DESTRUCTION OF SAVINGS BANK MORTGAGE LOAN RECORDS

DESTRUCTION OF SAVINGS BANK MORTGAGE LOAN RECORDS

The destruction of application forms, appraisals, and written reports in connection with a loan subsequently paid, is a violation of § 3381-20 Rem. Supp. 1945 and punishable as a gross misdemeanor.

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                                                               September 7, 1950

Honorable David M. Roderick
Representative for 35th District
901 ‑ 6th Avenue, Apt. # 404
Seattle 4, Washington                                                                                                              Cite as:  AGO 49-51 No. 330

Dear Sir:

            We have your request of August 31, 1950, for an opinion from this office on the following questions:

            1.         Is the destruction of application forms, appraisals and written reports in connection with a loan subsequently paid, a violation of 1945 Rem. Supp., § 3381-20?

            2.         If it is such a violation, is it governed by Rem. Rev. Stat., § 3380, or any other statutory provision?

            Our conclusions may be summarized as follows:

            1. The destruction of application forms, appraisals, and written reports in connection with mortgage loans subsequently paid off, is a violation of § 3381-20 Rem. Supp. 1945.

            2. Such a violation is governed by Rem. Rev. Stat., § 3380.

             [[Orig. Op. Page 2]]

                                                                     ANALYSIS

            Section 4, chapter 228, Laws of 1945 (§ 3381-20 Rem. Supp. 1945) provides in part as follows:

            "No mortgage loan, or renewal or extension thereof for a period of more than one year, shall be made except upon written application showing the date, name of the applicant, the amount of loan requested, and the security offered, nor except upon the written report of at least two members of the board of investment of the bank certifying on such application according to their best judgment the value of the property to be mortgaged; and the application and written report thereon shall be filed and preserved with the savings bank records."

            In an opinion of December 8, 1947, directed to the Prosecuting Attorney of King County, we held that the destruction of such forms, appraisals, and reports would constitute a violation of the above cited section.  We remain in accord with that holding.

            Your next inquiry is whether the penalty for violation of § 3381-20 Rem. Supp. 1945 is governed by Rem. Rev. Stat. § 3380 which provides as follows:

            "Any person who shall do anything forbidden by this act for which a penalty is not provided in this act, or in some other law of the state, shall be guilty of a gross misdemeanor and be punished accordingly."

            It is clear that if § 3381-20 Rem. Supp. 1945 comes within the meaning of the term "this act," as used in Rem. Rev. Stat. § 3380, a violation of the former section amounts to a gross misdemeanor, unless Rem. Rev. Stat. § 3380 has been repealed.  An examination of the legislative history of the statutes  [[Orig. Op. Page 3]] involved indicates that Rem. Rev. Stat. § 3380 has not been repealed, and this section provides the penalty for a violation of § 3381-20 Rem. Supp. 1945.

            Chapter 175, Laws of 1915, authorized the creation of Mutual Savings Banks, defined their powers and duties, and prescribed penalties for violations thereof.  Chapter 74, Laws of 1929, re‑enacted [[reenacted]], though not specifically, the investment provisions of chapter 175, Laws of 1915, including the requirement that the applications for mortgage loans and reports thereon be preserved with the savings bank records.  Section 3381-20 Rem. Supp. 1945 is an amendment of § 20, chapter 4, of Laws of 1929, as amended by section 13, chapter 95, Laws of 1937.  While the investment provisions of chapter 175, Laws of 1915, have subsequently been revised and amended, the provisions of that chapter relating to incorporation and the general penalty clause have not been specifically repealed, and have not been revised or amended.

            Inasmuch as a later act does not operate to repeal an earlier one, unless the later act completely covers the entire subject matter of the earlier act, or unless the two acts are so clearly inconsistent with each other that they cannot be reconciled, there is no reason to assume that the penalty clause of the original act has been repealed by implication, particularly since the legislature, by chapter 132, Laws of 1931, has defined certain specific offenses and the penalties therefor.

            For these reasons, it is the opinion of this office that Rem. Rev. Stat. § 3380 provides the penalty for a violation of § 3381-20 Rem. Supp. 1945 and that one who destroys records relative to mortgage loans applications is guilty of a gross misdemeanor.

Very truly yours,

SMITH TROY
Attorney General

GEORGE H. HOLT
Chief Assistant Attorney General