Out-of-State Federal Bank Governed By Massachusetts General Law 167, Section 43A - Q1 2000

By the Division of Banks

An out of state chartered bank authorized to act as a foreign fiduciary in Massachusetts was merged with and into a newly created federal savings bank and as a result the former state-chartered bank no longer exists. The issue is whether the newly created federally-chartered bank has the fiduciary power granted to the out-of-state chartered institution and whether this new entity is still required to fulfill its reporting and examination responsibilities to the Commonwealth.

Massachusetts General Laws chapter 167, section 43A provides "The commissioner may, subject to such conditions as he may prescribe, grant to an out-of-state bank or an out-of-state federal bank a certificate authorizing it to act in a fiduciary capacity under the provisions, so far as applicable, of chapter 167G..." (emphasis supplied).

It is the Division's position that under said section 43A, an out-of-state federal bank, would remain subject to the provisions of said section 43A, including the agreement originally executed by the state-chartered bank. Therefore the federally chartered bank would have no reporting requirements under 43A. In addition, based in the information regarding the merger, it is the position of the Division that the federally chartered bank may continue to act as a foreign fiduciary in Massachusetts with the powers granted to the out-of-state-chartered bank in the Certificate of Authority issued by the Commissioner, as that power inures to the surviving entity.