August 2023 OBA Legal Briefs

• HMDA Analysis
• Personal Responsibility
• Forms Update

HMDA Analysis

By Andy Zavoina

If your bank is a reporter under the Home Mortgage Disclosure Act (HMDA), you may well have some work to do if you have not already done some or all of this. On June 29, 2023, the Federal Financial Institutions Examination Council (FFIEC) announced the availability of data on 2022 mortgage lending transactions reported under HMDA. This HMDA data is the largest source of publicly available data on mortgage lending in the United States. If your bank is reporting, your data is here. Other banks in your geographic areas who report also have data here. Banks outside your area which may be similar to yours, yes, that data is here too. It is all available and can more easily than ever before be analyzed. This article is a discussion on why — and a little bit of how — to analyze your data and that of your peer banks.

Years ago, the system was far less automated than we have today. When the HMDA data came out it was sent to central repositories. In my case it was held as reference material in the local public library which happened to be a few blocks from the main branch I was working out of. It was set up by Metropolitan Statistical Area (MSA) and was a treasure trove if you knew what you wanted to do with it.

When teaching compliance management, I often say compliance is not a cost center as it is often described, but a resource because it touches so many areas in the bank. In this case you are touching on loan production, and you can compare your bank’s production against that of your peers. Management likes to know how the competition is doing and you can compare apples to apples, at least as far as HMDA reportable loans are concerned.

Your Marketing area can use this data to see what type of applicants for HMDA loans it is attracting and where these applicants may be from as well as where they want to move to. Consider the ways you can use this data. You can easily build a picture of who your applicants are and where they live. That means you also know the areas they are not living in, and this is what can help Marketing redirect advertising campaigns if those are areas you need or want to market to. This information is data gold for Marketing and management as well, and you have it all available right now.

You can plot where the mortgage loans (so long as they are HMDA reportable, so not everything, but a lot) are not just for your bank, but for all those peer lenders in your area as well. And you can reach farther if desired. One of my banks was a military bank. We had borrowers literally all over the world and, while it was less common than say a car loan, we did some mortgage financing all over the country. Other military banks may be doing the same. It is often difficult to get a lot of data about your peer banks when they happen to be across the country from you, but as a military bank, they were our peers, and it was important to understand how my numbers compared to theirs. We recognized that there were different markets and quite different conditions, yet when it came to the Community Reinvestment Act (CRA) this was a comparison you wanted to be aware of. Were our numbers close to our peers or far different – and in either case why? When you compare your loan volumes to your peers, and when you understand the different lending strategies of these other lenders, it helps set benchmarks and goals as well as to understand your own loan patterns.

Again, when you know to whom you are lending, you also know those to whom you are not lending. Are your numbers good or bad when you look, for example, at racial demographics? When you ask in the loan committee meeting why (as a hypothetical) there were so few loans to Blacks and the response is there are few Black applicants applying, it sets off questions such as:

• Are we marketing to areas of a majority minority?
• Are we trying to reach this demographic in targeted ads? Why or why not?
• What percent of our applicants were Black?
• What percent of our Black applicants were approved, denied, withdrawn, or closed for other reasons?
• And if there is a level of complacency with those figures, next compare yourself to those peer banks’ lending in the same area, to the same would-be home buyers.

When it comes to fair lending justifications of your bank’s actions, read fair lending enforcement actions, and learn how regulators and the Department of Justice (DOJ) attorneys compare the results of your bank to peer banks. As one example, consider when the Consumer Financial Protection Bureau (CFPB) and the DOJ took action against Trident Mortgage Company LP (Trident) under the Fair Housing Act (FHA), the Equal Credit Opportunity Act (ECOA),  and Regulation B, as well as the Consumer Financial Protection Act of 2010 (CFPA) (also referred to as Unfair, Deceptive, or Abusive Acts or Practices (UDAAP)) to remedy discrimination in Trident’s mortgage lending. There were many problems with Trident, and we covered many of the problems in last April’s edition of the Legal Briefs. Here is a snippet from that edition to emphasize the points of this HMDA analysis.

Trident received 80 percent of its mortgage applications for properties located in that MSA its defined as its market area. But the actual loan distribution pattern showed a disproportionate number in the majority-white areas. As a foundation there was the selection of office locations and limited outreach and marketing which led to these lending patterns which are confirmed by HMDA data. One must ask, “was this a choice?” When comparing HMDA data, Trident significantly underperformed its peer lenders in generating home mortgage applications from majority-minority neighborhoods and the disparity between the rate of applications generated by Trident and by its peer lenders from majority-minority neighborhoods and high-minority neighborhoods was both statistically significant.

Of the nearly 31,000 applications on the HMDA reports from 2015 through 2019, 12 percent came from majority-minority areas. Peer lenders generated 21.5 percent of their 135,000 applications. The disparity was seen year after year. In in high-minority neighborhoods, Trident showed 4.1 percent of its applications as coming from high-minority areas, compared to 10.8 percent of its peer lenders.

Trident significantly underperformed its peer lenders in making home loans in majority-minority neighborhoods as well. The complaint notes that, “…of the 22,960 HMDA-reportable loans Trident made for single family dwellings from 2015 through 2019 in the Philadelphia MSA, 11.7% came from residents of majority-minority areas. By contrast, Trident’s peers made 16.2% of their 50,060 loans from these same majority-minority neighborhoods.” And only 3.7 percent of Trident’s loans were made in high-minority areas, while peer lenders made 6.9 percent of their loans in these same areas.

Enforcement actions are a good “go by” for the type of analysis done when lending is questionable. CRA Public Evaluations are another resource not only for key analytics, but also for comments as to what was good, bad and ugly. Remember that HMDA analysis is a basis for fair lending examinations which are a foundation for your next CRA exam. When you can identify weaknesses in your numbers, you can proactively impose corrective actions, and this demonstrates to examiners reviewing your bank’s lending activity and your compliance program that you are aware of and managing the processes.

The data available will help show whether your lenders and therefore your bank are serving the housing needs of the communities you serve as your market area. It includes information that helps management make recommendations to the board on decisions and policies and draws attention to your lending patterns that could be discriminatory. Your bank, as a HMDA filer, recorded up to 110 different data points for each HMDA applicable mortgage application received on a Loan Application Register (LAR). What you have in your bank is your complete LAR. In March, the FFIEC provided your bank with a modified, or sanitized, LAR. The modified LAR data provides information from the most current HMDA submission that was required to be submitted essentially a month earlier, by March 1, of each year. This modified LAR is available to the public, and to your bank and your peer banks who are also evaluating your bank’s performance. Section 1003.5(c) of Regulation C requires that you post, “a written notice that clearly conveys that the institution’s loan/application register, as modified by the Bureau to protect applicant and borrower privacy, may be obtained on the Bureau’s Web site at www.consumerfinance.gov/hmda.” The publicly released data excludes or modifies several data points reported by all the institutions submitting LAR data, such as the universal loan identifier, the date the application was received or the date shown on the application form, the address of the property, the credit score or scores relied on in making the credit decision, and any applicant or borrower ethnicity free-form text field. In theory this makes it difficult to review entries and identify a particular applicant and therefore data about that applicant which is protected by privacy laws. Others have pointed out faults in this system as deeds are public documents and with a little work a knowledgeable person can connect many dots. Connecting those dots is not the point of this article, but rather what you can do with the LAR data to analyze the mortgage lending picture your lenders are painting and how you compare to peer banks.

So, where would you find HMDA data now that the old central repositories are automated? HMDA data is available at https://ffiec.cfpb.gov/. You can also find a HMDA Data Browser at https://ffiec.cfpb.gov/data-browser/ which will help you filter any and all of the LARs that were submitted. In June 2022 the CFPB published, “A Beginner’s Guide to Accessing and Using Home Mortgage Disclosure Act Data” which you can find online here, https://files.consumerfinance.gov/f/documents/cfpb_beginners-guide-accessing-using-hmda-data_guide_2022-06.pdf. In addition to background HMDA information, this is a step-by-step guide on how to filter the data to extract just what you want to know. In computer coding there is an old adage, garbage in – garbage out,” meaning you can get out what you put in. Your LAR has that “up to 110 data points” mentioned already. Data for your peers is modified information but as said earlier, it is still especially useful to management, Marketing, those working on your bank’s strategic plan, everyone analyzing fair lending and certainly Compliance. A sound recap and analysis of the data available will be a compliance value-added exercise to the bank for the information you need to know anyway.

Review the Beginner’s Guide mentioned just above as it takes a user through the steps to apply the filters and it has additional instructions with graphics to help you use Excel and Pivot Tables to get the most out of your analysis. In total this is a 29-page PDF that will help ignite your analytical curiosity and provide needed information to your bank. Compare your results, especially those government monitoring demographics, to the breakdown for your market areas. That is, if your area is X percent white, Y percent Black and Z percent Asian, how do your applications correlate to those numbers, and your approved loans, and do not forget the denials and withdrawn applications. Based on the HMDA data tables available annually from the CFPB and ideas of key data points gleaned from enforcement actions and CRA Performance Evaluations, choose the data you want to focus on.

While you can do peer comparisons only annually, you can track your bank’s progress using quarterly updates to further refine corrective actions. Then determine how your numbers compare to peers. Does this analysis indicate strengths, weaknesses, and areas upon which you can improve? The lending data you arrive at should influence or confirm what you are doing with marketing activities, lending policies, and exceptions being made, and may shed light on complaints.

Here are some high-level observations about the 2022 HMDA data that are of interest.

• The 2022 LAR data includes information on 14.3 million home loan applications.
• 5 million applications (82 percent) were for closed-end credit, while 2.5 million (18 percent) were for open-end products.
• As to the aggregate demographics of the borrowers’ race and ethnicity, the portion of closed-end home purchase loans made to Black borrowers rose from 7.9 percent in 2021 to 8.1 percent in 2022. The portion made to Hispanic borrowers decreased slightly from 9.2 percent to 9.1 percent, and those made to Asian borrowers increased from 7.1 percent to 7.6 percent.
• In 2022, Black and Hispanic applicants experienced denial rates for home purchase loans of 16.4 percent and 11.1 percent respectively, while the denial rates for Asian and non-Hispanic White applicants were 9.2 percent and 5.8 percent, respectively.

After management has had an opportunity to study the data, your board of directors should receive a high-level summary of where you are and where the data will be taking you. This is an opportunity to influence the confidence they have in your abilities and the resources available for your compliance management program.

Personal Responsibility

By Andy Zavoina

If you have taught regulatory requirements before, you likely mentioned the potential penalties for noncompliance. As an example, Reg B has penalties for noncompliance in § 1002.16(b) that include Actual damages in individual or class actions – without a limit, and Punitive damages in individual or class actions, where liability for punitive damages is limited to $10,000 in individual actions and the lesser of $500,000 or 1 percent of the lender’s net worth in class actions.

By the time an instructor gets to this part of the presentation the listener’s eyes are glazing over and they hear Charlie Brown’s teacher saying, “never has happened, don’t worry, the bank gets penalized not the employee or officer.” But that is not always the case, and it is often wise to remind everyone of that, from the newest teller to that longest-standing director on the board. Everyone in the bank is responsible for ethical behavior and compliance. And while everyone has a boss they report to, I remind officers of a bank that they work for the bank, and not necessarily for their boss. This is especially important for those in the role of auditor and those responsible for compliant and ethical performance evaluations. Just as in the military, we follow instructions, but we also trust that no “illegal” orders will be given.

It may have seemed harmless initially, but let’s look back at Wells Fargo for a moment. A few years ago, Wells Fargo’s troubles really came to the forefront when the bank was accused of, among other things, opening accounts for consumers without those consumers’ requests or consents. At the center was a push to meet lofty sales goals. In September 2016, the bank agreed to pay a $185 million fine and return $5 million in fees wrongly charged to customers. The problem originated with bank employees allegedly opening more than two million deposit and credit card accounts without customers’ permission. Wells Fargo’s ex-CEO John Stumpf apologized during a congressional hearing in which he accepted the blame saying, “I accept full responsibility for all unethical sales practices.”  In the long term, however, 5,300 Wells Fargo employees lost their jobs because of the practices employed.

A personal observation of mine was that because the employees created the accounts without authorization and moved deposits to and from the accounts to activate them, I could have seen a case for identity theft and fraud against those employees. Thankfully, I never heard of that happening and the root of the problem was not the employees’ actions, but the push to meet goals and the potential that “illegal orders” were given or at least insinuated. Here are three examples of how unethical sales practices sprang from minor unethical compromises.

1. A new accounts representative is under pressure to meet sales goals and pushes a customer to add a credit card, even though the rep knows it’s not in the customer’s best interest and was not requested.
2. As the month progresses, the rep is short of the goal and asks friends and family to open new accounts. These accounts served one purpose – to inflate account production numbers. In reality, the bank staff spent time programming these new accounts which were closed shortly thereafter, and the cost was greater than the income that was never produced.
3. With the account production goal still out of reach, the rep opens accounts without asking customers and transfers a small amount of money. These accounts are also closed shortly after opening and the money is transferred back. Customers may question what happened but when they see the funds transferred back, why frustrate themselves by calling the bank to complain and inquire as to what happened?

But to be clear, Wells Fargo was not alone, they were just the first big bank to gain national coverage for unethical and illegal practices surrounding creating deposit and credit accounts that were not requested by the consumer’s whose names they carried. Fifth Third was accused of this and In March 2020 the CFPB initiated a suit against that bank. The complaint alleged that Fifth Third’s cross-selling practices, which included sales goals and an incentive-compensation program, caused Fifth Third’s employees to open new consumer accounts for existing customers without their knowledge or consent. The CFPB alleged that such conduct in certain respects was unfair and abusive (yes, a UDA(A)P issue) and that issuing unauthorized credit cards and opening deposit accounts without required disclosures violated Reg Z and Reg DD.

Fast forward to July 2023, when the OCC and CFPB ordered Bank of America to pay $100M in consumer redress and $150M in fines for and an out-of-control incentive program that resulted in unauthorized account openings, credit reports, etc., which is a basic rehash of the problems at Wells Fargo and Fifth Third. These were not the only issues, as the Bank of America action also cites junk fees relating to multiple presentments of NSF items and for mismanagement of credit card systems. As it typically happens, many regulatory and ethical violations are part of a snowball that grows as the investigation continues and additional violations are uncovered or found to have evolved, such as the failure to make disclosures on an account that was fraudulently opened anyway.

Let’s look closer at one case of a former executive involved in the Wells Fargo case. Carrie Tolstedt was an executive, or THE executive, accused of overseeing programs that resulted in the millions of fraudulent customer accounts at Wells. In March 2023, she agreed to plead guilty to criminal charges which could impose actual prison time. In her agreement with the court, she will serve a 16-month prison sentence for obstructing regulators’ investigations into abusive sales practices that culminated in the bank paying what has turned into billions of dollars in fines. Tolstedt also agreed to pay a $17 million fine in a separate settlement with the OCC that also bans her from working again in the banking industry. BankersOnline covered this in its Top Story at https://www.bankersonline.com/topstory/173048.

Tolstedt was not alone in the list of executives who fell as a result of the new account production goals that were virtually unattainable. These goals were emphasized with a slogan of “eight is great.” That was, each customer should have eight separate accounts at the bank. Why eight? It was said that was selected because it rhymed with “great.”

Take a moment to look at your product offerings and try to determine what sales techniques you could use to accomplish this. Now reconsider it as if your job is on the line as it was for the 5,300 former employees who talked of supervisors screaming at them to meet the goals. They were told if they could not meet their goal, they would be working at McDonald’s. Those missing goals would have what was essentially an after-school detention and were often tasked with “call sessions” on Saturdays. Presumably, these sessions were to make calls and hone sales skills. Employees in many cases either reverted to unethical and illegal techniques or were embarrassed in front of their peers, demoted, or fired. In the three-step process to meet goals, consider that some new accounts reps were able to meet goals. Now the pressure was up because others had to employ the same tactics. And that culture fed on itself and has caused huge fines to be imposed as well as direct personal responsibility. Goals should be realistic, and rules should be well known and to police the rules, controls must be in place.

Forms Update

By Andy Zavoina

We are in the heat of summer as this edition of Legal Briefs goes to the presses, but it is a perfect time to get a pesky change out of the way. Often this might be something to do at year end, but as some banks prepare for 1071 changes, and the normal year-end tasks followed by HMDA submissions will all be coming about at the same time, why wait? These changes impact Reg B’s Adverse Action Notices, some Fair Credit Reporting Act disclosures, and a bit of Reg E. There were several others, but we will cover in detail what impacts our banks.

If you use preprinted forms that will change, you will want to use up any supply and not reorder any bulk that may not be used by the mandatory compliance date. You will want to get the new addresses on your next order. And if you need to have a forms vendor program the changes, well, they will be busy at year-end and beginning of 2024 too, so just get this out of the way so you can enjoy summer.

Change management is what I’m speaking of and notices – disclosure changes. On March 20, 2023, the CFPB published a Final Rule in the Federal Register. Look for Vol. 88, No. 53, Monday, March 20, 2023, and page 16531 if you want all the details. The “Regulations” pages on BankersOnline.com also reflect these changes. These were considered non-substantive corrections and updates. The “Cliff Notes” version of the changes simply tells you that some regulatory agencies have had address changes for notices you provide to your customers and those disclosures and notices need to be corrected. The effective date for optional compliance has passed. It was April 19, 2023, so you may comply now, but compliance with these changes is not mandatory until March 20, 2024. Again, why wait and risk this falling through the cracks?

Reg B and Adverse Action Notices
The most significant change for banks is under Reg B. Appendix A, which lists contact information for the CFPB, OCC, FDIC, National Credit Union Administration (NCUA), Federal Trade Commission (FTC), and other agencies. (The Federal Reserve is listed but did not change.) This contact information listed must be included in Reg B adverse action notices. This is separate from the FCRA disclosure many banks have combined onto the Reg B, adverse action notices. The two are called the same thing but have different disclosure rules and content. The FCRA notice on Reg B’s forms has not changed, although there is an FCRA change noted below.

The OCC regulated institutions should be showing the following:

Office of the Comptroller of the Currency
Customer Assistance Group
P.O. Box 53570
Houston, TX 77052

The FDIC regulated institutions should be showing the following:

Division of Depositor and Consumer Protection
National Center for Consumer and Depositor Assistance
Federal Deposit Insurance Corporation
1100 Walnut Street, Box #11
Kansas City, MO 64106.

The CFPB regulated institutions should be showing the following:

 Bureau of Consumer Financial Protection
1700 G Street NW
Washington DC 20552

And without change but for the record and accountability in case you want to check, the FRB regulated institutions should be showing the following:

Federal Reserve Consumer Help Center
P.O. Box 1200
Minneapolis, MN 55480

Interpretations
The CFPB also corrected its contact information in Reg B’s Appendix D, for the process for requesting official CFPB interpretations of Reg B. The same address below is applicable for Reg E interpretations. The difference between the old and new addresses was a change in the ZIP code.

A request for an official interpretation should be in writing and addressed to:

Assistant Director, Office of Regulations,
Division of Research, Monitoring, and Regulations,
Bureau of Consumer Financial Protection,
1700 G Street, NW
Washington, DC 20552

Fair Credit Reporting Act
In Reg. V and the Fair Credit Reporting Act (FCRA), the CFPB amended the model form in Appendix K for the “Summary of Consumer Rights” to correct the contact information for various agencies, including the OCC, FDIC, and NCUA. Those addresses are on the form itself. A Word version is in a link on the BankersOnline, Regulations page. Consumer reporting agencies must provide the Summary form when making written disclosure of information from a consumer’s file or providing a credit score to a consumer. Most importantly, this Summary must also be provided by Human Resources at your bank, before obtaining  an investigative consumer report (under 1681d(a)(1)), and with pre-adverse action notices for employment purposes (under 1681b(b)(3)). As Compliance and/or Internal Audit complete a periodic FCRA audit this is one of those potential “gotchas” you want to look at to ensure the procedures are correct for providing these notices if someone is denied employment or a promotion, as examples, based on a credit report.

Real Estate Settlement Protections Act
In Reg. X, the Real Estate Settlement Protections Act (RESPA), the CFPB has corrected its contact information in the definition of “Public Guidance Documents” in section 1024.2(b) and in the introductory section of Supplement I, which provides the procedure for requesting copies of public guidance documents from the CFPB and the procedure for requesting official CFPB interpretations of Regulation X.

Truth in Savings Act
In Reg. DD, and the Truth in Savings Act (TISA), the CFPB has corrected its contact information in Appendix C, which provides the procedure for requesting a determination from the CFPB regarding whether a state law is inconsistent with TISA and Regulation DD.

Truth in Lending Act
In Reg. Z, the Truth in Lending Act (TILA), the Bureau has corrected its contact information in Appendices A, B, and C which provide the procedures for requesting a determination from the CFPB regarding whether a state law is inconsistent with or substantially the same as TILA and Reg Z, the process for a state to apply to the CFPB to exempt a class of transactions from TILA and Reg Z, and the process for requesting official CFPB interpretations of Reg Z.  In Appendix J, the CFPB has corrected its postal address for requests to the CFPB for APR calculation tables and to add a URL on its website at which the tables can be accessed.