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By Matthew R. Lee, Video, story, FOIA docs

NEW YORK CITY, February 19 – The US Treasury Department is the next stage of a process to try to weaken and take the community out of the 1977 Community Reinvestment Act. Docket file here. The protagonist, akin to Scott Pruitt when he was at the US Environmental Protection Agency or Ryan Zinke at Interior, is the Office of the Comptroller of the Currency's (OCC's) Joseph Otting. Now Otting, in order to hinder Press coverage of how many banks he meets with by changing the OCC's long standing FOIA fee waiver policy, is saying he will make it harder to get CRA information too. This is the "new" OCC - see its letter on new policies, below.  Under Otting, who is throwing up roadblocks to the release of his calendar under the Freedom of Information Act (see below), "the OCC is instructing examiners to investigate some of the claims separately, rather than addressing them within the merger-approval process.  “We require a certain level of detail and specificity in comments,” Comptroller of the Currency Joseph Otting said in a written statement. 'The changes ensure that concerns are validated by exam staff who are best positioned to review [their] merits.'"

This is a backdoor safe harbor. Since 98% of banks are rated Satisfactory or Outstanding (including those which later are found guilty of discrimination and redlining), to discount comments that are not "validated" by these bogus and inflated rating is regulatory malpractice. Perhaps this is why Otting is hiding his calendar; perhaps the WSJ's Lalita Clozel will dig further. As to the Federal Reserve, Inner City Press has been informed of a memo by a major law firm which has hired and used former Fed Legal Division staff bragging about the fast Fed approvals it is receiving. We'll have more on this - including on BB&T / Suntrust, see here.

On September 12 Fair Finance Watch (and on FOIA, Inner City Press) commented to the OCC, here. On January 16 Inner City Press asked the OCC on the expedited basis for records to disclose Otting's meetings with the banking industry and others.  But in a letter dated January 31, the OCC for the first time in years denied Inner City Press' fee waiver request on this one request, despite the request using the same language as requests the OCC has granted for Inner City Press repeatedly. The only difference is the subject of the FOIA request: Otting. This is an abuse of power. Inner City Press has appealed: "Inner City Press is appealing Mr Frank Vance's letter dated January 31, 2019 which denies, for the first time in years, Inner City Press' request for a fee waiver - because the request concerns Comtroller Otting and his schedule. Inner City Press is a media that covers the OCC... it seeks this information to educate the public about the operations of the OCC. The language of the fee waiver request was the same as the OCC has requested granted - now suddenly a new standard is applied, due to the subject matter of the request. This is unacceptable. The denial letter doesn't even inform of the right to appeal, and the request number is not listed in our account - thereby blocking submission of the appeal. We are submitting under the number of another of our 2019 requests on which fee waiver WAS granted, on the same language. We ask for expedited ruling on this appeal, and an explanation." The OCC has turned around to say it will now deny FOIA fee waiver requests for banks' merger applications and CRA plans: "Good afternoon Mr. Lee.      I am writing to you regarding your correspondence of February 11, 2019, as it relates to your January 17, 2019 FOIA request number 2019-00104.  Although you request a fee waiver in connection with your FOIA request, you do not provide a sufficient justification for the granting of the waiver in either your January 17 or your February 11 correspondence.      I understand that in the past, the OCC has granted you fee waivers based on the same or similar language used in your most recent request, and that you may not have received an adequate explanation as to why your recent request was not being handled in a similar manner as past requests.  Please be aware that going forward, with respect to your case number 2019-00104 and all other requests made by any requester for any information, the OCC will only grant fee waivers on a case-by case basis when a requester has affirmatively demonstrated entitlement to a fee waiver in accordance with the requirements of the FOIA at 5 U.S.C. 552(a)(4)(A)(iii).  This approach is in accordance with the FOIA statute and DOJ guidance.  In applicable guidance, DOJ has stated:  “The Department of Justice stands committed to encouraging agencies to waive fees under the FOIA whenever the statutory fee waiver standard is met. By the same token, of course, agencies also are expected to respect the balance drawn in the statute, safeguarding federal funds by granting waivers or reductions only where it is determined that the statutory standard is satisfied.”  see FOIA Update, Vol. VIII, No. 1 (“OIP Guidance: New Fee Waiver Policy Guidance”) (emphasis added).  Moreover, the OCC’s approach is consistent with case law, which provides that each fee waiver request is considered on a case-by-case basis because each request involves varied information.  See Media Access Project v. FCC, 883 F.2d 1063 (D.C. Cir 1989).  Additionally, the OCC is not bound to grant a fee waiver to a requester in a particular case just because it has granted the requester waivers in the past.  See e.g., Judicial Watch Inc., v. DOJ, No. 99-2315, 2000 WL 33724693 at *5  (D.D.C. Aug. 17, 2000); Judicial Watch, Inc., v. DOJ, No. 97-2089, Slip op. at 14 (D.D.C. July 14, 1998).      The burden for establishing that a fee waiver is justified is on the requester.  See Friends of the Coast Fork v. U.S. Dep’t of the Interior, 110 F.3d 53, 55 (9th Cir. 1997).  Thus, in order for the OCC to determine whether your request meets the requirements for a fee waiver, you must demonstrate that the OCC’s disclosure in response to your request meets the standard set forth in Section 552(a)(4)(A)(iii).  You may wish to consult DOJ’s guidance at https://www.justice.gov/oip/blog/foia-update-new-fee-waiver-policy-guidance  in formulating your justification.  Until these issues are resolved with respect to your fee waiver, the clock is stopped on your FOIA request.     Best Regards,  Kristin Merritt      Kristin Merritt  Special Counsel Administrative & Internal Law  Office of the Comptroller of the Currency  400 7th St., S.W.  Washington, D.C.  20219." We'll have more on this. And here's the request the OCC is delaying on:  "Dear OCC FOIA Officer: Inner City Press / Fair Finance Watch (ICP) makes this request for records pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, and OCC regulations. ICP requests copies of records sufficient to show all of Comptroller Otting's scheduled meetings, appointments, and scheduled events from the date he became Comptroller to the date of your response including but not limited to Outlook calendar entries and daily briefing books for Comptroller Otting on those dates... ICP requests that you expedite the processing of this request. There is media interest and there exist possible questions concerning the OCC's integrity, which affect public confidence. See e.g. this article and the CRA ANPR since." We'll have more on this. Otting's OneWest colleague and now boss, US Treasury Department Steve Mnuchin on December 22 from Cabo called six big US banks: "Brian Moynihan, Bank of America; Michael Corbat, Citi; David Solomon, Goldman Sachs; Jamie Dimon, JP Morgan Chase, James Gorman, Morgan Stanley; Tim Sloan, Wells Fargo. The CEOs confirmed that they have ample liquidity available for lending to consumer, business markets, and all other market operations. He also confirmed that they have not experienced any clearance or margin issues and that the markets continue to function properly.

Tomorrow, the Secretary will convene a call with the President’s Working Group on financial markets, which he chairs. This includes the Board of Governors of the Federal Reserve System, the Securities and Exchange Commission, and the Commodities Futures Trading Commission. He has also invited the office of the Comptroller of the Currency." That's Joseph Otting, with whom Mnuchin worked at and on selling OneWest Bank to CIT Group, complete with falsified pro-merger comments Inner City Press reported on. Otting's OCC is in a process to try to weaken and take the community out of the 1977 Community Reinvestment Act. Docket file here. The protagonist, akin to Scott Pruitt when he was at the US Environmental Protection Agency, is Comptroller of the Current Joseph Otting. On September 12 Fair Finance Watch (and on FOIA, Inner City Press) commented to the OCC, here. At the November 19 deadline, not (yet) posted was Inner City Press' November 17 fourth comment, just as Otting's OCC absurdly waited 13 days to try to rule it does not have to consider Fair Finance Watch's comments on WSFS Bank. But Inner City Press has timely protested WSFS to the Federal Reserve - and has now found out that WSFS is even trying to withhold its CRA information from the public, photo here. So Inner City Press has submitted this Freedom of Information Act request: " This is a FOIA request for the all withheld portions of the applications by WSFS to acquire Beneficial, including but not limited to presumptively mis-labeled “Confidential” exhibits about WSFS's CRA program (“Confidential” Exhibit 9), (Beneficial's subsidiaries (“Confidential” Exhibit 3), Board of Directors resolutions, due diligence (“Confidential” Exhibit 10), operating economy / cost savings (there are branch closings projected), names of prospective managers (ages, requested on application, apparently not provided), and for all records reflecting FRS communications with WSFS or Beneficial or their affiliates for the past twelve (12) months." A fifth comment submitted including that "the OCC is already undermining CRA. Our comments to the OCC on WSFS - Beneficial have yet to be acted on. That comment was submitted on November 6. Now on November 19, two weeks later, the OCC has tellingly said it will not consider it - despite a Federal Reserve Board comment period on the same transaction remaining open until at least November 27. The OCC's attempt to ignore substantive criticism of some banks' performance, while Comptroller Otting previously solicited false comments support his OneWest Bank, are a symbol all what is wrong with this process, and today's OCC.
   While if the past is any guide the OCC will forwarded ICP's comment to the FRB by the FRB, we note in this connection that WSFS' comments on the ANPR favor, as Otting clearly does, dulling the LMI focus of CRA to make it easier for banks.  We oppose all of this.
   Since October 11 the OCC has denied expedited process to our FOIA request(s) for records essential in order to comment on this proposal. OCC Deputy Chief Counsel Charles Steele on November 7 wrote on that “merger between One West Bank and CIT Bank. You do not demonstrate how your request concerns a matter of current exigency to the American public or how a delay in the OCC's response to your request would compromise a significant recognized interest.” Now Inner City Press has submitted an unquestionably timely comment to the Federal Reserve Bank of Philadephia, with more for example that "In the Salisbury MD-DE MSA in 2017, WSFS for conventional home purchase loans based on its outreach got two applications from African Americans - and denied them both. It got two from Latinos and denied. From whites it approve seven of ten applications." And see below. Given the false commenting issues in the OneWest - CIT proceeding, and the importance of CRA to our communities, this denial is insulting and further makes this ANPR commenting process, ostensibly closing now on November 19, illegitimate."  Among them, as reviewed by Inner City Press: Fulton Financial, on which ICP has previously comment, perhaps understandably given its lending record urges “De-couple CRA from Fair Lending... CRA and Fair Lending have complementary but different social and policy objectives. CRA ratings should not be downgraded based on the results of a bank's fair lending performance and exam results.” FFW disagrees: racial discrimination in lending means a bank is NOT meeting the credit needs of its entire community.

The ABA writes that “'needs to improve' CRA rating and should clarify that such a rating will not be a de facto bar to opening new branches or engaging in other activities requiring regulatory approval.” FFW disagrees: a bank with a rare NTI (or Substantial Non-compliance) record should be barred from merging or expanding. This is the enforcement mechanism of CRA.

Th Association of Military Banks of America urges, “Because the financial challenges military communities face are less dependent on income distinctions than in geographically-defined communities, we recommend that all financial services to the military community should be presumed to qualify for CRA credit, regardless of whether the recipient fits within a classic LMI category.” FFW disagrees with this blurring of the lines. Loans to five star generals are not CRA loans.

Heartland Tri State Bank says “Any bank with assets less than One Billion Dollars should not be subject to CRA examinations.” FFW disagrees, precisely because such banks play (or don't play) such a role in the economies of some communities.

   Meanwhile the OCC is already undermining CRA.  The OCC has denied expedited process to our FOIA request(s) for records essential in order to comment on this proposal. OCC Deputy Chief Counsel Charles Steele on November 7 wrote on that “merger between One West Bank and CIT Bank. You do not demonstrate how your request concerns a matter of current exigency to the American public or how a delay in the OCC's response to your request would compromise a significant recognized interest.” Given the false commenting issues in the OneWest - CIT proceeding, and the importance of CRA to our communities, this denial is insulting and further makes this ANPR commenting process, ostensibly closing on November 19, illegitimate, we contend - while joining in NCRC's comments, see below. On November 6 at 5 pm, before any midterm elections results came in, Fair Finance Watch filed comments at deadline with Otting's OCC, on Wilmington Savings Fund Society (WSFS) Bank's application to acquire Beneficial Bank in Philadelphia and closed 30 branches, despite WSFS' disparate lending record: "This is a timely first comment opposing and requesting an extension of the OCC's public comment period on the Application by WSFS Bank to Acquire Beneficial Bank. In the the Wilmington MSA in 2017, WILMINGTON SAVINGS FUND SOCIETY, FSB (WSFS Bank) had a denial rate for the home purchase loan applications of African Americans that was 5.48 times higher than for whites - an outrage, significantly more disparate that other banks in the market. For Latinos, WSFS Bank was and is worse, with a denial rate for home purchase loans 7.43 times higher for Latinos than for whites.
   This is not a lending record and pattern to impose on Philadelphia. And consider this: if approved, WSFS “plans to close 30 WSFS and Beneficial Bank offices, a quarter."
   See, “WSFS bosses Mark Turner and Rodger Levenson plan to close 30 of the combined companies’ 120 branches and eliminate around 350 of their 2,100 jobs.”
   There is more to say, and there are more markets. But concerned as we are about the OCC seeming to take outrageous disparities even less seriously than before, we ar timely submitting this one, for your action. This is systematic redlining; this proposed acquisition could not legitimately be approved and WSFS Bank should be referred for prosecution for redlining by the Department of Justice and the CFPB. But will today's OCC do it? The branch closings provides a second ground for the requested evidentiary hearing." What will Otting's OCC do? On October 17, yet more on Otting's assault on the CRA became known. He has taken to devaluing or lumping together and not putting in the docket or online the comments of community groups, calling them mass comments or form letters - when he himself not only solicited mass comments for the OneWest - CIT merger from which he personally profited, but even got some fraudulent comments. Inner City Press / Fair Finance Watch submitted the documents obtained under FOIA into the record before the OCC. Now, on a ten day delay, the OCC has put into the file a cursory memo of its October 12 meeting with bankers ranging from Citigroup (Lloyd Brown and Devika Murray Bacchus), Capital One (James Matthews), TIAA and Regions to Wells Fargo, Fifth Third, Huntington and PNC, among others. This has the trappings of transparency, but none of the substance. Topics of discussion are purportedly listed - but what was said, particularly by the OCC participants: Grovetta Gardineer, Senior Deputy Comptroller
for Compliance and Community Affairs
Beverly Cole, Deputy Comptroller for
Compliance Supervision
Donna Murphy, Deputy Comptroller for
Compliance Risk Policy
Allison Hester-Haddad, Counsel, Chief
Counsel’s Office
Daniel Sufranski, Law Clerk, Chief Counsel’s
Office. Listed but without further detail is, for example, "Logistical issues, including the interrelated nature of the issues raised by the ANPR, the timing of the rulemaking process, participation by the other federal banking
agencies, and whether concepts not discussed in the ANPR would remain under a new rule." So what was said? And where is the OCC's response to Inner City Press' previous FOIA request? We will have more on this. Inner City Press has previously commented that "These documents, which must be considered as part of this ANPR and any subsequent formal rulemaking, show that fraudulent comments supporting Otting's OneWest were submitted to the OCC - presumptively attributable to Otting.
The documents show that the OCC sought an explanation from Otting's / OneWest's outside counsel - and the OCC's and Justice Department's response to date reflect that no such explanation was ever provided. The OCC nevertheless approved the merger and even gave weight to the fraudulent comments.  But via the OCC and Regulations.gov websites, we are told "This count refers to the total comment / submissions received on this document, as of 11:59 PM yesterday. Note: Agencies review all submissions, however some agencies may choose to redact, or withhold, certain submissions (or portions thereof) such as those containing private or proprietary information, inappropriate language, or duplicate/near duplicate examples of a mass-mail campaign. This can result in discrepancies between this count and those displayed when conducting searches on the Public Submission document type." At least ten comments, all under the name Ceiba, were bundled as one. Otting is trying to have it both ways, or worse. Under him, the OCC has ignored the rare racial redlining settlement by Klein Bank, rubber stamping Old National's acquisition of the bank over the timely and detailed objection and public hearing request of Fair Finance Watch. Otting doesn't like public hearings.  In April 2018 his OCC approved an application by E-Trade Saving Bank which Fair Finance Watch had challenged based on the bank having no fewer than six states rare "Needs to Improve" CRA ratings. FFW noted rare Needs to Improve ratings for the entire states of Arizona, Colorado, Florida, Georgia, Michigan and Oregon, and an undeserved “Satisfactory” for New York. Otting's OCC, after the approval, helpfully contacted E-Trade Bank to tell it that upon (Otting's) reflection, it was no longer even subject to the Community Reinvestment Act. Another institution was similarly contacted - the OCC under Otting is going through its roster of banks seeing which ones it can "free" from CRA even if they hadn't requested in. In one case, some in the bank still didn't want Otting's freedom and move more business into the bank to get a second reversal of Otting's orders. But it shows where Otting is coming from, beyond the unexplained comment-fraud for which he should be recused. Inner City Press on October 11 raised the E-Trade (and another bank) issue into the record on the Advanced Notice of Proposed Rulemaking. But, Otting being Otting, his OCC denied expedited processing for Inner City Press' Freedom of Information Act request bout his deregulation move, ruling that "You requested all records in the OCC's possession concerning the applicability of the Community Reinvestment Act to - or exemption there from - any affiliate of E-Trade or Bank of America California NA for the time period of October 11, 2016 to October 11, 2018. You also requested expedited processing of your request on the basis that the ANPR on CRA is open through November 19, 2018. Your request for expedited processing does not meet the criteria provided for in 5 U.S.C. 552(a)(6)(E) and Treasury disclosure regulations at 31 C.F.R. 1.5(e)." And that regulation... requires a formal certification. So Inner City Press has appealed: "As a  a person primarily engaged in disseminating information, I am appealing the denial of expedited processing of my FOIA request, summarized by the OCC as for all records in the OCC's possession concerning the applicability of the Community Reinvestment Act to - or exemption there from - any affiliate of E-Trade or Bank of America California NA for the time period of October 11, 2016 to October 11, 2018.
...The OCC under Joseph Otting's actions to try to find banks to exempt from CRA outrageous and something on which there is an  urgency to inform the public concerning actual or alleged Federal Government activity. As noted in my request, this is particularly the case given the OCC's unilateral moves regarding the CRA. I declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge and belief. Executed on October 16, 2018." Watch this site. Many more are resisting Otting, but Federal Reserve Bank of Cleveland President Loretta J. Mester on October 3 said that "the OCC, a part of Treasury, has put out an advance notice of proposed rule-making (ANPR) seeking comment on ways to modernize the CRA regulations. The Federal Reserve is also undertaking efforts aimed at ensuring that the CRA regulations continue to meet the goals of the legislation amid the evolving financial services environment" - with these as her footnotes for that: "Brainard, Lael, “Community Development in Baltimore and A Few Observations on Community Reinvestment Act Modernization,” Baltimore, Maryland, April 17, 2018a and Brainard, Lael, “Keeping Community at the Heart of the Community Reinvestment Act,” New York, NY, May 18, 2018b. Both of those Brainard speeches were before Otting's proposals. And since? Well, the Fed after comments from FFW and NCRC has asked Synovus, "Synovus Bank received a “Needs to Improve” rating in the Tennessee state assessment area for the service test. Describe how Synovus Financial is addressing, or has addressed, this rating." That's on its now protested application to the Fed to acquire FCB Financial Holdings, Inc. (“FCB Financial Holdings”) and thereby indirectly acquire Florida Community Bank, N.A. In the OCC's ANPR docket file is the President of  First National Bank & Trust in Elk City, Oklahoma who writes, "I firmly believe that this form of oversite was meant for metropolitan areas and banks with multiple branches. There’s got to be a better way of monitoring and locating those banks that aren’t helping the population it serves. I would be surprised to find there are very many banks that fail the CRA examination." It's called grade inflation. On September 29 The Intercept has dug into it, citing FFW's formal request that Otting recuse himself - and so here now are some of the Freedom of Information Act documents. On October 2 in the Senate Banking Committee, Otting insisted he is not trying to weaken the CRA; he called the ANPR an "Advanced Notice of Public Rulemaking" instead of Proposed. He said he met with 1100 individuals - still undisclosed - and expects five to ten thousand comments on the ANPR. (So far there are 33 listed but only 29 visible). Senator Sherrod Brown began by asking him indirectly about the blogs at CFPB of Eric Blankenstein. We'll have more on this. And this - as obtained by Inner City Press and fellow NCRC member CRC, here are more of the documents, for (this time) free download on Patreon.

 On October 1 Inner City Press / Fair Finance Watch submitted the documents obtained under FOIA into the record before the OCC, stating that "These documents, which must be considered as part of this ANPR and any subsequent formal rulemaking, show that fraudulent comments supporting Otting's OneWest were submitted to the OCC - presumptively attributable to Otting.
The documents show that the OCC sought an explanation from Otting's / OneWest's outside counsel - and the OCC's and Justice Department's response to date reflect that no such explanation was ever provided. The OCC nevertheless approved the merger and even gave weight to the fraudulent comments. On this record we again insist that Otting be recused from this ANPR and any related rulemaking or proceedings. We have other substantive concerns about this ANPR but view the question of Mr Otting's recusal (and of with whom he has met, on which Inner City Press has another long-pending FOIA request) as threshold matter than must be addressed as quickly as possible."

 The FOIA document as provided by the OCC and US Department of Justice reflect that the OCC never followed up on its lone (and wan) question to Otting's counsel as Sullivan & Cromwell to explain the fraudulent comments. Nor did this counsel respond to questions from The Intercept's David Dayen, who reports: "AFTER A YEARLONG effort to obtain the information, which included ongoing litigation, the OCC made available 15 pages. They contain emails to and from David Finnegan, an OCC senior licensing analyst who was a point of contact for public comment on the merger.

Four individuals contended in emails to Finnegan that they never sent the comment letters supporting the merger. “This is to bring to your attention that I received an email from the office of OCC regarding a subject I am completely unaware of,” wrote one individual (the OCC redacted the emailers’ identifying information). “I DID NOT send the email below that you responded to. This is a fraudulent use of my email account.” The other three sent similar complaints.

The letter of support attributed to these individuals was identical to the letter posted at the OneWest Bank website.

Matthew Lee of Inner City Press expressed outrage at the fake comments. “There’s nothing more offensive of speech rights than artificially presenting someone as saying something you don’t believe,” Lee said. “You have the right to be silent. It’s so beyond the pale.”

FOIA Finds: OneWest CIT Ban... by on Scribd

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