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By Matthew R. Lee

WASHINGTON, January 29 – On January 12, Inner City Press / Fair Finance Watch filed with the Office of the Comptroller of the Currency a challenge to the application by E Trade Savings Bank to acquire Trust Company of America. Inner City Press found and wrote: "E Trade Savings Bank's most recent CRA Evaluation, on its website, gives it for example a rare Needs to Improve rating for the entire states of Arizona, Colorado, Florida, Georgia, Michigan and Oregon, and an undeserved “Satisfactory” for New York. How can a bank be “Needs to Improve” in six states - of its only 13 states, including DC - and be moving for this acquisition? Notwithstanding the OCC's recent pronouncement about banks with Needs to Improve ratings, which ICP contends should have been subject to notice and comment, this low performance level militates for the extension of the comment period and hearing(s) ICP is requesting. Also, for the record: “FINRA Fines E*Trade Securities LLC $900,000 for Supervisory Violations Related to Best Execution and Protection of Customer Order Information."  Taken together, these violations militate for the extension of the comment period and hearing(s) ICP is requesting - and for the denial of the application. On January 29, Etrade's lawyers at Skadden Arps downplayed the needs to improve CRA ratings (their full filing here, since Scribd often disappears), then argues that even a settlement with FINRA "does not bear on the statutory factors." Juvenile thinking seems to be spreading. Earlier in January Inner City Press / Fair Finance Watch filed with the Federal Reserve for evidentiary hearings on the application by Charles Schwab Corporation to set up Charles Schwab Trust Bank in Henderson, Nevada. It has been reported that this bank would “focus on Schwab’s workplace benefit plan clients, such as employers who offer 401k plans, and the intermediaries who serve them.” But Schwab has been sued by its own employees, about 401k plans. See, e.g., Severson v. Charles Schwab Corp. , N.D. Cal., No. 3:17-cv-00285-JCS, complaint filed 1/19/17 ). Schwab “larded” its own 401(k) plan with expensive and poorly performing investment funds and services that earned fees for the company at the expense of workers’ retirement savings, according to the new lawsuit, filed Jan. 19. The lawsuit also targets the performance of Schwab’s stable value fund and claims that Schwab executives allowed the plan’s trustee to profit from the unallocated plan assets it held. It is also noteworthy that, Inner City Press wrote to the Fed, despite the issues there, Schwab reportedly held merger talks with SoFi earlier this year. Fair Finance Watch has also reviewed, in Nevada, Charles Schwab Bank's lending in the Reno MSA. For home purchase loans, all of the loans were to whites (none to Latinos or African Americans), all to applicants over 120% of MSA median income. The same is true of refinance lending. On the current record, these applications should not be approved." We'll have more on this. English on December 6 asked U.S. District Judge Timothy J. Kelly of the federal district court in Washington to issue a preliminary and permanent injunction against President Trump that would block his appointment of Office of Management and Budget Director Mick Mulvaney. Meanwhile, the low percentage of banks being given less than satisfactory Community Reinvestment Act rating has become infinitesimal. The Office of the Comptroller of the Currency has signaled that even those few low scores will have no impact.

In a "Policy and Procedures Manual" quietly issued on November 8, with no notice or comment, the OCC says "An overall less than satisfactory CRA rating is not a bar to approval of an application. Rather, the facts and
circumstances of the application must be evaluated as discussed in this PPM." (PPM 6300-2). Now the American Bankers Association has issued a ironically termed white paper congratulating the OCC for this and urging it and the other agencies, including the FDIC for which a Fifth Third lawyer is nominated to become chief, to go even further. We'll have more on this- and this: Seven months after Wells Fargo Bank's CRA rating was dropped two levels to "Needs to Improve," barring it from acquisitions, the Office of the Comptroller of the Currency has quietly said, in a footnote to a Bulletin issued on October 12, that "The OCC’s policy is not to lower a bank’s CRA composite or component rating by more than one rating level." See here, footnote 8. So when did this become the OCC's policy, after it dropped Wells by two levels? Call it a stealth sop to Wells Fargo - and seemingly a violation of the Administrative Procedures Act. We'll have more on this. In July it emerged that over 800,000 people who took car loans from Wells were charged for needless auto insurance, pushing 274,000 Wells Fargo customers into delinquency and triggering nearly 25,000 wrongful vehicle repossessions. So much for the industry having cleaned itself up after the predatory lending meltdown. New York City announced it will not enter any new relationships with the bank, also suspending Wells Fargo's role as a senior book-running manager for NYC General Obligation and Transactional Finance Authority bond sales. A statement by Mayor Bill de Blasio and Controller Scott Stringer noted that "Currently, Wells Fargo holds contracts with the City to provide banking services, including to operate 'Lock Box' services that hold taxes and fees collected by the City. There is approximately $227 million of City dollars held in Wells Fargo accounts." Bu will they get involved in opposing Sterling National Bank, which Inner City Press and Fair Finance Watch have exposed as having "unreliable" CRA data, notwithstanding the OCC's scam "Satisfactory" rating on May 30? Click here. We'll have more on this. Back in late March, the bank settled for $110 million a class action lawsuit for having opened fake accounts without customers' knowledge or approval. But will Wells Fargo, which Inner City Press has covered through its acquisition of First Union and even before, from Washington to Alaska, still be allowed to go forward with its reported plan to close 400 bank branches, including in low and moderate income areas? The question reverberated, with others, on Capitol Hill on March 29 - and we'll have more on it.

  Meanwhile the US Federal Reserve Board, which bears more than a little responsibility for the global financial crash from 2008 due to inattention to predatory lending including on mergers, has now further reduced its scrutiny of bank mergers, with little notice to date. Now Fair Finance Watch and Inner City Press has timely challenged the Federal Reserve's stealth reduction of scrutiny, in a timely request for reconsideration filed with the Federal Reserve on the evening of March 27, below. FFW and others including NCRC protested, and Inner City Press has Freedom of Information Act requests pending regarding, the application by People's United to acquire Suffolk County National Bank.

FFW showed that  in the the New York City MSA, "People's United made 82 home purchase loans to whites and NONE to African Americans or Latinos. This is redlining; this proposed acquisition could not legitimately be approved and People's United should be referred for prosecution for redlining by the Department of Justice and CFPB."

When the Fed ruled on People's application, it added this: "In 2012, in its order approving Capital One Financial Corporation’s acquisition of certain U.S. operations of ING, the Board stated that a proposal that involves an acquisition of less than $2 billion in assets, that results in a firm with less than $25 billion in total assets, or that represents a corporate reorganization may be presumed not to raise material financial stability concerns absent evidence that the transaction would result in a significant increase in interconnectedness, complexity, cross-border activities, or other risk factors.  Since establishing this presumption, the Board’s experience has shown that proposals involving an acquisition of less than $10 billion in assets, or that result in a firm with less than $100 billion in total assets, are generally not likely to create institutions that pose systemic risks. Transactions below either of these asset thresholds have typically not involved, or resulted in, firms with activities, structures, and operations that are complex or opaque. Such transactions have also not materially increased the interconnectedness or complexity of the financial system. Accordingly, the Board now presumes that a proposal does not raise material financial stability concerns if the assets involved fall below either of the aforementioned size thresholds, absent evidence that the transaction would result in a significant increase in interconnectedness, complexity, cross-border activities, or other risk factors." Why wasn't this subject, at least, to notice and comment rulemaking? Why now? FFW and ICP have filed a "timely request for reconsideration, on behalf of timely commenters Fair Finance Watch and Inner City Press (ICP) of the Approval and Stealthy Announced Change in Financial Stability Review Presumptions in the Board's March 16 Approval of Application by People's  United Financial to acquire 100 percent of the voting shares of, and thereby merge with, Suffolk Bancorp, and thereby indirectly acquire voting shares of The Suffolk County National Bank, both in Riverhead, New York. While there are many portions of the approval order crying for reconsidering, to be clear ICP will herein have the following focus, on the Federal Reserve Board's misuse of this proceeding and approval order to purport to change its review of future applications, on the financial stability and inevitably related factors. What is the basis of the Federal Reserve determining that post-crisis scrutiny should be reduced? The above quoted portion of the order must be reconsidered, stripped out, and made subject to public comment. On fair lending issues, the Order does not appropriately address or take into account that in 2015 in the New York City MSA, People's United made 110 home purchase loans to whites and only ONE to an African American and only four to Latinos.
Again, this is systematic redlining; this proposed acquisition could not legitimately be approved and People's United should be referred for prosecution for redlining by the Department of Justice and CFPB. ICP said that a hearing was needed, and now after the Fed's insertion of a policy change into the Order, reiterates that." We'll have more on this.

  At what point does bank executives' spin to investors and the media become more than misleading? Take Community Bank System (NYSE: CBU), which has now received on March 13 consumer lending questions on top of the nine earlier questions from the Federal Reserve on its proposal to acquire Merchants, after its CEO derided issues Fair Finance Watch raised about the proposal.

 On March 13, the Fed asked CBU: "In connection with the application by Community Bank System, Inc. (“Community”), DeWitt, parent company of Community Bank, National Association (“Community Bank”), Canton, both of New York, to merge with Merchants Bancshares (“Merchants”), and thereby acquire Merchants Bank, both of South Burlington, Vermont, pursuant to section 3(a)(5) of the Bank Holding Company Act of 1956, 12 U.S.C. § 1842(a)(5), Federal Reserve staff requests the following additional information:
 
1.       Provide an update on Community Bank’s Community Reinvestment Act (“CRA”) activities and efforts since its July 27, 2016 CRA Performance Evaluation.  In your response, address the activities in the bank’s assessment areas under each of the lending, investment, and service tests.
 
2.       Regarding consumer lending products:

a.       reconcile page iv of the Bank Merger Act (“BMA”) application, which states that Merchants Bank currently offers consumer loans, with page xiv of the BMA application, which states that Merchants Bank does not currently offer consumer lending products and services; and

b.      explain how the consumer lending products and services offered by Community Bank, including overdraft lines of credits, are enhanced compared to Merchants Bank’s offerings."

  On its last proposal, CBSI bad-mouthed a Community Reinvestment Act protest even as it had to delay its Oneida deal. First, CBSI's "Hal Wentworth said that Inner City Press is not a local group and pointed out that letter was the only one filed on the Oneida deal. 'This activist does not do business with either Oneida or Community Bank, but nonetheless made vague allegations regarding Community,' Wentworth said. 'These allegations were entirely without merit and will be fully addressed by Community Bank and Oneida Savings in the application process.'" Then the deal was significantly delayed, with CBSI pushing the date back.

  More spin:  CFO Scott Kingsley told the media that FFW's protest "is not the sole reason. We have other things that have to sequentially happen to get to the technological conversion in July. When we did not have a definitive answer from the Fed or other parties last week, that put the technological conversion at risk, so we opted not to go ahead.”

  This time, it went to the CEO Mark Tryniski, who in January 2017 told stock analysts that "despite the baseless protest filed with the Fed Reserve by a serial activist, we expect to close in the second" question. We'll see. Among the nine questions: "Community Bank states that, to the extent it does not intend to continue to offer certain loan products and services offered by Merchants Bank post-merger, it does not believe that not offering such products and services would have a significant impact on the target bank's communities. As an example, Community Bank cites the fact that Merchants Bank would no longer accept applications for FHA/VA loans (on behalf of a mortgage company), but that Community Bank would offer loan products and programs which are not currently offered by Merchants Bank that Community Bank believes are comparable and 'equally valuable' to its communities, such as FNMA's Home Ready Program, Community Bank's Affordable Housing Program, and the USDA loan program. Compare the features of FHA and VA loans for which applications are presently taken by Merchants Bank with the features of the products and programs that Community Bank asserts are comparable, including any features of FHA and VA loans that are not covered by Community Bank's offerings."  Watch this site.

   With Capital One failing in its proposal to acquire the "World's Foremost Bank," another bank merger challenged by Fair Finance Watch failed. In December it was Astoria's proposed take over by NY Community Bancorp, here.

   In January, disparate lender Investor Bancorp, on which Fair Finance Watch previously got a condition imposed saw its proposal with Bank of Princeton fall apart.

  And now it's Capital One - Cabela, on which Inner City Press commented: "In the New York City MSA in 2015, the most recent year for which HMDA data is available, for conventional home purchase loans Capital One denied the applications of whites 23% of the time, while denying African Africans fully 45% of the time, and Latinos even more, 46% of the time. This is unacceptable.

  Meanwhile, Capital One is “closing branches in Laurel, Gaithersburg, Frederick and Merrifield.”

   Capital One came back with snark, as has Simmons National -- but then announced including to NCRC that  it will withdrawn its application. Onward.

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