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      RS 6:333     

  

§333. Disclosure of financial records; reimbursement of costs

            A. As used in this Section:

            (1) "Affiliate" means a bank's holding company, any subsidiary of a bank or its holding company, any insurer of or surety for the bank, or any attorney, accountant, auditor, or other agent for or of the bank or an affiliate. An affiliate shall include any person who performs services for or functions on behalf of the bank pursuant to a contractual agreement obligating such person to maintain the confidentiality of information received from the bank in the performance of its contract.

            (2) "Bank" means any state bank, national bank, or any entity organized to engage in the business of banking pursuant to the laws of any other state or the District of Columbia domiciled in, having its principal place of business in, or engaged in the business of banking in this state. "Bank" shall also mean a savings bank, a savings and loan association, a company issuing credit cards, or any other business offering credit.

            (3) "Consumer" means an individual who obtains or has obtained a financial product or service from a bank that is to be used primarily for personal, family, or household purposes, or for that individual's legal representative.

            (4) "Customer" means any person who has transacted, or is transacting, any business with a bank or who has used, or is using, any service of a bank, including but not limited to the following: any person who was or is indebted or otherwise obligated to the bank, whether directly or indirectly; any person who has provided, or is providing, any collateral security for any indebtedness or other obligation to the bank; any person who has had, or currently has, any funds on deposit at the bank; or any person for whom the bank is acting or has acted as a fiduciary.

            (5) "Disclosure" or "disclose" means and includes producing, providing access to, providing copies of, or giving testimony or making other oral or written statements pertaining to financial records.

            (6) "Disclosure demand" means a civil or criminal judicial, administrative, legislative, military courts-martial, juvenile, grand jury, arbitration, or medical review panel subpoena, summons, or order or notice of deposition, interrogatories, request for production or inspection of documents, request for admissions, or other discovery request lawfully directed or propounded to a bank or any affiliate.

            (7) "Financial record" means an original, duplicate, or copy of any memorandum, writing, datum, compilation, entry, print, analysis, review, committee minute, internal or external audit report, or other document or record held by, or otherwise in the possession or under the control of, a bank which pertains in any way to a past or current customer or to such customer's past or current relationship with the bank and all information contained therein or derived therefrom. Financial record shall not include "publicly available information".

            (8) "Government authority" means an agency, department, or commission of the United States or of any state thereof, or any officer, employee, or agent thereof.

            (9) "Person" means any individual, partnership, limited partnership, unincorporated association, joint stock company, corporation, limited liability company, limited liability partnership, state, city, county, municipality, or other governmental subdivision and their respective employees, boards, agencies, and departments.

            (10) "Publicly available information" means any information that a bank or any affiliate has a reasonable basis to believe is lawfully made available to the general public from any of the following:

            (a) Federal, state, or local government records.

            (b) Widely distributed media.

            (c) Disclosures to the general public that are required to be made by federal, state, or local law.

            (11) "Return date" means the date on which financial records are to be produced or disclosed, either as set forth in a disclosure demand or as such date may be extended by appropriate order or by agreement between the bank and the person requesting such financial records.

            (12) "Supervisory agency" means any entity which has statutory authority to examine the financial condition, business operations, records, or transactions of a bank, including but not limited to the following:

            (a) The Federal Deposit Insurance Corporation.

            (b) The Board of Governors of the Federal Reserve System.

            (c) The Comptroller of the Currency.

            (d) The Securities and Exchange Commission.

            (e) The secretary of the United States Treasury with respect to the Bank Secrecy Act.

            (f) The office of financial institutions.

            (g) The federal Office of Thrift Supervision.

            B. Notwithstanding any other provision of law to the contrary, except R.S. 9:151 et seq. and 3854(B)(2), R.S. 13:3921 et seq., Code of Civil Procedure Article 2411 et seq., R.S. 46:236.1.4, and R.S. 47:1676(D)(2) and 1677, no bank or its affiliate shall disclose any financial records to any person other than the customer to whom the financial records pertain, unless such financial records are disclosed:

            (1) In response to a disclosure demand in accordance with the provisions of Subsection C of this Section.

            (2) Pursuant to a written request or authorization for disclosure or waiver which meets the requirements of Subsection E of this Section.

            (3) As otherwise permitted or allowed by this Section.

            C. A bank may disclose financial records pursuant to a disclosure demand if each of the following conditions are met:

            (1) The disclosure demand is served on the bank's president, one of the bank's registered agents for service of process, or, if applicable, on the bank's counsel of record unless such service on such individuals is expressly waived by the bank.

            (2) Prior to the return date, the person requesting the issuance of the disclosure demand furnishes the bank with an affidavit certifying both of the following:

            (a) That such disclosure demand, or a certified copy thereof, has also been personally served upon each customer named in the disclosure demand to whom the financial records being sought pertain or upon such customer's counsel of record in accordance with Subsection D of this Section.

            (b) That such service was made at least fifteen business days prior to the return date.

            (3) The bank has not received written notice that a customer to whom the financial records pertain has taken legal action to enjoin or otherwise restrain the release of the financial records.

            D. Service of a disclosure demand, or certified copy thereof, on any customer shall be made by utilizing any applicable method for service of citation on said customer authorized by the Code of Civil Procedure, including Articles 1231 through 1265. However, any such service may be made by an individual who is not a party and who is at least eighteen years of age, rather than by the sheriff. Service on any customer's counsel of record shall be made by personal service in the office of such counsel of record on either his secretary, as defined in Code of Civil Procedure Article 1235(C), or any partner or office associate of such counsel of record. Service on a customer or on his counsel of record may be made within or without the state of Louisiana.

            E. A customer, or an attorney at law representing such customer, may authorize disclosure of the customer's financial records by providing the bank with a signed and dated statement which authorizes such disclosure, specifies the person to whom such financial records may be disclosed, and reasonably identifies the financial records which are authorized to be disclosed. Any such statement signed by an attorney at law stating or certifying that he represents a customer may, at the bank's discretion, be relied upon and shall constitute proper authority for disclosure pursuant to this Section.

            F. The following disclosures by a bank or any affiliate are hereby specifically authorized and, except as otherwise provided in this Subsection, nothing in this Section shall prohibit, restrict, or otherwise apply to:

            (1) The disclosure by a bank or any affiliate of any financial record to any person as an incident necessary to: obtaining or perfecting a guaranty, mortgage, lien, security interest, or other encumbrance; proving a claim in bankruptcy, otherwise collecting on, or enforcing its rights with respect to a debt owing either to the bank itself or to it in its role as a fiduciary; or procuring, making a claim on, or otherwise enforcing or exercising its rights with respect to any insurance pertaining or related to a debt owing either to the bank itself or to it in its role as a fiduciary, including single interest insurance.

            (2) The disclosure by a bank or any affiliate of any financial record to a supervisory agency in connection with the exercise of the supervisory agency's supervisory, regulatory, or monetary functions with respect to the bank or any affiliate of the bank.

            (3) The disclosure by a bank of any financial record to any affiliate of the bank.

            (4) The disclosure by a bank or any affiliate of financial records to any person to whom the bank has sold or participated, or may sell or may participate, in all or any part of one or more customer loans or other indebtedness or deposits to which such financial records pertain or to any person to whom the bank has granted, or may grant, one or more assignments, liens, security interests, or other encumbrances in or affecting one or more customer loans or other indebtedness to which such financial records pertain.

            (5) The disclosure by a bank or any affiliate, after the execution of a confidentiality agreement between the bank or its affiliate and the person to whom the financial records are to be disclosed, of financial records to any of the following:

            (a) Potential investors in the bank or any affiliate and their agents, in the case of a nonpublic offering, or investment banking firms and their agents, in the case of a public offering, in connection with an offering of debt or equity securities of the bank or any affiliate.

            (b) Holders of debt or equity securities issued by the bank or by any affiliate, and the agents of such holders, to the extent that such disclosure is required by law or by the terms of one or more agreements or instruments pertaining to such securities.

            (c) Any person and its agents in connection with the consideration or completion of mergers, consolidations, acquisitions, or sales of all or substantially all of the assets of the bank or of any affiliate.

            (6) The disclosure by a bank or any affiliate of financial records to a government authority or law enforcement agency or department in connection with a known or suspected criminal act against the bank or involving a bank officer or employee.

            (7) The disclosure by a bank or any affiliate of general credit information relating to the existence of accounts, promptness of payments, limits of credit, or other general information normally furnished to a credit reporting or rating agency or to another financial institution, including but not limited to another bank or savings and loan association, or to any other person who has made a request for the information and who has a legitimate business need for it in connection with a transaction or proposed transaction between the customer and such person. Unless the request is prompted by the customer, notice of the written request shall be given to the customer.

            (8) The disclosure by a bank or any affiliate of financial records to any person in connection with any authorization or approval of a specific extension of credit directly or indirectly by a credit card company or other person offering or extending credit or the exchange of information between the bank and such person as to the bank's experience with the customer.

            (9) The disclosure by a bank or any affiliate of financial records to any person having any ownership or joint interest in an account to which the financial records pertain, any person directly or indirectly obligated to the bank on an extension of credit to which the financial records pertain, or any person who has granted a mortgage, lien, security interest, or other encumbrance in favor of the bank or has otherwise provided security to the bank to secure an extension of credit to which the financial records pertain.

            (10) The disclosure by a bank or any affiliate of financial records to any legal representative, surviving spouse, heir, or legatee of a customer or to an attorney at law representing the same upon the bank's receiving written notice of the customer's death, interdiction, or other incapacity and upon the bank's receiving evidence satisfactory to it of proper authority which, in the case of a surviving spouse, heir, or legatee of a decedent, may be by affidavit executed by such person attesting to such relationship with the decedent.

            (11) The disclosure by a bank or any affiliate of financial records in situations governed by, pursuant to, and in accordance with the provisions of 12 U.S.C. 3401 et seq., 15 U.S.C. 6801 et seq., or pursuant to a search warrant issued in accordance with Title IV of the Code of Criminal Procedure.

            (12) The disclosure by a bank or any affiliate of financial records in situations governed by, pursuant to, and in accordance with the provisions of Title 31 of the United States Code.

            (13) The disclosure by a bank or any affiliate of financial records pursuant to a subpoena or court order issued in connection with proceedings before a federal or state grand jury in accordance with applicable federal or state law, rule, or regulation, or subpoena or court order issued in connection with a state criminal investigation pursuant to Code of Criminal Procedure Article 66.

            (14) The disclosure by a bank or any affiliate of data match information on an individual to the secretary of the Department of Children and Family Services, or his designee in the office of children and family services, child support enforcement section, for use in attempting to establish, modify, or enforce a child support obligation of such individual. Such disclosure to the department shall be limited to the name, record address, social security or taxpayer identification number, and an average daily account balance for the most recent thirty-day period, of a noncustodial parent who maintains an account at such institution and who owes past-due support as identified by the state by name and social security or taxpayer identification number. The disclosure authorization provided for in this Paragraph shall apply to all co-owners listed on the applicable account.

            (15) The disclosure by a bank or any affiliate of publicly available information.

            (16) The disclosure by a federally insured financial institution or any of its affiliates of financial records pursuant to R.S. 6:332.

            (17) A bank that makes agriculture loans that communicates information, either orally or in writing, in accordance with R.S. 3:3419.1.

            (18) The disclosure by a bank or any of its subsidiaries or affiliates of data match information on an account owner to the secretary of the Department of Revenue, and his designee in the office of debt recovery, for use in attempting to enforce a final tax or non-tax assessment or judgment against such individual or entity. Such disclosure to the department or office shall be limited to the name, record address, social security or taxpayer identification number, other identifying information, and an average daily account balance for the most recent thirty-day period, of a state tax or state non-tax debtor who maintains an account or is a customer at such institution and who purportedly owes a final state tax or state non-tax assessment or judgment. The disclosure authorization provided for in this Paragraph shall apply to all co-owners listed on the applicable account.

            G. A bank shall be given a reasonable period of time prior to the return date, and in no event less than fifteen business days prior thereto, in which to complete the action necessary to disclose financial records which are the subject of a request. Whether the bank is a party to litigation or not, prior to making any disclosure and notwithstanding any contrary provisions of this Section, R.S. 13:4521, Code of Civil Procedure Article 2411, or of any other law, the bank shall be reimbursed by the requesting person for the reasonable fees and costs incurred or to be incurred by the bank in the course of compliance with the request, including but not limited to document reproduction costs, research and processing costs, personnel costs, and travel expenses, whether any or all such costs are internal costs or are costs incurred by the bank in favor of a person acting on behalf of or performing services for the bank. If the bank and the requesting party disagree as to the amount of the fees and costs to be reimbursed to the bank under this Section, the bank need not produce the financial records, until the court or other appropriate body issuing the disclosure demand has fixed the amount to be paid to the bank upon a motion of any party or the bank. The court or other appropriate body, in its discretion, may order a contradictory hearing to fix the fees and costs to be reimbursed.

            H.(1) Unless the disclosure demand specifically provides otherwise, it shall be sufficient compliance therewith if the bank, on or before the return date or the first business day thereafter if the return date is not a business day for the bank, either deposits with an overnight courier service or sends by U.S. registered or certified mail copies of the financial records to be disclosed. When the financial records are disclosed in accordance with the provisions of this Subsection, the copies of said financial records shall be accompanied by a written certificate executed by a representative of the bank in substantially the following form:

"Date:_______________

I, ______________________, a representative of ___________________________ (Bank) do hereby certify that the document(s) attached to or accompanying this certificate, consisting of ______ page(s) is (are each) a true and correct copy of the original records represented thereby.

____________________________

Name

____________________________

Title

____________________________

Address

____________________________

Telephone Number"

            (2) When financial records are disclosed in accordance with the provisions of this Subsection, disclosure occurs when the financial records are deposited with the overnight courier service or in the U.S. mail, as applicable.

            I.(1) No bank or its affiliates, including any of its directors, officers, employees, attorneys, accountants, or other agents, shall be civilly or criminally liable to any person, including any customer, for any disclosure of publicly available information or for any disclosure of financial records made in compliance with or as authorized by the provisions of this Section. However, if the bank actually receives written notice that the customer has taken legal action to enjoin or otherwise restrain the disclosure of financial records, and the bank receives such written notice sufficiently in advance of disclosure so as to allow the bank a reasonable time to act on said notice, then the bank shall postpone disclosure of such financial records until such time as it is provided with satisfactory evidence that the disclosure of the financial records by it is permitted.

            (2) Notwithstanding any law to the contrary, all financial records prepared by or for the bank in connection with the bank's evaluation, analysis, or review of any loan or other extension of credit or of any collateral security therefor or reserve therefor shall be confidential and shall not be discoverable or admissible in evidence in any civil action pertaining to or arising out of any such loan, other extension of credit, or the collateral security therefor.

            Acts 1984, No. 719, §1, eff. Jan. 1, 1985; Acts 1989, No. 779, §1, eff. July 9, 1989; Acts 1990, No. 694, §1, eff. July 20, 1990; Acts 1990, No. 904, §1, eff. July 25, 1990; Acts 1991, No. 694, §1; Acts 1995, No. 709, §1; Acts 1995, No. 1094, §1; Acts 1997, No. 44, §1; Acts 1997, No. 1278, §1, eff. July 1, 1997; Acts 2001, No. 380, §1; Acts 2003, No. 639, §1, eff. June 27, 2003; Acts 2005, No. 249, §1; Acts 2006, No. 259, §1; Acts 2008, No. 532, §2; Acts 2010, No. 860, §2; Acts 2012, No. 255, §1; Acts 2013, No. 399, §1, eff. June 17, 2013; Acts 2014, No. 356, §3; Acts 2015, No. 215, §1; Acts 2019, No. 34, §1.

NOTE: Section 2 of Acts 2005, No. 249, provides that the Act shall become effective six months following adoption of a final rule by the Louisiana Supreme Court requiring attorneys to utilize, in whole or in part, the overdraft notification services provided in R.S. 6:332 as enacted by the Act. (Act 249 enacted Paragraph (F)(16))



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