- ICBA will continue to warn regulators about overly conservative safety and soundness and compliance exams and the general “gotcha” mentality of examiners. Overall, there needs to be a more flexible supervisory approach to community banking.
- ICBA will resist efforts by the regulators to impose hard concentration limits on any type of lending.
- Examiners should exercise more flexibility with regard to those banking institutions that have been deferring TruPS dividends for up to five years to preserve capital.
- Community banks are concerned that certain restrictions or practices that apply to the largest banks will come down to their level as “best practices.” Examiners should not apply large bank practices to community banks that operate according to a different, less complex, and more conservative business model.
- Community banks that have proper and balanced controls in place should be able to provide payment processing services for customers engaged in legal, higher-risk activities such as payday lending. It is beyond the scope of the supervisory process to prohibit or discourage community banks from providing these services. ICBA opposes a supervisory process that places community banks at a competitive disadvantage to larger institutions due to inconsistent oversight.
- ICBA supports legislation that would reform the appellate process for agency decisions or actions and allow bankers to appeal to an independent council or ombudsman office an adverse determination made by an examiner in an exam report.
- In some cases of bank failure, the FDIC, in its capacity as receiver, has gone too far in its attempts to recover from directors and officers on the grounds of negligence or gross negligence. The business judgment rule in most states should protect bank directors and officers from business decisions made in the ordinary course of business.
Community Banks and Zealous Examiners. ICBA strongly advocates for an environment where regulators and financial institutions work together to help consumers and small businesses have access to financial products and services. We do not support an atmosphere of “gotcha” rulemaking, where community banks are exposed to legal and compliance risk for minor, inadvertent calculations or documentation errors. There should be latitude for informal dialogue. Not every minor suggestion made during an exam should be formally recorded as a “Matter Requiring Attention.” Greater latitude and a more flexible approach would allow for less guarded interactions and a more productive partnership between bank management and examiners. Additional concerns include:
- The broadening scope of compliance exams with a wide range of loans and disclosures subject to scrutiny under fair lending, Unfair and Deceptive Acts and Practices (UDAP) and Truth-in-Lending violations.
- Regulatory agreements that limit a bank’s ability to declare dividends harm shareholders and make it more difficult for the bank to raise capital.
- Hard concentration limits on any type of lending, including commercial real estate (CRE), agricultural, or residential mortgage lending will reduce credit availability and harm economic growth.
- Examiners should exercise more flexibility towards banks that have been deferring their TruPS dividends for up to five years to preserve capital. In some instances, the inflexibility of the regulators is forcing bank holding companies into bankruptcy and the forced sale of banks at fire-sale prices. This will only lead to greater consolidation of the industry.
Applying “Best Practices” to Community Banks. Community banks are concerned that certain restrictions or practices that apply to the largest banks will come down to their level through the examination process as encouraged or expected “best practices.” Examiners should not apply large bank practices to community banks that have a different, less complex and more conservative business model. Examiners also should not criticize community banks in their final written examination reports for not complying with “best practices” unless the criticism involves a violation of bank policy or regulation. Industry “best practices” should be transparent enough and sufficiently known throughout the industry before they are cited in an examination report.
Higher-Risk Payment Processing. Community banks that provide payment processing services for customers engaged in higher-risk activities such as payday lending should perform proper risk assessments, conduct due diligence to determine if customers are operating in accordance with applicable law, and maintain systems to monitor these relationships on an ongoing basis. Regulators and law enforcement should not prohibit or discourage community banks from serving these customers provided adequate and balanced controls are in place. The indiscriminate targeting of community banks offering these services places community banks at a competitive disadvantage with the large banks. ICBA supports legislation that would prohibit banking agencies from suggesting, requesting, or ordering a bank to terminate a customer relationship unless the regulator puts the order in writing and specifies a material reason for the action. This requirement would limit the opportunity for regulators to abuse their discretion and terminate long-standing banking relationships based on biased, unsubstantiated, and subjective notions of “reputational risk.”
Exam Appeals. ICBA supports legislation that would reform the way bankers may seek a review of an agency decision or action resulting from an exam including classification of a loan, an exam rating, or the adequacy of loan loss reserve provision. Currently, bankers can seek review of these actions or decisions internally or through the ombudsman’s office. However, these appeals are usually not successful. Furthermore, community bankers often choose not to appeal out of fear of retaliation. ICBA supports legislation that would allow bankers to appeal to an independent council or ombudsman office that would prohibit any sort of retaliation against the bank for exercising its right of appeal.
FDIC Overreach Against Directors and Officers of Failed Banks. ICBA believes that in some cases the FDIC is overreaching in its lawsuits against directors and officers of failed banks. ICBA believes that state business judgment rules should protect the decisions made by officers and directors in the ordinary course of business, including lending decisions, and that officers and directors should only be liable in cases of gross negligence or fraud. FDIC lawsuits against directors and officers of failed banks are exacerbating the challenge of recruiting and retaining community bank directors and officers.
Staff Contact: Chris Cole