Story summarized from American Banker

NY’s Spitzer talks tough on OCC preemption of his lending probe

WASHINGTON - May 19, 2005 – Officials at the federal Office of the Comptroller of the Currency have apparently initiated a confrontation with New York’s Attorney General Eliot Spitzer over his investigation of practices in the mortgage lending field.

The OCC hasn’t yet taken any official action but. In a speech here Wednesday (5/18/05) Spitzer said that an official at the OCC had called his office to say his investigation was intruding on their jurisdiction.

That call could be the opening salvo of a turf battle over who gets to say what about regulating banks in the states. The OCC had previously been mum on the preemption issue.

In a speech at the Center for American Progress Spitzer took the gloves off: "Our investigation of whether or not banks are properly lending to minorities and women, they're trying to intercede on behalf of the banks, keeping us from getting the data we need. As recently as two days ago I got a phone call from the very top of the OCC saying, ‘We think you're preempting.' Well, I don't think we are, and we're going to find out in court someday."

As reported in American Banker (5/16/05), officials of nationally-chartered banks were nervous over the OCC’s reticence on the question of whether their banks should go along with Spitzer's investigation.

Mounting numbers of fair-lending complaints are apparently the motivation for Spitzer’s probe. Since March 31, when more detailed lending data became available under new Home Mortgage Disclosure Act rules, Spitzer's office has sent requests to several banks for information, including the newly reported details on mortgage lending.

"We're asking a whole bunch of different entities, who have different regulatory status, but there are certainly many that we've asked that we believe to be fairly within our regulatory purview," Spitzer said to reporters.

No one at the OCC directed a response specifically to Spitzer's comments, but a spokespersonn did say that after the Federal Reserve Board finishes checking the HMDA data, "we fully expect to look carefully at the data for the institutions we supervise to see if there are any trends or actions we need to take."

Spitzer criticized the OCC, and other executive branch agencies, for not taking a stronger stand on consumer protection and for interfering with state officials' actions on consumers’ behalf.

"They are not out there ensuring there's fairness, equity, integrity in the marketplace. They're preempting us so that we can't do what is reasonable," Spitzer said.

The preemption issue may widen to include other regulatory agencies.

On Monday (May 16), Spitzer along with six other states’ attorneys generals sent a letter to the Federal Deposit Insurance Corp. which plans to hold a hearing the week of May 23rd on preemption for state-chartered banks.

Spitzer wrote: "Not only does the FDIC lack authority to adopt the rules requested … [but] any such rules would undermine the states' sovereign authority to police their borders and protect their citizens."

Some of the national banks contacted by Spitzer are apparently complying with his mortgage investigation without argument— regardless of who has jurisdiction.

A spokesperson for Spitzer's office said that at least one national bank has provided the information requested, and she expects others will follow.

"This is an early, early stage inquiry," Spitzer said; his office was asking lenders for "just enough data [to analyze].”

The HMDA data that banks are required to disclose this year for the first time— borrowers’ race, sex, and income range—show minorities as more likely than whites to receive relatively high-rate loans by a significant margin.

In his speech Spitzer discussed the appropriate role of government in the market and the intervention that is necessary to make sure the market gets the information it needs              in order to function properly.

Over the past 20 years, he said, "the federal agencies have essentially been so beaten down and neutered, they've been rendered incapable of fulfilling their fundamental mandate. They have not only been rendered incapable, but they have been sapped of the desire."

Spitzer referred to First Horizon National’s response to a consumer complaint his office received in late 2003: their voicemail message said, “Go away. You're a state agency. You have been preempted by the OCC.”

"This is now the world we're living in, when we simply call up a federal agency to say help, or call a bank to say stop trying to foreclose on this guy's house. … They invoke a federal agency as protection against us, because we've been preempted by a federal agency that doesn't want us to protect consumers," Spitzer said.

 

 

Original story for American Banker by Hannah Bergman

 

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