Article 3. Liquidation By The Commissioner of California Financial Code >> Division 6. >> Chapter 6. >> Article 3.

If at any time after taking possession of the property and business of a licensee it shall appear to the commissioner that it would be futile to proceed as conservator with the conduct of the business of such person he may apply to the superior court of the county in which is located the principal office of such person in this State for an order to liquidate and wind up the business of said person. Upon a full hearing of such application, the court may make an order directing the winding up and liquidation of the business of such person by the commissioner, as liquidator.

Whenever the commissioner has taken possession of the property and business of a licensee he may petition the superior court for the appointment of a receiver to liquidate the affairs of the licensee.

The commissioner may appoint one or more special deputies to assist in the duties of liquidation and distribution under his direction and may also employ such special legal counsel, accountants, and assistants as may be needed and required and fix their salaries and compensation. All such salaries and compensation with other reasonable and necessary expenses as may be incurred in the liquidation shall be paid by the commissioner from the funds of the licensee in his hands. Such expenses shall include, among other things, that part of the salary of the commissioner and of his deputies, auditors, accountants, appraisers and other assistants, and that part of the general expenses of the commissioner's office, as fairly represent, in the opinion of the commissioner, the proportion properly attributable to such liquidation.

In liquidating the affairs of a licensee the commissioner may:
  (a) Collect all money due to, and claims of, the licensee and give receipt therefor.
  (b) Approve and pay all just and equitable claims.
  (c) Commence and prosecute all actions and proceedings necessary to enforce liquidation.
  (d) Compound bad or doubtful debts or claims, borrow money, sell, convey, or transfer real or personal property, on order of the superior court of the county in this State in which the principal office of the licensee is located. The order shall be made after hearing and on such notice as the court prescribes.

After the issuance of an order of liquidation under Section 17635, any of the following transactions occurring within four months prior to the application for such order shall be voidable by the commissioner if such transaction has the effect of giving to or enabling any creditor of the licensee to obtain a preference over any other creditor, or to obtain a greater percentage of his debt than any other creditor:
  (a) A transfer of property of the licensee.
  (b) The creation of a lien upon the property of the licensee.
  (c) The suffering of a judgment against such person.

If the commissioner is in possession of the business, property, and assets of a licensee, whether or not he is liquidating the affairs of such licensee, the commissioner may:
  (a) Apply to the superior court of the county in this State in which the principal office of the licensee is located for an order confirming any action taken by the commissioner, or authorizing the commissioner to do any act or execute any instrument not expressly authorized by this part. The order shall be given after a hearing on such notice as the court prescribes.
  (b) Pay and discharge any secured claims against the licensee, whether or not such claims have been presented for payment. No secured claim shall be paid in an amount larger than the value of the security at the time of payment.

Claims for damages resulting from the disaffirmance of an executory contract or lease by the commissioner may be filed and allowed. No claim of a landlord for damages resulting from the disaffirmance of an unexpired lease of real property or under any covenant of such lease shall be allowed in an amount exceeding the rent reserved by the lease, without acceleration, for the year succeeding the date of the surrender of the premises plus the amount of any unpaid accrued rent without acceleration. Any such claim must be filed within 30 days of the date of such disaffirmance.

When the commissioner determines to liquidate a licensee, he shall cause an inventory of all the assets of the licensee to be made in duplicate, file the original with the court, and file the duplicate in his office.

When the commissioner determines to liquidate a licensee he shall cause notice to be given by publication once a week for four successive weeks in some newspaper of general circulation published at or near the principal place of business in this State of such licensee, to all persons having claims against the licensee as creditors, investors, or otherwise, requiring them to present and file their claims and make legal proof thereof at a place and within a time designated in such publication. The time shall be not less than six months after the first publication. Within 10 days after the first publication the commissioner shall cause a copy of such notice to be mailed to all persons whose names appear of record upon the licensee's books as creditors, or as parties to an uncompleted escrow transaction.

All claims, demands, or causes of action of creditors, and persons other than the parties to an escrow transaction against the licensee or against any property owned or held by it in trust or otherwise, must be presented to the commissioner in writing, verified by the claimant, or someone in his behalf, within the period specified in the notice for the presentation of claims, whether or not an action is pending to enforce any such claim or demand. The commissioner shall not approve any claim not so presented, and any such claim, demand or cause of action not so presented is forever barred.

Upon the expiration of the time fixed for the presentation of claims, the commissioner shall prepare in duplicate a full and complete schedule of all claims presented, specifying by classes those that have been approved and those that have been disapproved and shall file the original with the court and the duplicate in his office.

Not later than five days after the time of filing the schedule of claims with the court, written notice shall be mailed to all claimants whose claims have been rejected. Action to enforce the payment of or to establish any rejected claim must be brought and service had within four months from and after the date of filing of the schedule of claims with the proper court or all such actions are forever barred.

Regardless of any law of this state, the judges of the superior court of the county in this state in which the principal office of the licensee is located may, whenever the judges deem it necessary or advisable, hold hearings relating to the sale, exchange, or other disposition of any real property or any personal property of the licensee regardless of the location of the property. The hearings shall be held at the county seat of any county in this state or at the places in the home county of the superior court at which sessions are held.

If it appears improbable that anything can be realized from any property of the licensee and that the cost of maintaining, preserving, or protecting the property would probably be lost, the court may direct the commissioner to abandon the property.

For the purpose of executing and performing any of the powers and duties conferred upon him by this article, the commissioner may in the name of the licensee or in his own name prosecute and defend any suit or other legal proceeding and may in the name of the licensee or in his own name as commissioner execute, acknowledge, and deliver any and all deeds, assignments, releases, requests for reconveyance, and other instruments necessary and proper to effectuate any sale of real or personal property or other transaction in connection with the liquidation of the licensee. Any deed, assignment, release, request for reconveyance, or other instrument executed pursuant to this section is valid and effectual for all purposes as though it was executed by the officers of such licensee with the authority of its board of directors.

If any real property of the licensee sold by the commissioner is located in a county other than the county in which the application to the court for permission to sell the property was made, the commissioner shall cause a certified copy of the order authorizing or ratifying such sale to be recorded in the office of the recorder of the county in which the real property is located.

When the commissioner has (a) fully liquidated all claims other than claims of stockholders, and (b) made due provision for any and all known but unclaimed liabilities, excepting claims of stockholders, and (c) paid all expenses of liquidation, then upon the written request of the holders of a majority of the stock of such licensee he shall deliver to the licensee or its trustees any surplus that then remains in his hands, together with all the records and effects. The licensee or its trustees shall have title to such surplus, records, and effects free from any claim of the commissioner.

Upon the payment of a final dividend in liquidation, the commissioner shall prepare and file with the court a full and final statement of the liquidation, including a summary of the receipts and disbursements, and a duplicate of such statement shall be filed in the office of the commissioner. After hearing and approval by the court, the liquidation shall be closed.

In making its order approving the commissioner's final statement of the liquidation of a licensee, the court shall determine the amounts of the liquidating dividends to which claimants and investors are entitled but that then remain unpaid or unclaimed in the hands of the commissioner. The order of the court shall direct the commissioner to deposit the amounts with the Controller. All amounts so deposited shall be deemed to be deposited with the Controller under Chapter 7 (commencing with Section 1500) of Title 10 of Part 3 of the Code of Civil Procedure, and may be recovered in the manner prescribed in that chapter.

The order of the court approving the final statement on liquidation shall provide for the destruction or other disposition of the books and records of the licensee or pertaining to the liquidation of the licensee, and the court may declare the licensee dissolved as a corporation.