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Financial Services Law Insights and Observations


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  • FDIC, Fed, and OCC announce 2024 CRA-eligible distressed and underserved areas

    On July 12, the FDIC, Fed, and OCC released a list of distressed or underserved nonmetropolitan middle-income areas eligible for CRA credit. The list identified regions where banks’ revitalization or stabilization activities can receive CRA consideration, reflecting local economic conditions like unemployment, poverty and population changes. The designations will be valid for 12 months, with a one-year lag period for areas previously included in 2023, but not in the current list. Past lists and criteria for designating these areas can be found here

    Bank Regulatory FDIC Federal Reserve OCC CRA

  • Fed’s 2024 stress test results show a robust banking system

    Recently, the Fed released the 2024 Federal Reserve Stress Test Results and found that the tested banks have “sufficient capital” to absorb losses and weather a recession while staying above minimum capital requirements. The Fed tested 31 large banks this year and found those banks have enough capital to absorb a projected $685 billion in losses and remain above their minimum capital requirements. While the Fed found a 2.8 percent decline in the aggregate capital ratio (greater than last year’s decline of 2.5 percent), the decline was within the range of recent stress tests. The Fed attributed this 2024 change to three factors:

    1. The Fed projected greater credit card losses due to a substantial increase in banks’ credit card balances, along with higher delinquency rates. In the stress test, banks were projected to lose $175 billion on credit cards, which was 17.6 percent of credit card balances.
    2. The Fed projected higher corporate losses due to banks having riskier corporate credit portfolios.
    3. The Fed projected a decline in net revenue. The Fed found that noninterest expenses (compensation, real estate, etc.) continued to increase, while noninterest income sources (e.g., investment banking fees) declined significantly.

    Despite these factors, the Fed concluded that large banks could still lend to households and businesses while remaining “well above” minimum capital requirements.

    Bank Regulatory Stress Test Capital Requirements Credit Cards

  • OCC releases June CRA evaluations for 21 institutions

    Recently, the OCC released its Community Reinvestment Act (CRA) performance evaluations for June. The OCC evaluated 21 entities, including national banks, federal savings associations, and insured federal branches of foreign banks. The assessment framework has four possible ratings: Outstanding, Satisfactory, Needs to Improve, and Substantial Noncompliance. Of the 21 evaluations reported by the OCC, 14 entities were rated “Satisfactory,” six entities were rated “Outstanding,” and one was rated “Needs to Improve.” A full list of the bank evaluations is available here. In the CRA FAQ , the OCC details how it evaluates and rates financial institutions based two categories: first, the institution, examining factors such as capacity, constraints, business strategies, competitors, and peers, and second, the community it serves, analyzing its demographic particulars, economic data, and the availability of lending, investment, and service opportunities.

    Bank Regulatory OCC CRA FAQs

  • FDIC issues May 2024 enforcement actions

    Recently, the FDIC released a list of administrative enforcement actions taken against banks and individuals in May 2024. During that month, the FDIC made public 15 orders consisting of: a combined personal consent order and order to pay a civil money penalty (CMP); “one combined order of prohibition from further participation, and compromise and waiver of order to pay a CMP; seven consent orders; three CMP orders; two orders terminating consent orders; and one order terminating deposit insurance.”

    Included was a consent order with an Oklahoma-based bank alleging the bank engaged in “unsafe or unsound banking practices and violations of law or regulation.” Under the order, the bank must allow its board to participate more in the bank’s affairs, notify the FDIC if any directors or executives resign, and create a business plan and a capital plan, among others. Also included was a consent order with an Arkansas-based bank, alleging the bank engaged in “violations of law or regulation” relating to RESPA, as implemented by Regulation X; HMDA, as implemented by Regulation C; Section 5 of the FTC Act; and the FCRA and Section 1022.54 of Regulation V. The FDIC ordered the bank to pay a civil money penalty of $1.5 million. The banks neither admitted nor denied the allegations.

    Bank Regulatory FDIC Enforcement Bank Compliance RESPA FCRA

  • Fed enters into agreement with bank as part of an OCC enforcement

    On June 25, the Fed announced the execution of a written agreement with a registered savings and loan holding company, and its affiliate banks, to oversee its consent order requirements deriving from an OCC consent order from October 2023. Under the agreement, the bank will have 60 days to prepare a written plan to the Fed to strengthen board oversight and must include actions to (i) maintain effective risk management programs, (ii) ensure those risk management programs will be managed appropriately, (iii) monitor adherence to applicable laws and regulations, (iv) improve supervision of, and maintain control over, operations and activities, and (v) improve the comprehensiveness and quality of reports reviewed by the board. The bank will also have 60 days to submit a written strategic plan and budget to the Fed that will outline the firm’s short- and long-term strategic goals, the firm’s financial condition, a budget for the remainder of 2024, and a budget review process. Additionally, the Fed will require the banks to submit a written statement on their planned uses of cash for the remainder of 2024.

    Bank Regulatory OCC Federal Reserve Consent Order Enforcement

  • Colorado’s DIDMCA opt-out blocked by preliminary injunction

    On June 18, U.S. District Court of the District of Colorado granted a motion for preliminary injunction filed by several financial services trade associations, enjoining Colorado from enforcing Colo. Rev. Stat. § 5-13-106 with respect to any loan made by the plaintiffs’ members, to the extent the loan is not “made in” Colorado. As previously covered by InfoBytes, the enjoined provision, contained in Section 3 of Colorado HB 23-1229 and scheduled to become effective on July 1, opted Colorado out of Section 521 of the Depository Institutions Deregulation and Monetary Control Act (DIDMCA) which allowed state-chartered banks to export rates of their home state across state borders. Trade groups sued before this law went into effect (covered here), with the FDIC writing a brief in support of the Colorado Attorney General (here).

    The court’s decision turned on its interpretation of DIDMCA Section 525, which allowed states to enact laws opting loans “made in” the enacting state out of Section 521, the provision granting insured state banks the same rate exportation authority as national banks. In support of their motion, the plaintiff trade associations argued that loans to Colorado residents by insured state banks located in other states were “made in” the bank’s home state or the state where key loan-making functions occur. Colorado disagreed, contending that a loan was “made in” both the borrower’s state and the state where the lender is located for purposes of applying the DIDMCA opt out provision.

    In granting the preliminary injunction, the court found the argument that only a bank “makes” a loan was “more consistent both with the ordinary colloquial understanding of who ‘makes’ a loan, and, more importantly, with how the words ‘make’ and ‘made’ are used consistently throughout the text of the Federal Deposit Insurance Act, including the [DIDMCA] amendments.” The court explained that “the answer to the question of where a loan is ‘made’ depended on the location of the bank, and where the bank takes certain actions, but not on the location of the borrower who ‘obtains’ or ‘receives’ the loan.” Although the court noted that agency interpretations did not address directly how to apply Section 525 of DIDMCA, it found that “[t]o the extent the agency interpretations are helpful, they support the conclusion that in common parlance, a loan is ‘made’ by a bank and therefore where the bank is located and performs its loan-making functions” (italics omitted).

    Colorado has 30 days to appeal the district court’s decision to the Tenth Circuit.

    Bank Regulatory Courts State Legislation DIDMCA Interest Rate UCCC

  • OCC report outlines key risks in the federal banking system

    On June 18, the OCC published its Semiannual Risk Perspective for Spring 2024, a report assessing the health and risks of the federal banking system focusing on threats to the safety and soundness of banks and their compliance with applicable laws and regulations. In its release about the report, the OCC stated that the banking system remains sound, but recognized potential consumer difficulties due to a slowing labor market, high interest rates, and “sticky” inflation. The report encouraged financial institutions to improve continuously risk management processes, stating that it was “crucial that banks establish an appropriate risk culture that identifies potential risk, particularly before times of stress.” The information in the report was based on data up to December 31, 2023, and included a special topic, operating environment, bank performance, and trends in key risks.

    According to the report, key risk themes included:

    1. Credit Risk: There was an increase in credit risk, particularly in the commercial real estate sector. The office sector and some multifamily properties were under stress from higher interest rates and structural changes. Loans in these sectors, especially interest-only loans due for refinancing in the next three years, pose a heightened risk.
    2. Market Risk: Banks were experiencing pressure on net interest margins due to deposit competition, which “may be nearing a peak.” There were challenges in risk management from potential future interest rate changes and unpredictable depositor behavior. The use of wholesale funding was growing, though more slowly, and banks face elevated unrealized losses in their investment portfolios, despite improvements.
    3. Operational Risk: The operational risk was high due to the evolving nature of the banking environment and cyber threats, including ransomware, were a continued threat. Digitalization and the adoption of new products and services, along with third-party engagement, increased complexities and risks. Fraud incidents and the importance of fraud risk management were also emphasized.
    4. Compliance Risk: Banks must navigate a dynamic environment with evolving customer preferences, and compliance risk management frameworks need to be adequate and adaptable to changes in banks' risk profiles. Fraud remained a significant risk, with check and wire fraud, and peer-to-peer transaction scams becoming more common. The OCC will continue to evaluate banks' CRA performance.

    The report emphasized that these risks can be interrelated, noting that a “stress event could manifest through operational and/or financial events and have institution-specific or sector-wide impacts,” and that “[e]ach stress event may vary (e.g., operational, liquidity, credit, compliance, and other) and resiliency implications need to be proactively considered.”

    Bank Regulatory Federal Issues OCC Risk Management

  • OCC’s Liang discusses bank vulnerabilities and floats policies

    On June 24, the U.S. Under Secretary for Domestic Finance, Nellie Liang, delivered a speech at the 2024 OCC Bank Research Symposium addressing depositor behavior, bank liquidity, and run risk. Liang discussed the spring 2023 bank runs that led to exposures in financial vulnerabilities, and highlighted how technologies and social media “amplified” these vulnerabilities as depositors withdrew their monies rapidly. When discussing the evolution of the banking model, Liang shared that, despite the spring 2023 events, deposits have steadily grown relative to GDP over the past 40 years, displaying banks’ continued benefit to provide liquidity services. Nonetheless, loans and credit lines to non-bank financial intermediaries (NBFIs) have increased.

    Among other things, Liang stressed the need for supervisors and regulators to effectively monitor core vulnerabilities, like those that were the “key drivers” of recent runs and called for banks to have the operational capacity to borrow from the discount window. She further highlighted the need to increase transparency of Federal Home Loan Bank (FHLB) practices, noted how the proposal for pre-positioned collateral requirements at the discount window was promising, but raised ultimately questions regarding the type and amount of collateral required, and raised the need to re-examine deposit insurance coverage.

    Bank Regulatory OCC NBFI

  • New York Fed releases paper on nonbanks reliance on banks

    On June 20, the New York Fed released an article highlighting a recent study that revealed nonbank financial institutions (NBFIs) growth was reliant on banks for funding and liquidity insurance. The article observed that while this relationship between banks and NBFIs may result in overall growth and a wider access to financial services, it could add risks seen during financial strains like the 2007-2008 financial crisis and the Covid-19 pandemic. In response to these stressful periods, NBFIs have turned to banks, and later government agencies, for liquidity. And because the asset holdings of banks and NBFIs have become similar, any forced asset sales by NBFIs could trigger a chain reaction leading to market disruptions. According to the authors of the study, a holistic approach to the bank-NBFI relationship will be necessary to manage systemic risk and maintain financial stability.

    Bank Regulatory Federal Issues New York Federal Reserve Nonbank Liquidity

  • OCC proposes revisions to its recovery planning guidelines

    Agency Rule-Making & Guidance

    On June 24, the OCC proposed revisions to its recovery planning guidelines—plans for how to respond quickly and effectively to, and recover from, the financial effects of severe stress on large financial institutions. Considering the increase in withdrawals of uninsured deposits in March 2023, the OCC will expand the application of its guideline requirements to insured national banks, federal savings associations and federal branches with average total consolidated assets of $100 billion or more.

    The proposed revisions also change “average total consolidated assets” as defined in the guidelines to clarify that the calculation would be based on the “total assets” line of the Call Report, not the “average total consolidated assets” line of the Call Report. The OCC said this may affect the quarter in which a bank becomes a covered bank.

    The OCC further proposed to incorporate a yearly, risk-based testing standard of recovery plans to include stress scenarios that ensure “the plan’s triggers appropriately reflect the covered bank’s particular vulnerabilities and will, in practice, provide the covered bank with timely notice of a continuum of increasingly severe stress, ranging from warnings of the likely occurrence of severe stress to the actual existence of severe stress.” Testing should ensure that management and the board can confirm the bank's readiness to execute identified strategies under stress. The OCC will require that a covered bank’s recovery plan will consider appropriately both financial risk and non-financial risk (including operational and strategic risks), as well as be integrated into its risk governance functions.

    Covered banks will have one year from the effective date of the amendments to comply with the new requirements. Comments must be received 30 days after publication in the Federal Register.

    Agency Rule-Making & Guidance Bank Regulatory Federal Issues OCC


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