The Good and Bad of a Fully Functional CFPB

January 17th, 2012

Over the past two weeks, copious amounts of ink have been spilled about President Obama’s “recess” appointment of Richard Cordray, the Director of the Consumer Financial Protection Bureau (CFPB).  Although the Justice Department has issued a statement alleging the constitutionality of the appointment, it is inevitable that legal challenges will soon be filed and drag on for the foreseeable future. 

Since the Dodd-Frank financial reform law was passed more than a year and a half ago, I’ve heard from a number of community bankers who identify the creation of the CFPB as their single greatest concern arising from the law.  To be sure, their concerns have merit.  The CFPB’s power will not be limited to the biggest financial institutions. The rules they write have the potential to stifle product innovation and increase regulatory costs on community banks.  All of this without any oversight from Congress.

But, as in almost every story, there is some potential for good.  The naming of a Director for the CFPB means that the most abusive and unregulated entities providing financial services to consumers are now subject to the bureau’s rulemaking authority.  Payday lenders, private student lenders and other financial intermediaries who have been preying on the poor, unadvised and unsuspecting of our society will soon be reined in by the CFPB’s authority. 

The unscrupulous behavior of these entities has done more harm than good in the name of providing “service” to consumers.  If the CFPB can provide any assistance in ending or limiting the abuses they perpetuate then I believe we all have reason to celebrate.

As this takes shape community banks have an opportunity to distinguish themselves.   We know what it means to serve customers, understanding their financial needs and seeking solutions to help them meet their goals.  Community banks are built on the bedrock of long-term relationships, not short –terms profits.   

Only time will tell what the future holds for the CFPB and how the agency intends to implement “tiered regulation” and resist  the temptation to promulgate rules to fit all institutions as Director Cordray has promised. But as the banking industry looks to the uncertain future, we have the power to influence our lawmakers and the CFPB itself to enhance the bureau’s potential to do good. 

The recent appointment of Robert Cordray is the subject of a recent Op Ed IBAT is currently distributing to publications around the state.

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Posted in bank regulators, Barney Frank, CFPB, community banks, Consumer Financial Protection Bureau, Dodd bill, financial regulatory reform, IBAT, Independent Bankers Association of Texas | No Comments »

Getting the ‘Right People on the Bus’ Means Throwing Big Banks Off

January 3rd, 2012

In his December 20, 2011, American Banker editorial, “Community Banks Should Ask for a Divorce,” Robert H. Smith summarizes the growing frustrations of community bankers today in this way:

Unfortunately the community banks of this country are thrown under the bus by just being a bank.  They have been unable to disassociate themselves from extra costs and lost credibility resulting from the scarred reputation of the bigger banks. Today the community banks are subject to the same increased regulatory burden, increasing capital and general public disdain as the larger bank. It’s time for community banks to disassociate themselves from the big banks in the eyes of the public, the legislatures and the regulatory community. They must seek regulation under a different set of expectations, consistent with their size, capabilities and ability to compete consistent with community opportunities.

Smith, a former Chairman and CEO of Security Pacific Corp., now founder and director of a community bank in Newport Beach, California, “gets it.” Having made a living in a “too big to fail” bank and now having to survive and compete with Security Pacific’s acquiring institution, Bank of America, Smith conveys the mounting uncertainty of the future of community banks in a post Dodd-Frank era.

What’s perplexing to me is the inability of so many of Smith’s community banker comrades to recognize the reality of the financial service marketplace today. For more than 100 years, community banks and big banks have coexisted serving different market segments with virtually the same product mix.  Community banks relied on the larger banks for traditional correspondent relationships seeking help with loan participations and clearing needs. And while some of these relationships still exist today, most have gone by the wayside with the emergence of community “bankers banks” and other larger community bank correspondent relationships. Today, the systemically important to big to fail institutions have come to rely on community banks for one thing and one thing only…their credibility and grassroots relationships with lawmakers.

Make no mistake; the big banks are taking a ride on the community bank advocacy bus in Washington and throughout state legislatures all across the country. They hide like thieves in the night behind the goodwill and unified message of the community banks proclaiming “one industry voice” as the only means to a successful legislative and regulatory end. And look where that has gotten us…a “one size fits all,” over-regulated world and a growing public perception that a bank is a bank, all of us out for personal enrichment and public deception.

In his bestselling book, “Good to Great,” Jim Collins says this about the philosophy of great companies:

They start by getting the right people on the bus, the wrong people off the bus, and the right people in the right seats. And they stick with that discipline—first the people, then the direction—no matter how dire the circumstances.

The same rings true for industry success. It is time community bankers to throw the “too big to fail” off our bus. Community bankers should finally unite as one and support only those organizations whose philosophies and advocacy match precisely their needs and is not conflicted by having to serve two masters. Or as Smith concludes:

The community banks should work to convey a message that they should and must stand alone if they are to remain. They must be divorced from the larger banks both in reputation and regulation if not name.

It only took Kim Kardashian 72 days to realize that her union with Kris Humphries was not a marriage made in heaven. As we begin this New Year, let’s resolve that we have tied the knot with the too big to fail for far too long and vow instead to pull our own wagon by bifurcating and advancing our own legislative and regulatory agenda and pursuing and preserving our own good name.

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Posted in bank regulators, community banks, Compliance, financial regulatory reform, Independent Bankers Association of Texas, Texas Community Banking, too big to fail, wall street | 3 Comments »

Bank of America’s $5.00 Durbin Fee

October 7th, 2011

“You don’t have some inherent right just to, you know, get a certain amount of profit, if your customers are being mistreated,” he said.  Later, he added, “this is exactly the sort of stuff that folks are frustrated by.”

Those words, spoken in response to a question posed by an ABC news correspondent about Bank of America’s decision to begin charging a $5.00 monthly debit card fee by our 44th President, sent shock waves throughout the banking community this week.  And, well, it should have.

He went on to say, “This is exactly why we need this Consumer Finance Protection Bureau that we set up that is ready to go,” Obama said.  “This is exactly why we need somebody whose sole job it is to prevent this kind of stuff from happening.  You can stop it because if you say to the banks, ‘You don’t have some inherent right just to – you know get a certain amount of profit.  If your customers are being mistreated, that you have to treat them fairly and transparently.”

Now let me say at the outset that I don’t have any warm fuzzy feelings about too big to fail Bank of America.  Every time they are held out for their lame-brained treatment of the consuming public (remember this summer’s robo-signing incident?) it hurts all banks, including community banks.  But, if you believe in our free enterprise system, then you must admit that B of A has the right to model and price their product offerings any way they want.

Senior Democratic Senator Dick Durbin from the land of Lincoln, whose infamous interchange amendment prompted the fee to begin with, couldn’t wait to pile on.  He used the announcement to offer this suggestion to B of A customers in a personal privilege speech to his colleagues on the Senate floor.  “Vote with your feet.  Get the heck out of that bank.” Is this the brave new world of civility and discourse we live in?  Did a United States Senator call, from the floor of the Senate, no less, for a run on an American financial institution?

President Obama showed a modicum of political savvy as he later followed his advisors and backed away from his earlier comments.  When asked in a subsequent news conference whether government has the right to dictate how much profit American companies make he responded, “I absolutely do not think that.  Now (B of A) has the right, but it’s not good practice.  It’s not necessarily fair to consumers.”

A couple of observations.  First, Obama has shown his true colors and zest for creating the Consumer Financial Protection Bureau (CFPB) in the first place.  Short of this country having a nationalized banking system, he wants bank product and price regulated, and he is willing to use the bully pulpit to suggest so.  That is precisely what the industry feared when the new agency was constructed in Dodd-Frank.  Only after speaking to Secretary Geithner and Acting CFPB Director Raj Date was our President reminded that the CFPB’s mission is in fact, not to regulate product and price, but to ensure financial products and fees are clearly disclosed to consumers in plain English.

Second, just what did our fearless leader and trial lawyer Senator expect would happen when they craftily inserted debit fee interchange price controls in Dodd-Frank?  The banking industry warned that such limitation would dramatically affect debit card usage and likely result in higher fees for consumers.

I certainly do not suggest that all banks will follow Bank of America’s lead and impose a monthly fee on their debit customers.  I only opine that there is inherent danger when government gets in the way of free enterprise and attempts to create winners and losers.

Our leaders should spend less time trying to interject public policy into free markets and concentrate instead on truly enabling financial institutions to fail, regardless of size, something they attempted to do in the financial reform legislation.

Bank of America doesn’t need their help in driving consumers to other financial institutions.  They seem to be doing a pretty good job of doing that all by themselves.

Posted in CFPB, community banks, Consumer Financial Protection Bureau, debit card, Dodd bill, Durbin amendment, Independent Bankers Association of Texas, Interchange, Texas Community Banking, too big to fail, wall street | 1 Comment »

Consumers…The Real Victims of Consumer Protection

August 22nd, 2011

Guest blogger Shannon Phillips, IBAT Deputy General Counsel, provides his observations in this Missing Linc post.

The American University radio station, WAMU 88.5 FM, reports on its Web site that Greg Fairchild, Director of the University of Virginia’s Tayloe Murphy Center, has studied what happens to poor communities when bank branches close.  (UVA Researcher Looks at Banks’ Effects on Neighborhoods)  His research found that bank branches were likely to decline in areas outside the areas of general affluence leaving a vacuum for other lenders.

And when the banks left, he says, predators stepped in.

“These would be check cashers, payday lenders, automobile loan companies, title loan companies,” he says.

They often charged very high rates, up to 300 percent on loans, and predatory lenders were not the only ones who took advantage of bank less consumers.

Mr. Fairchild also found that banks made areas more prosperous and that crime went up when banks left.

“Often times you’d find criminals who would bust into an apartment, find the gentlemen that were there with cash in hand, and take that cash with little worry of the police either patrolling at the moment and/or any of those individuals calling the police afterwards.”

If Congress and the federal regulators continue to push onerous regulations down to our community banks, his observations will spread beyond the poor suburbs of Virginia to the small towns of Middle America.  As the federal government sits back and counts the dwindling number of community banks without lifting a finger to stop the carnage, your neighbors are the ultimate victims.  Unfortunately, the government has positioned itself so that the banks will be blamed for this carnage while the federal government will claim that this happened despite their best efforts.

As an aside, at least as reported in this article, Mr. Fairchild falls into the familiar trap of misunderstanding the differences between banks and credit unions and the unfair competitive advantage afforded credit unions by federal tax laws.

But when communities had banks, crime rates dropped, and that helped push property values up. Fairchild also found it was possible for credit unions to prosper in poor neighborhoods without ripping people off.

“These are non-profit entities,” he says. “There are not shareholders. They’re owned by the community, and so often they’re able to offer a lower cost services, and they’re often able to offer better rates.”

If credit unions are able to offer lower cost services and better rates, it isn’t because they are non-profit, owned by the community, and lacking shareholders.  It is because they are allowed to grow without limits, do not pay federal income taxes, and face far less regulatory scrutiny.  Lest I go Rambo on Mr. Fairchild while chasing this red herring, I will merely assume that, because he spoke highly of community banks, when he juxtaposes credit unions against “banks,” he is talking about the Too-Big-to-Fail monoliths.

Notwithstanding his prejudice or misunderstanding of credit unions, Mr. Fairchild’s primary point that when banks consolidate it hurts consumers, particularly the poorest among us, is deadly accurate.

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Time To Stop Over Regulating the Innocent

August 15th, 2011

Well, I have had just about enough of “the banks aren’t lending money” crap.  Everywhere I turn I read about the so-called credit crunch and small business just can’t get the resources it needs for expansion.

Let me see if I can help out the media with this “problem.”  First, if you have a true creditworthy borrower who is seeking funds to expand their established, cash flowing profitable business, call me.  I can put him or her in touch with about 6000 independent community banks that would love to have a good earning asset on their books.

Second, call Christopher “I am now a lobbyist for the motion picture industry” Dodd and Barney Frank.  They, by virtue of their so called Financial Reform legislation, have created such trepidation and doubt and red tape that many community banks are hesitant to lend to marginal customers.  Their Dodd-Frank legislation has so empowered the federal regulatory agencies (including new ones) to conduct “witch hunts” on the industry.  In this economic environment, Congress has blamed the regulators for the financial crisis for not being “tough” enough.  The regulators in turn have unleashed their wrath on the industry with a “we’re going to getcha” mentality.  Community bankers are scared to death to lend.  You would be too if you had already been judged guilty until you could prove yourself innocent.

Hell, even the Department of Justice has gotten into the game.  Examiners looking at hundreds of loans on the books might discover a fair lending discrepancy in a rate charged one borrower vs. another for almost identical loans.  Forget about the fact that one of the borrowers might have a lower FICO score than the other…Justice Department referral.

Want to solve the so-called credit crunch and get this country moving again?  Find a few members of Congress with the backbone to reverse the horrible trend of over regulating the innocent and set their sights on the big bank abusers.  It is ludicrous to think that the same regulatory rules should apply to a 100 mm community bank and a 100 billion mega bank. 

If something is not done soon to reverse this horrible regulatory overkill trend, I’ll show you a real credit crunch when all the independent community banks throw in the towel and sell, leaving all the small business and consumer credit decisions to the big banks.

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Posted in community banks, Dodd bill, financial regulatory reform, IBAT, Independent Bankers Association of Texas, Lending, Loans, Small Business Lending, Texas Community Banking | 3 Comments »

The Media’s Brand New Love Affair

August 4th, 2011

Guest blogger Shannon Phillips, IBAT Deputy General Counsel, provides his observations in this Missing Linc post.

For over a year, American media outlets have lauded the Dodd-Frank Act’s (the Act) efforts to reform financial consumer protection. In particular, the print and electronic media seem to have fallen head over heels in love with the Act’s Consumer Financial Protection Bureau (CFPB).  When the media must report on something while swooning over it, it leads to something I like to call “Reporting While Infatuated.”  RWI is a very dangerous, incurable, and possibly fatal condition that can quickly reach pandemic levels among certain members of the media. (Remember the 2008 election?)  RWI has been directly linked to media coverage that extols the virtues of the Dodd-Frank Act and the CFPB while exposing how very little many in the American media know of the Act, the CFPB, state and federal banking regulators, operations and lending laws, and consumer protection laws.  We have been pleased with the meetings we have had with representatives of the CFPB and their understanding that community bankers are not the problem, but we have likewise been dumbfounded by the misinformation we have seen from members of the media who seem to be affected by RWI.  The latest example of this RWI comes from CNNMoney. com.

CNNMoney.com reporter Blake Ellis developed an interactive graphic showing how the CFPB can help consumers dealing with complaints against various industries, including banks and credit unions, debt collection, and credit cards.  The graphic has a balloon containing the phrase “Banks & Credit Unions.”  Connected to that balloon is another balloon with the number “29,967,” which is purportedly the number of consumer complaints the FTC received about banks and credit unions in 2010.  (Which we know is not where consumers should voice complaints against banks and credit unions.)  When you put your cursor on the balloon containing that number, a story pops up about Colleen Silvey’s complaint against her bank.  The inference is that the CFPB could have helped her with her problem.  However, what Mr. Blake apparently doesn’t know is that Ms. Silvey is merely complaining about her bank following federal law. Here is Colleen’s story:

Suddenly, I started seeing fees show up here and there in my checking account. I couldn’t understand what they were for. After this happened for awhile, I got a letter in the mail from my bank saying it charges a fee for transferring money between checking and savings accounts too often. I had never been told that before. I had always put my paycheck in my savings account – where I can’t see it – and then I would transfer some to my checking account when I need to pay a bill. Don’t I have a right to put my cash where I want?

If I had Colleen’s address, this would be my answer to her:

Dear Colleen:

I saw your name and picture with a graphic showing how CNNMoney.com believes the Consumer Financial Protection Bureau could have helped you with an issue you had with your bank.  Unfortunately, CNNMoney got it wrong. First, under the facts you gave, help from the CFPB or any other federal, state, or local governmental agency was unnecessary.  Secondly, if you had an issue that warranted government help, your bank is already heavily regulated by a federal agency and possibly a state agency as well.  And each of those agencies have consumer assistance divisions.

Your complaint is unwarranted. Let me break it down one issue at a time.

Suddenly, I started seeing fees show up her and there in my checking account I couldn’t understand what they were for.  After this happened for awhile…

It sounds like you noticed several of these fees from your bank without doing anything.  If you ever don’t understand something on your online account or on your bank statement—particularly if it is costing you money—don’t hesitate, contact your bank immediately.  You have an obligation to take care of your personal finances.  You are not fulfilling your obligation when you don’t act on something you don’t understand.  If you bank at an Orlando-area community bank, you could have simply called your bank and they would’ve gladly explained the fees to you and how to avoid them.  If you bank at one of the too-big-to-fail banks, your inaction is understandable because getting someone to help is nearly impossible.

I got a letter in the mail from my banking saying it charges a fee for transferring money between checking and savings accounts too often.

If you reread the letter you received from your bank, I think you’ll find that it did not say that you were charged fees for transferring money between checking and savings too often.  It said that you were charged fees for making too many transfers FROM SAVINGS to checking.  The limitation on transfers from your savings and checking account is not a restriction created by your bank, it is a restriction created by federal law.  And it doesn’t restrict transfers from checking to savings. Specifically, it is found in Regulation D (12 CFR 204.2):

“The term ‘savings deposit’ also means: A deposit or account, such as an account commonly known as a passbook savings account, a statement savings account, or as a money market deposit account…from which…the depositor is permitted or authorized to make no more than six transfers and withdrawals, or combination of such transfers and withdrawals, per calendar month or statement cycle  (or similar period) of at least four weeks, to another account (including a transaction account) of the depositor at the same institution….”

Your bank is required to ensure that no more than the permitted transfers are made. According to federal law, a bank can either prevent the excess transfers or adopt procedures to monitor the transfers and contact customers who exceed the limits on more than an occasional basis.  If a customer continues to exceed the limit after they were contacted, the bank must: (1) close the account, (2) place the funds in another type of account, or (2) take away the transfer capacity.  Additionally, most banks, to show that they are serious about discouraging exceeding the transfer limit, will charge the depositor a fee for each transfer that is over the limit.  Your bank has legally chosen to monitor transfers, charge them a fee to discourage the practice, and notify the customer when it happens on more than an occasional basis.

I had never been told that before.

I bet you had been told this before.  I can say with near certainty, that your savings account contract addresses the limitations on transfers and withdrawals.  You should have also received a disclosure of the fees.  My guess is that you didn’t read your account contract or fee disclosure. (Don’t worry; I think most depositors don’t read these.) Regulation DD requires your bank to disclose the fees charged on your account.  This is another federal law.  Here is what it says in relation to disclosing fees in the account disclosures:

(b) Content of account disclosures. Account disclosures shall include the following, as applicable:

…snip…

(4) Fees. The amount of any fee that may be imposed in connection with the account (or an explanation of how the fee will be determined) and the conditions under which the fee may be imposed.

So, if you can dig up the account contract and the account disclosures your bank gave you when you opened up your accounts and any disclosures and account amendments that you received after you opened it, I think you’ll find that you were told about the transfer limitation and the fees.

I had always put my paycheck in my savings account – where I can’t see it – and then I would transfer some to my checking account when I need to pay a bill.

Because you can certainly “see” how much you have in your savings account, I assume that what you mean is that you put the money in savings so you are not tempted to spend it. I can understand why you’d want to use this method, and transfer money from savings to checking every time you have a bill to pay. Unfortunately, regardless of where you bank, federal law is going to prohibit you from doing this, and the bank is likely going to charge you a fee if you do. If they don’t charge you a fee, they still will have to ensure that you don’t exceed the transfer limitation in federal law.  You’re going to have to find another money management technique. Your community banker will likely have some ideas.

Don’t I have a right to put my cash where I want?

Yes, Colleen, you do have a right to put your cash where you want. But, as I state above, federal law is going to restrict the number of transfers from your savings account.   I am glad that you chose to put it in a bank. I hope you chose a community bank, but if you didn’t, I encourage you to open an account at a community bank.

I’m sure your bank could have set things straight. If not, then each banking regulator has employees on staff to assist consumers. If your bank is a national bank, call the Comptroller of the Currency at (800) 613-6743. If it is a state bank, call the FDIC at (877) 271-3342 or you can call the Florida Office of Financial Regulation at (800) 848-3792.

Your bank was simply following federal law, and didn’t do anything for a consumer to complain about.  You did not have an issue that the Consumer Financial Protection Bureau could have assisted with.  However if you did have an issue that required assistance, there are already banking regulators who could have assisted you.

In the future, before CNNMoney.com and Mr. Ellis writes an article complaining about banks mistreating their customers, we hope they consult with a banker, a regulator, or a banking association .  And, in the future, if you ever have a problem with your bank, I hope you first contact your bank, and then if you and your bank can’t resolve the matter, contact your bank’s regulator.

 If you have any questions about anything I’ve said, please do not hesitate to call.

Sincerely,
Shannon Phillips

Cc: Blake Ellis, CNNMoney

Yes, if I were going to write a letter to Colleen, that is what it would say.

The views expressed in this blog belong to the author and do not necessarily represent the views of IBAT, its Board, or its members.

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Posted in CFPB, Compliance, Consumer Financial Protection Bureau, Dodd bill | 1 Comment »

The Corner Office | IBAT’s August 2011 vlog

August 4th, 2011

 

Watch the third edition of IBAT’s monthly video blog (vlog): The Corner Office.

YouTube blocked? Download the video file.

Posted in community banks, Compliance, Consumer Financial Protection Bureau, Dodd bill, IBAT, Independent Bankers Association of Texas, Texas Community Banking | No Comments »

IBAT’s July Vlog

July 6th, 2011


Featured this month:

Posted in bank regulators, community banks, financial regulatory reform, IBAT, Independent Bankers Association of Texas, Leadership Division, Texas Community Banking | No Comments »

The First Edition of IBAT’s Vlog

June 3rd, 2011

Watch IBAT President & CEO Chris Williston’s first vlog to IBAT Members.

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Posted in community banks, Compliance, default category, IBAT, Independent Bankers Association of Texas, Texas Community Banking | No Comments »

The Certainty of Uncertainty

September 3rd, 2010

 Congressional recesses are a godsend.  But this one is particularly special.

 Having been on the forefront of the financial reform debate in Congress for the past sixteen months, this August has been a welcome reprieve from the many trips to our Nation’s Capital and hours spent on the phone with Texas Congressmen and staffers.  It is also gratifying to know that it is more difficult for Congress to do more harm when not in session.  But more important than that, the lull has provided time to step back and reflect on recent legislative events, retool for future sessions and reconnect with IBAT members all across Texas.

There is a recurring theme that I hear from community bankers when asked about their thoughts on the recently passed Dodd/Frank Act.  That is, they don’t know what they don’t know.  Most all can see both the immediate benefits and the detrimental impact the Act will have on non-interest income and expense.  Almost all gird for what they can already see…more and more government regulation and intrusion to serve their customers and communities in ways they are accustomed.  Perhaps most disconcerting of all, they question the relevance of their institution once an onslaught of new consumer rules are promulgated by an empowered oversight agency that is yet to be created.

The number one strategic issue facing community bank CEO’s today is compliance.  That has been supported in survey after survey IBAT has conducted over the past six years.  When asked what circumstances might likely lead to the sale of their bank, the price offered is always listed first.  Sadly, the cost and burden of compliance is number two.  Not competitive or capital pressures, but the cost and certainty of compliance today and the uncertainty of additional compliance tomorrow.

Community banks today already spend nearly twenty five cents on every dollar on compliance costs.  It is estimated that the industry will spend nearly 50 billion dollars in 2010 on such compliance.  Every dollar spent on compliance not only raises the cost of lending and services rendered to the very people such rules are designed to protect, but diverts precious capital that can be used for credit availability.  All the while government bureaucrats wonder why this economy is slow to recover.

I am not confused about what we must do if we are to sustain community banking as we know it today and to create an environment that will attract shareholders to invest more capital in existing institutions or new investors to charter community based financial institutions.  First and foremost we must bifurcate this industry to create by legislation different rules and regulations for bona fide community banks vis a vis the large non traditional institutions.  Second, we must engage and be uncompromising in communicating our concerns as new consumer rules are being created.  And finally, we must provide new tools and assistance to our member institutions that will help all cope and reduce the overall cost of compliance.

In other words, we must create certainty in this uncertain financial world; certainty that someone is available to help with real solutions so community bankers can continue doing what they do best…serving local communities by helping local folks realize their dreams rather than the uncertainty of acquiring more resources and generating more paperwork to serve the government.

This is our challenge.  The future of community banking is dependent upon our leadership and action.

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Posted in community banks, Compliance, Dodd bill, financial regulatory reform, IBAT, Independent Bankers Association of Texas | 1 Comment »

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