which deposits are received and paid.
(b) "Branch" does not include:
(ii) a point-of-sale terminal, as defined in Section 7-16a-102; or
(4) "Commissioner" means the Commissioner of Financial Institutions.
(5) "Control" means the power, directly or indirectly, to:
(a) direct or exercise a controlling influence over the management or policies of a financial
institution, or over the election of a majority of the directors or trustees of an institution;
(b) vote 20% or more of any class of voting securities of a financial institution by an
(c) vote more than 5% of any class of voting securities of a financial institution by a person
other than an individual.
(6) "Credit union" means a cooperative, nonprofit association incorporated under:
(a) Chapter 9[
(b) 12 U.S.C. Sec. 1751 et seq., Federal Credit Union Act, as amended.
(7) "Department" means the Department of Financial Institutions.
(8) "Depository institution" means a bank, savings and loan association, savings bank,
industrial loan corporation, credit union, or other institution that holds or receives deposits, savings,
or share accounts, or issues certificates of deposit, or provides to its customers other depository
accounts that are subject to withdrawal by checks, drafts, or other instruments or by electronic
means to effect third party payments.
(9) (a) "Depository institution holding company" means:
(i) a person other than an individual that has control over any depository institution or that
becomes a holding company of a depository institution under Section 7-1-703; or
(ii) a person other than an individual that the commissioner finds, after considering the
specific circumstances, is exercising or is capable of exercising a controlling influence over a
depository institution by means other than those specifically described in this section.
(b) Except as provided in Section 7-1-703, a person is not a depository institution holding
company solely because it owns or controls shares acquired in securing or collecting a debt
previously contracted in good faith.
(10) "Financial institution" means any institution subject to the jurisdiction of the department
because of this title.
(11) (a) "Financial institution holding company" means a person, other than an individual
that has control over any financial institution or any person that becomes a financial institution
holding company under this chapter, including an out-of-state or foreign depository institution
(b) Ownership of a service corporation or service organization by a depository institution
does not make that institution a financial institution holding company.
(c) A person holding 5% or less of the voting securities of a financial institution is rebuttably
presumed not to have control of the institution.
(d) A trust company is not a holding company solely because it owns or holds 20% or more
of the voting securities of a financial institution in a fiduciary capacity, unless the trust company
exercises a controlling influence over the management or policies of the financial institution.
(12) "Foreign depository institution" means a depository institution chartered or authorized
to transact business by a foreign government.
(13) "Foreign depository institution holding company" means the holding company of a
foreign depository institution.
(14) "Home state" means:
(a) for a state chartered depository institution, the state that charters the institution;
(b) for a federally chartered depository institution, the state where the institution's main
office is located; and
(c) for a depository institution holding company, the state in which the total deposits of all
depository institution subsidiaries are the largest.
(15) "Host state" means:
(a) for a depository institution, a state, other than the institution's home state, where the
institution maintains or seeks to establish a branch; and
(b) for a depository institution holding company, a state, other than the depository institution
holding company's home state, where the depository institution holding company controls or seeks
to control a depository institution subsidiary.
(16) "Industrial loan corporation" means a corporation or other business entity conducting
the business of an industrial loan corporation under Chapter 8.
(17) "Insolvent" means the status of a financial institution that is unable to meet its
obligations as they mature.
(18) "Institution" means a corporation, limited liability company, partnership, trust,
association, joint venture, pool, syndicate, unincorporated organization, or any form of business
(19) "Institution subject to the jurisdiction of the department" means an institution or other
person described in Section 7-1-501.
(20) "Liquidation" means the act or process of winding up the affairs of an institution subject
to the jurisdiction of the department by realizing upon assets, paying liabilities, and appropriating
profit or loss, as provided in Chapters 2 and 19.
(21) "Liquidator" means a person, agency, or instrumentality of this state or the United
States appointed to conduct a liquidation.
(22) (a) "Member of a savings and loan association" means:
(i) a person holding a savings account of a mutual association;
(ii) a person borrowing from, assuming, or becoming obligated upon a loan or an interest
in a loan held by a mutual association; or
(iii) any person or class of persons granted membership rights by the articles of incorporation
or the bylaws of an association.
(b) A joint and survivorship or other multiple owner or borrower relationship constitutes a
(23) "Negotiable order of withdrawal" means a draft drawn on a NOW account.
(24) (a) "NOW account" means a savings account from which the owner may make
withdrawals by negotiable or transferable instruments for the purpose of making transfers to third
(b) A NOW account is not a demand deposit. Neither the owner of a NOW account nor any
third party holder of an instrument requesting withdrawal from the account has a legal right to make
withdrawal on demand.
(25) "Out-of-state" means, in reference to a depository institution or depository institution
holding company, an institution or company whose home state is not Utah.
(26) "Person" means an individual, corporation, limited liability company, partnership, trust,
association, joint venture, pool, syndicate, sole proprietorship, unincorporated organization, or any
form of business entity.
(27) "Receiver" means a person, agency, or instrumentality of this state or the United States
appointed to administer and manage an institution subject to the jurisdiction of the department in
receivership, as provided in Chapters 2 and 19.
(28) "Receivership" means the administration and management of the affairs of an institution
subject to the jurisdiction of the department to conserve, preserve, and properly dispose of the assets,
liabilities, and revenues of an institution in possession, as provided in Chapters 2 and 19.
(29) "Savings account" means any deposit or other account at a depository institution that
is not a transaction account.
(30) "Savings and loan association" means a mutual or capital stock savings association, a
savings and loan association, a mutual or capital stock savings bank, or a building and loan
association subject to this title, including all federal associations and all out-of-state associations,
as defined in Section 7-7-2.
(31) "Service corporation" or "service organization" means a corporation or other business
entity owned or controlled by one or more financial institutions that is engaged or proposes to
engage in business activities related to the business of financial institutions.
(32) "State" means, unless the context demands otherwise, a state, the District of Columbia,
or the territories of the United States.
(33) "Subsidiary" means a business entity under the control of an institution.
(34) (a) "Transaction account" means a deposit, account, or other contractual arrangement
in which a depositor, account holder, or other customer is permitted, directly or indirectly, to make
withdrawals by check or other negotiable or transferable instrument, by payment order of
withdrawal, by telephone transfer, by other electronic means, or by any other means or device for
the purpose of making payments or transfers to third persons. [
(b) "Transaction account" includes:
(i) demand deposits[
(ii) NOW accounts[
(iii) savings deposits subject to automatic transfers[
(iv) share draft accounts.
(35) "Trust company" means a person authorized to conduct a trust business, as provided
in Chapter 5.
(36) "Utah depository institution" means a depository institution whose home state is Utah.
(37) "Utah depository institution holding company" means a depository institution holding
company whose home state is Utah.
Section 2. Section 7-7-21 is amended to read:
7-7-21. Powers of associations.
(1) Every association incorporated or operating under the provisions of this chapter shall
have all the powers enumerated, authorized, and permitted by this chapter and such other rights,
privileges, and powers as may be incidental to or reasonably necessary or appropriate for the
accomplishment of the objects and purposes of the association.
(2) Among others, and except as otherwise limited by the provisions of this chapter, every
association shall have the following powers:
(a) to have perpetual existence, to adopt and use a corporate seal, which may be affixed by
imprint, facsimile, or otherwise; and to adopt and amend bylaws as provided in this chapter;
(b) to sue, be sued, complain, and defend in any court;
(c) (i) to acquire, hold, sell, dispose of, and convey real and personal estate consistent with
the association's objects and powers[
(ii) to mortgage, pledge, or lease any real or personal estate[
(iii) to take property by gift, devise, or bequest;
(d) if and when an association is not a member of a federal home loan bank, to borrow from
sources, individual or corporate, in addition to its savings liability and other accounts, not more than
an aggregate amount equal to 25% of its assets on the date of borrowing. If and when an association
is a member of a federal home loan bank, to borrow from sources, individual or corporate, in
addition to its savings liability and other accounts, not more than an aggregate amount equal to 60%
of its assets on the date of borrowing or a greater amount approved by the commissioner to insure
parity between state chartered savings and loan associations and federal associations. It is not a
violation of this section if the borrowing limits are exceeded because of a subsequent reduction in
assets of an association. Any association may borrow such additional sums as the commissioner
may approve in writing. All such loans and advances may be secured by property of the association,
may be made with convertible features, and may be evidenced by such notes, bonds, debentures,
commercial paper, bankers' acceptances, or other obligations or securities (except capital stock and
capital certificates) as may be generally authorized by the commissioner, except that no authorization
shall be required for securities guaranteed under Section 306(g) of the National Housing Act of
(e) to issue and sell, directly or through underwriters, capital certificates containing a stated
maturity date which represent nonwithdrawable capital contributions, and constitute part of the
reserves and net worth of the association. These certificates shall have no voting rights, shall be
subordinate to all savings accounts, debt obligations, and claims of creditors of the association and
shall constitute a claim in liquidation against any reserves, surplus, and other net worth accounts
remaining after the payment in full of all savings accounts, debt obligations, and claims of creditors.
The capital certificates shall be entitled to the payment of earnings prior to the allocation of any
income to surplus or other net worth accounts of the association and may be issued with a fixed rate
of earnings or with a prior claim to distribution of a specified percentage of any net income
remaining after required allocations to reserves, or a combination thereof. Losses shall be charged
against capital certificates only after reserves, surplus, and other net worth accounts have been
(f) (i) to appoint and remove such officers, agents, and employees as its business shall
require and to provide them suitable compensation;
(ii) to enter into employment contracts not to exceed ten years without the consent of the
(iii) to provide for life, health, and casualty insurance for officers and employees[
(iv) to adopt and operate reasonable bonus and incentive plans and retirement benefits for
those officers and employees; and
(v) to provide for indemnification of its officers, employees, and directors as required or
permitted in this chapter, whether by insurance or otherwise;
(g) to obtain and maintain insurance of its deposits by the Federal Deposit Insurance
Corporation or other federal deposit insurance agency;
(h) to qualify as and become a member of any federal home loan bank;
(i) (i) to act as fiscal agent of the United States, and, when so designated by the Secretary
of the Treasury, to perform, under such regulations as [
prescribe, all such reasonable duties as fiscal agent of the United States as [
Treasury may require; and
(ii) to act as agent for any instrumentality of the United States; and when so designated by
the state treasurer or other appropriate state officer, to act as agent of [
(j) to become a member of, deal with, maintain reserves or deposits with, or make reasonable
payments or contributions to any organization or instrumentality, government or private, to the
extent that the organization or instrumentality assists in furthering or facilitating the association's
purposes, powers, services, or community responsibilities, and to comply with any reasonable
requirements or conditions of eligibility;
(k) to act as depository for receipt of payments of federal or state taxes and loan funds, and
satisfy any federal or state statutory or regulatory requirements in connection therewith, including:
(i) pledging of assets as collateral[
(ii) payment of earnings at prescribed rates[
(iii) notwithstanding any other provision of this chapter, issuing the account subject to rights
of immediate withdrawal;
(l) to sell or assign any loan, including any participating interest therein, at any time;
(m) to service loans and investments for others;
(n) to act and receive compensation as trustee of any trust created or organized in the United
States and forming a part of a stock bonus, pension, or profit-sharing plan which qualifies or
qualified for specific tax treatment under Section 401 of the Internal Revenue Code of 1986, and to
act as trustee or custodian of an individual retirement account within the meaning of Section 408 of
that code. All funds held in fiduciary capacity by any such association under the authority of this
subsection may be commingled and consolidated for appropriate purposes of investment, so long
as records reflecting each separate beneficial interest are maintained by the fiduciary, unless that
responsibility is lawfully assumed by another appropriate party;
(o) to act as assignee, agent, receiver, trustee, executor, administrator, conservator, guardian,
custodian, personal representative, or in any other fiduciary capacity, and to execute trusts of every
description not inconsistent with law, and to receive reasonable compensation therefor. An
association exercising trust or other fiduciary powers under this subsection shall have all powers,
privileges, and immunities granted in Chapter 5. Funds held by an association as fiduciary under
this subsection may be commingled and consolidated for appropriate purposes of investment,
provided that records reflecting the separate interest of each beneficiary shall be maintained by the
fiduciary, unless that responsibility is lawfully assumed by another appropriate party. Trust funds
available for investment shall be invested at the time and in the manner specified by the agreement,
instrument, or order creating or defining the fiduciary estate, but may be invested in savings accounts
of the associations, unless the instrument, agreement, or order prohibits such investment;
(p) subject to [
financial transactions effected by electronic means;
(q) to maintain and let safes, boxes, or other receptacles or premises for the safekeeping of
personal property upon such terms and conditions as may be agreed upon;
(r) to offer money orders, travel checks, and similar instruments for its own account or as
agent for any organization empowered to sell such instruments through agents within this state;
(s) to act as agent or escrowee for others;
(t) to declare and pay dividends on capital stock in cash or property out of the unreserved
and unrestricted earned surplus of the association, or in its own shares, from time to time, except
when there is a deficiency in the reserves or net worth of the association under rules issued by the
commissioner under Section 7-7-20, and except when the association is in an impaired condition or
when the payment thereof would cause the association to be in an impaired condition. A split-up
or division of the issued shares of capital stock into a greater number of shares without increasing
the stated capital of the association is authorized, and shall not be construed to be a dividend within
the meaning of this section;
(u) to acquire deposits from any individual or entity and pay earnings thereon, to offer
interest bearing or noninterest bearing accounts from which withdrawals may be made by negotiable
or transferable instruments for the purpose of making transfers to third parties, and to lend, and
commit to lend, extend credit, and invest its funds as provided for in this chapter; and
(v) to engage in other activities, exercise other powers and to enjoy other rights, privileges,
benefits, and immunities authorized by rules of the commissioner and, particularly, under the
authority given to the commissioner in Subsection 7-1-301(3), which authority shall be exercised
to prevent competitive disparities between associations chartered in this state and federal
Section 3. Section 7-16a-101 is enacted to read:
This chapter is known as the "Automated Teller Machine Act."
Section 4. Section 7-16a-102 is enacted to read:
As used in this chapter:
(1) "Automated teller machine" means an electronic information processing device that:
(a) is readily accessible to the general public; and
(b) on behalf of an issuer:
(i) dispenses currency or coin; or
(ii) accepts deposits or payments.
(2) "Customer" means a user of a device for access.
(3) "Device for access" means a card, code, or other means of access to a customer's account,
or any combination of these, that may be used to deposit or withdraw cash through an automated
(4) "Electronic information processing device" means equipment activated by a device for
access that transmits electronic impulses to a depository institution on a real-time or delayed-time
(5) "Issuer" means:
(a) a depository institution that issues a device for access, whether or not the depository
institution is an operator; or
(b) a state or federal governmental agency that issues a device for access that allows a person
to receive benefits from or through the state or federal governmental agency.
(6) "Point-of-sale terminal" means an electronic information processing device controlled
by or accessible to a merchant or other provider of goods or services that authorizes:
(a) in payment for goods or services, a debit or credit to a customer's account at:
(i) a depository institution; or
(ii) a state or federal governmental agency; and
(b) the merchant or other provider of goods or services to dispense currency or coin to a
(7) "Operator" means an institution that:
(a) (i) is a depository institution;
(ii) is a depository institution holding company; or
(iii) is an institution directly or indirectly owned or controlled by one or more depository
institutions or depository institution holding companies; and
(b) owns or contracts with an owner of an automated teller machine to operate the automated
Section 5. Section 7-16a-103 is enacted to read:
7-16a-103. Application of chapter.
(1) This chapter does not:
(a) authorize a depository institution, or any other person, to engage in any transaction not
otherwise specifically permitted by applicable law; or
(b) apply to the use of any device capable of transmitting electronic impulses that is not
readily accessible to the general public for the primary purpose of initiating transactions with
(2) Use of an automated teller machine to effect a transaction is only an additional means
of effecting the transaction and this chapter does not limit or enlarge the rights of persons under state
or federal statute or under any rules or regulations made under those statutes that govern credit or
deposit account relationships.
Section 6. Section 7-16a-201 is enacted to read:
7-16a-201. Authority to operate an automated teller machine.
An automated teller machine located in this state shall be operated only by:
(1) a depository institution;
(2) a depository institution holding company; or
(3) an institution directly or indirectly owned or controlled by one or more depository
institutions or depository institution holding companies.
Section 7. Section 7-16a-202 is enacted to read:
7-16a-202. Powers of depository institutions operating automated teller machines.
(1) An operator may:
(a) make an automated teller machine available for use by customers of one or more issuers;
(b) connect the automated teller machine with an electronic consumer funds transfer system
connecting one or more depository institutions to one or more automated teller machines; and
(c) impose a transaction fee for the use of the automated teller machine, if the imposition of
the fee is disclosed at a time and in a manner that allows a user to terminate or cancel the transaction
without incurring the transaction fee.
(2) Except for the dispensing of currency or coin or accepting deposits or payments, any
service provided by an operator to a customer at the automated teller machine is not governed by this
(3) The transaction fee permitted in Subsection (1)(c) may be in addition to any other
charges imposed by any of the following entities involved in the transaction:
(a) an electronic consumer funds transfer system;
(b) a depository institution; or
(c) an issuer.
(4) Any of the following entities may charge any or all customers any transaction fee
allowed or not prohibited by state or federal law:
(a) a depository institution;
(b) an owner;
(c) an operator;
(d) an issuer; or
(e) an electronic consumer funds transfer system.
Section 8. Section 7-16a-203 is enacted to read:
7-16a-203. Contractual waiver of Uniform Commercial Code provisions.
(1) (a) Subject to Subsections (1)(b) and (2), if the application of Title 70A, Uniform
Commercial Code, is inconsistent with the operation of an automated teller machine, a point-of-sale
terminal, or both, the requirements of Title 70A, Uniform Commercial Code, may be varied by
contractual agreement of any:
(i) depository institution;
(ii) switching facility; or
(iii) clearing house as defined by Section 70A-4-104.
(b) A contractual agreement under Subsection (1)(a) may not disclaim responsibility for or
limit the measure of damages for a depository institution's, switching facility's, or clearing house's:
(i) lack of good faith; or
(ii) failure to exercise ordinary care.
(2) Notwithstanding Subsection (1)(a), the commissioner may, after notice and hearing,
require rescission or modification of any provision of a contractual agreement permitted by
Subsection (1)(a) if:
(a) that provision relates to the rights and obligations of:
(i) account holders of depository institutions;
(iii) merchant customers; or
(iv) others using or having access to automated teller machines, point-of-sale terminals, or
(b) the commissioner finds the provision is unconscionable or contrary to the public interest.
Section 9. Section 7-16a-204 is enacted to read:
7-16a-204. Department notification requirements.
(1) (a) Except as provided in Subsection (3), an operator may not operate, relocate, or
discontinue operating an automated teller machine unless the operator provides notice to the
department in accordance with this section.
(b) An operator may operate, relocate, or discontinue operating an automated teller machine
30 days from the day the department accepts the notice filed under this section as complete.
(c) No later than 30 days before operating, relocating, or discontinuing the operation of an
automated teller machine located in this state, the operator shall notify the department of the intent
to operate, relocate, or discontinue the operation of the automated teller machine.
(d) The notice required under Subsection (1)(a) shall state:
(i) if operating or relocating an automated teller machine:
(A) the proposed location of the automated teller machine;
(B) whether the proposed location is permanent or temporary; and
(C) the period the automated teller machine will be at the proposed location, if the location
is temporary; and
(ii) any information requested on a form prescribed by the department.
(e) The department may not require the operator to pay a fee for filing the notice required
under this Subsection (1).
(2) The failure to provide notice to the department as required in Subsection (1) is a
violation against which the commissioner may exercise the general enforcement powers set forth in
(3) This section does not apply to automated teller machines located at the main office or
at a branch of a depository institution authorized to transact business in this state.
(4) For purposes of this section, "discontinue" or "discontinuing" means an interruption in
the operation of an automated teller machine of 30 days or more.
Section 10. Repealer.
This act repeals:
Section 7-16-2, Definitions.
Section 7-16-3, Application of act -- Restrictions on use of facilities.
Section 7-16-9, Powers of financial institutions establishing or sharing consumer funds
Section 7-16-10, Contractual waiver of Uniform Commercial Code provisions.
Section 7-16-19, Installation and operation of automated teller machine -- Notice --
Approval or disapproval -- Restrictions.
Section 11. Effective date.
This act takes effect on July 1, 1997.
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