Appeal of "Needs to Improve" CRA Rating- Lending to LMI Individuals (First Quarter 1999)
A small bank filed an appeal concerning its Community Reinvestment Act (CRA) rating of "needs to improve record of meeting community credit needs" (NTI). During the evaluation period, the bank's total assets almost doubled, due mostly to a unique lending arrangement with a large local corporation. The corporation solicited a bid and subsequently selected the bank as its preferred lender for making stock-purchase loans for its eligible employees. The stock offerings are at the sole discretion of the corporation, with the bank's role as making stock-secured loans to corporation employees. Lending under this program has been so substantial that a significant majority of the loans had to be participated with other financial institutions. Almost all of these loans were made to middle- and upper-income individuals.
The bank's assessment area contains no low- or moderate-income census tracts. Low- and moderate-income (LMI) individuals and families represent 20 percent of the population within the assessment area. Additionally, the area is experiencing a high level of population growth with the majority of the growth in middle- and upper-income families.
In reviewing the bank's lending pattern during the evaluation period, the examiners concluded that the bank's record of lending to LMI borrowers was poor and did not reasonably reflect the assessment area demographics. Of the loan products sampled, very few of the number and dollar amount were to LMI borrowers. The primary reason for this was the substantial volume of stock-purchase loans. The examiners concluded that the bank's performance under the remaining small bank test criteria was reasonable.
In its appeal, the bank contends that its performance cannot be fairly evaluated using the criteria in 12 CFR Part 25, Appendix A, of the CRA Regulation due to the unusual circumstances created by the stock-purchase loan program. The bank also contends that the percentage of LMI families within the assessment area, and the number of stock-purchase loans made, caused the examiners to conclude that the level of lending to LMI borrowers was very poor and loan originations did not reasonably reflect assessment area demographics. The bank claims these conclusions misrepresent the facts.
To fairly evaluate the bank's lending across income levels, the bank believes that OCC should exclude the stock-purchase loans from the analysis. While the examiners cited the stock-purchase program as the bank's primary product line, the bank contends that it is not a product line because it cannot be marketed to the general public nor can the public purchase the stock. The bank considers its major product lines to be consumer loans (secondary market real estate, Home Mortgage Disclosure Act (HMDA) reportable, home equity, and auto loans).
The bank states that its consumer lending has not been affected by the stock-purchase program. Consumer lending to LMI borrowers represented 25 percent of the loans examiners sampled. This lending pattern exceeds the 20 percent level of LMI families within the bank's assessment area. The bank states that due to the high cost of housing in the assessment area, a large number of homes are unaffordable to LMI families. Yet the bank claims that 16 percent of the loans in the examiners' loan sample were secondary market, HMDA reportable, and home equity loans to LMI borrowers.
Since there was no dispute with the case facts, the issue to resolve was a determination on how the stock-secured loans should be treated in the analysis of lending to borrowers of different income levels.
The CRA Regulation, at 12 CFR 25.26, states that one of the small bank performance criteria is "the bank's record of lending to and, as appropriate, engaging in other lending-related activities for borrowers of different income levels." Part 25.21(b) of the regulation indicates that the OCC applies the small bank performance standards in the context of a bank's assessment area:
- lending, investment, and service opportunities;
- product offerings and business strategy;
- capacity and constraints; and
- past performance.
The regulation's preamble provides some clarification of this part by adding that examiners consider this data in order to understand the context in which the bank's performance should be evaluated. Additionally, the regulation and CRA examination procedures focus examiners' attention on residential real estate, small business, small farm, community development, and to a much lesser degree consumer loans, not commercial loans. While the regulation does not require that lending match assessment area demographics, examination procedures direct examiners to compare the ratio of loans made to LMI families to the percentage of LMI families within the assessment area.
Based on the bank's business strategy, product offerings, and the lack of previous CRA issues, the stock-purchase loans should be considered in the evaluation of the bank's CRA performance. However, this arrangement is also an appropriate "performance context" issue. Other than the stock-purchase loans, the data reviewed indicated that the bank's other lending activities during this evaluation period was consistent with past evaluation periods. The bank's real-estate-related lending had also increased over past periods.
The bank's real-estate-related loans and total consumer lending to LMI individuals and families provide a reasonable distribution by borrower income level. Since the examiners found the bank's performance reasonable in the remaining performance criteria, the rating was upgraded to "satisfactory."
However, because of the bank's growth strategy, the board was strongly encouraged to reconsider the size of its assessment area. It was determined that while the regulation does grant some flexibility in designating an assessment area smaller than a metropolitan statistical area (MSA) or political subdivision, the bank's strong capital, earnings, and lending record support its ability to reasonably serve a larger area than its current assessment area boundaries.
Appeal of "Needs to Improve" CRA Rating- Violations of ECOA -(First Quarter 1999)
A designated limited purpose bank filed an appeal concerning its composite CRA rating of "needs to improve record of meeting community credit needs" (NTI). The bank received a "satisfactory" rating under the community development test, but the overall rating was down-graded to NTI based on an alleged substantive violation of the Equal Credit Opportunity Act (ECOA) and Regulation B. In particular, the bank claims that the OCC examiners did not appropriately credit its subsequent efforts, during the on-site examination and shortly thereafter, to address the fair lending issues raised during a concurrent fair lending examination in determining its CRA performance rating.
Examiners found differences in the treatment of Spanish-language and English-language applicants/cardholders in one of the bank's designer label credit cards and determined that a reason to believe a substantive violation of ECOA had occurred. The underlying cause of the alleged violation was deficient internal control systems. After a thorough review of the alleged fair lending violation, the OCC referred the case to the U.S. Department of Justice for further investigation. The bank appealed that decision, but the ombudsman's office concluded that there was sufficient information to support the examination findings. Subsequently, the OCC referred the matter to the Department of Justice.
While the bank maintains that it did not violate the ECOA or Regulation B, it acted quickly and initiated a number of prospective and retrospective actions to address the examiner's fair lending findings. After discussions with the examiners, the bank began implementing actions that were largely completed during or shortly after the completion of the fair lending examination. Regarding retrospective actions, the bank voluntarily:
- merged the application handling for Spanish-language and English-language programs under one underwriting process;
- reviewed all Spanish-language applicants denied credit to determine if they would have been approved under the English-language program and then offered them credit;
- increased credit lines of Spanish-language applicants who had received lower lines than similarly situated English-language applicants; and
- offered a special balance consolidation promotion to Spanish-language cardholders who had previously not received such offers.
Prospectively, the bank voluntarily:
- conducted fair lending training for pertinent employees;
- instituted a policy that all new employees in the risk,
- marketing, and credit departments receive fair lending training;
- mandated fair lending recertification of employees annually;
- improved internal controls and oversight systems;
- established procedures for legal and compliance program reviews; and
- improved audit review of fair lending issues.
Evidence of discriminatory or other illegal credit practices adversely affects the OCC's evaluation of a bank's performance. In determining the effect on the bank's assigned rating, the OCC considers the nature and extent of the evidence, the policies and procedures that the bank has in place to prevent discriminatory or other illegal credit practices, any corrective action that the bank has taken or has committed to take, particularly voluntary corrective action resulting from self-assessment, and other relevant information.
At issue is whether the examiners appropriately considered the bank's corrective actions in arriving at the bank's CRA performance rating.
The "needs to improve" rating was upheld and the examiners appropriately considered the bank's efforts to address the fair lending violation in arriving at that rating. However, the bank's substantial action to correct the violation did not mitigate the other factors OCC considers in such cases. The extent of the evidence regarding the treatment of individuals under the Spanish-language product was material, supporting a "reason to believe" that a pattern or practice of disparate treatment existed. Furthermore, the bank, at the time, did not have sufficient internal controls, policies, and procedures in place to prevent such practices. The ombudsman acknowledged the merits of the bank's actions to address this issue. The benefit of such should positively affect the bank's CRA performance during future evaluation periods.