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[¶11,397] In the Matter of Lippo Bank, Los Angeles, California, Docket No. 97-20b (3-21-97)
Respondent bank ordered to cease and desist from such unsafe and unsound practices as operating with inadequate management; operating with inadequate equity capital and reserves in relation to the volume and quality of assets held by the bank; operating with a large volume of poor quality loans; operating with an inadequate allowance for loan and lease losses; following unsatisfactory lending and lax collection practices; operating with a large volume of concentrations of credit; operating with inadequate policies; operating in such a manner as to produce operating losses; and operating in violation of Section 215.8 of Regulation O of the Board of Governors of the Federal Reserve System. (This order was terminated by order of the FDIC dated 6-20-00; see ¶16,259.)
[.1] Management—Qualifications Specified
[.2] Capital—Tier 1 Capital—Increase/Maintain—Methods
[.3] Shareholders—Disclosure—Cease and Desist Order
[.4] Assets—Adversely Classified—Eliminate/Reduce
[.5] Loans—Extensions of Credit—To Borrowers With Existing Adversely Classified Credits
[.6] Loan Policy—Revise Adopt/Implement
In the Matter of
LIPPO BANK
LOS ANGELES,CALIFORNIA
(Insured State Nonmember Bank)
ORDER TO CEASE AND DESIST
FDIC-97-20b
Lippo Bank, Los Angeles, California ("Bank"), having been advised of its right to a Notice of Charges and of Hearing detailing the unsafe or unsound banking practices and violation of laws and/or regulations alleged to have been committed by the Bank and of its right to a hearing on the alleged charges under Section 8(b)(1) of the Federal Deposit Insurance Act ("Act"), 12 U.S.C. § 1818(b)(1), and having waived those rights, entered into a STIPULATION AND CONSENT TO THE ISSUANCE OF AN ORDER TO CEASE AND DESIST ("CONSET AGREEMENT") with counsel for the Federal Deposit Insurance Corporation ("FDIC"), dated March 13, 1997, whereby solely for the purpose of this proceeding and without admitting or denying the alleged charges of unsafe or unsound banking practices and violation of laws and/or regulations, the Bank consented to the issuance of an ORDER TO CEASE AND DESIST ("ORDER") by the FDIC.
The FDIC considered the matter and determined that it had reason to believe that the Bank had engaged in unsafe or unsound banking practices and had committed a violation of Regulation O, 12 C.F.R. § 215.8. The FDIC, therefore, accepted the CONSENT AGREEMENT and issued the following:
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ORDER TO CEASE AND DESIST
IT IS HEREBY ORDERED, that the Bank, its institution-affiliated parties, as that term is defined in Section 3(u) of the Act, 12 U.S.C. § 1813(u), and its successors and assigns cease and desist from the following unsafe and unsound banking practices and violation of laws and/or regulations:
(a) operating with inadequate management;
(b) operating with inadequate equity capital and reserves in relation to the volume and quality of assets held by the Bank;
(c) operating with a large volume of poor quality loans;
(d) operating with an inadequate allowance for loan and lease losses;
(e) following unsatisfactory lending and lax collection practices;
(f) operating with a large volume of concentrations of credit;
(g) operating with inadequate policies;
(h) operating in such a manner as to produce operating losses; and
(i) operating in violation of Section 215.8 of Regulation O of the Board of Governors of the Federal Reserve System, 12 C.F.R. § 215.8, made applicable to state nonmember institutions by Section 18(j)(2) of the Act, 12 U.S.C. 1828 (j)(2), as more fully described on Pages 8.20-8.21 of the Report of Examination as of September 3, 1996.
IT IS FURTHER ORDERED, that the Bank, its institution-affiliated parties, and its successors and assigns, take affirmative action as follows:
[.1] 1. The Bank shall have and retain qualified management.
(a) Within 60 days of the effective date of this Order, the Bank shall undertake a management study designed to evaluate the current management team to determine its ability to operate the Bank in a safe and sound manner.
(b) Each member of management shall have qualifications and experience commensurate with his or her duties and responsibilities at the Bank. Management shall include a chief executive officer with proven ability in managing a Bank of comparable size, and experience in upgrading a low quality loan portfolio, improving earnings, and other matters needing particular attention. Management shall also include a senior lending officer with significant appropriate lending, collection, and loan supervision experience and experience in upgrading a low quality loan portfolio. Each member of management shall be provided appropriate written authority from the Bank's Board of Directors to implement the provisions of this ORDER.
(c) The qualifications of management shall be assessed on its ability to:
(i) comply with the requirements of this ORDER;
(ii) operate the Bank in a safe and sound manner;
(iii) comply with applicable laws and regulations;
and
(iv) restore all aspects of the Bank to a safe and sound condition, including asset quality, capital adequacy, earnings, management effectiveness, and liquidity.
(d) During the life of this ORDER, the Bank shall notify the notify Regional Director of the FDIC's San Francisco Regional Office ("Regional Director") and the Superintendent of Banks for the State of California ("Superintendent") in writing when it proposes to add any individual to the Bank's Board of Directors or employ any individual as a senior executive officer. The notification must be received at least 30 days before such addition or employment is intended to become effective and should include a description of the background and experience of the individual or individuals to be added or employed.
(e) The Bank may not add any individual to its Board of Directors or employ any individual as a senior executive officer if the Regional Director issues a notice of disapproval pursuant to Section 32 of the Act, 12 U.S.C. § 1831i.
2. (a) Within 90 days from the effective date of this ORDER, the Bank shall have Tier 1 capital in such an amount as to equal or exceed Six (6.00) percent of the Bank's total assets; and the Bank shall have Tier 1 capital in such an amount as to equal or exceed Seven and one-half (7.50) percent of the Bank's total assets by December 31, 1997. Thereafter, during the life of this ORDER, the Bank shall maintain Tier 1 capital in such an amount as to equal or exceed Seven
{{5-31-97 p.C-4330}}and One-Half (7.50) percent of the Bank's total assets.
(b) Within 60 days from the effective date of this ORDER, the Bank shall develop and adopt a plan to meet the minimum risk based capital requirements as described in the FDIC Statement of Policy on Risk Based Capital contained in Appendix A to Part 325 of the FDIC Rules and Regulations, 12 C.F.R. Part 325. Appendix A. The Plan shall be in a form and manner acceptable to the Regional Director as determined at subsequent examinations.
[.2] (c) The level of Tier 1 capital to be maintained during the life of this ORDER pursuant to Subparagraph 2(a) shall be in addition to a fully funded allowance for loan and lease losses, the adequacy of which shall be satisfactory to the Regional Director and Superintendent as determined at subsequent examinations and/or visitations.
(d) Any increase in Tier 1 capital necessary to meet the requirements of Paragraph 2 of this ORDER may be accomplished by the following:
(i) the sale of common stock; or
(ii) the sale of noncumulative perpetual preferred stock; or
(iii) the direct contribution of cash by the Board of Directors and/or shareholders of the Bank; or
(iv) any other means acceptable to the Regional Director and the Superintendent; or
(v) any combination of the above means.
Any increase in Tier 1 Capital necessary to meet the requirements of Paragraph 2 of this ORDER may not be accomplished through a deduction from the Bank's allowance for loan and lease losses.
(e) If all or part of the increase in Tier 1 capital required by Paragraph 2 of this ORDER is accomplished by the sale of new securities, the Board of Directors shall forthwith take all necessary steps to adopt and implement a plan for the sale of such additional securities, including the voting of any shares owned or proxies held or controlled by them in favor of the plan. Should the implementation of the plan involve a public distribution of the Bank's securities (including a distribution limited only to the Bank's existing shareholders), the Bank shall prepare offering materials fully describing the securities being offered, including an accurate description of the financial condition of the Bank and the circumstances giving rise to the offering, and any other material disclosures necessary to comply with the Federal securities laws. Prior to the implementation of the plan and, in any event, not less than fifteen (15) days prior to the dissemination of such materials, the plan and any materials used in the sale of the securities shall be submitted to the FDIC, Registration and Disclosure Section, 550-17th Street, N.W., Washington, D.C. 20429, for review. Any changes requested to be made in the plan or materials by the FDIC shall be made prior to their dissemination. If the increase in Tier 1 capital is provided by the sale of noncumulative perpetual preferred stock, then all terms and conditions of the issue, including but not limited to those terms and conditions relative to interest rate and convertibility factor, shall be presented to the Regional Director and the Superintendent for prior approval.
[.3] (f) In complying with the provisions of Paragraph 2 of this ORDER, the Bank shall provide to any subscriber and/or purchaser of the Bank's securities, a written notice of any planned or existing development or other changes which are materially different from the information reflected in any offering materials used in connection with the sale of Bank securities. The written notice required by this Paragraph shall be furnished within ten (10) days from the date such material development or change was planned or occurred, whichever is earlier, and shall be furnished to every subscriber and/or purchaser of the Bank's securities who received or was tendered the information contained in the Bank's original offering materials.
(g) For the purposes of this ORDER, the terms "Tier 1 capital" and "total assets" shall have the meanings ascribed to them in Part 325 of the FDIC Rules and Regulations, 12 C.F.R. §§ 325.2(t) and 325.2(v).
[.4] 3. (a) Within 10 days from the effective date of this ORDER, the Bank shall eliminate from its books, by charge-off or collection, all assets classified "Loss" as of September 3, 1996, that have not been previously collected or charged off or otherwise sufficiently improved. Elimination of these assets through proceeds of other loans made by the Bank is not considered collection for the purpose of this Paragraph.
(b) Within 120 days from the effective date of this ORDER, the Bank shall have
{{5-31-97 p.C-4331}}reduced the assets classified "Substandard" as of September 3, 1996 that have not previously been charged off to not more than $7,000,000.
(c) By December 31, 1997, the Bank shall have reduced the assets classified "Substandard" as of September 3, 1996 that have not previously been charged off to not more than $6,000,000.
(d) By March 31, 1998, the Bank shall have reduced assets classified "Substandard" as of September 3, 1996 that have not previously been charged off to not more than $4,500,000.
(e) The requirements of Subparagraphs 3(a), 3(b), 3(c), and 3(d) of this ORDER are not to be construed as standards for future operations and, in addition to the foregoing, the Bank shall eventually reduce the total of all adversely classified assets. Reduction of these assets through proceeds of other loans made by the Bank is not considered collection for the purpose of this Paragraph. As used in Subparagraphs 3(b), 3(c), 3(d), 3(e) the word "reduce" means:
(i) to collect;
(ii) to charge-off; or
(iii) to sufficiently improve the quality of assets adversely classified to warrant removing any adverse classification, as determined by the FDIC.
[.5] 4. (a) Beginning with the effective date of this ORDER, the Bank shall not extend, directly or indirectly, any additional credit to, or for the benefit of, any borrower who has a loan or other extension of credit from the Bank that has been charged off or classified, in whole or in part, "Loss" and is uncollected. Subparagraph 4(a) of this ORDER shall not prohibit the Bank from renewing or extending the maturity of any credit in accordance with the Financial Accounting Standards Board Statement Number 15 ("FASB 15").
(b) Beginning with the effective date of this ORDER, the Bank shall not extend, directly or indirectly, any additional credit to, or for the benefit of, any borrower who has a loan or other extension of credit from the Bank that has been classified, in whole or part, "Substandard" without the prior written approval of a majority of the Board of Directors or the Loan Committee of the Bank. Subparagraph 4(b) of this ORDER shall not prohibit the Bank from renewing or extending the maturity of any credit in accordance with FASB 15, providing that such renewal or extension shall be made only with the prior written approval of a majority of the Board of Directors or the Loan Committee of the Bank.
(c) In connection with Subparagraph 4(a) and 4(b) of this ORDER, the Bank shall continue its policy of not:
(i) continuing the accrual of interest on any loan which is delinquent in principal or interest payments ninety (90) days or more unless the asset is both well secured and in the process of collection; or
(ii) engaging in any practice or device which essentially avoids recognition of overdue loans and/or artificially inflates the income of the Bank. For any loans restructured in accordance with FASB 15, consideration should be given to the reasonableness of the modified terms of the loan, since loans should not be restructured in an attempt to conceal credit losses or delay their recognition.
(d) For the purpose of Subparagraph 4(c) of this ORDER, debt is "well secured" if it is secured by:
(i) collateral in the form of liens on or pledges of real or realizable value sufficient to discharge the debt (including accrued interest) in full; or
(ii) the guaranty of a financially responsible party.
A debt is "in the process of collection" if collection of the debt is proceeding in due course either through legal action, including judgment enforcement procedures, or, in appropriate circumstances, through collection efforts not involving legal action which are reasonably expected to result in repayment of the debt or in its restoration to a current status.
5. Within 60 days from the effective date of this ORDER, the Bank shall:
[.6] (a) Revise, adopt, and implement a written lending and collection policy to provide effective guidance and control over the Bank's lending function, which policy shall include, at a minimum, revisions to address all items of criticism contained within the September 3, 1996 Report of Examination as well as specific guidelines for placing loans on a nonaccrual basis.
(b) Implement a program to obtain ad-
{{5-31-97 p.C-4332}}equate and current documentation for all loans in the Bank's loan portfolio.
(c) Implement a policy which requires that any modification of repayment terms on a loan of $500,000 or more, must receive prior loan committee approval and be noted in the minutes.
(d) Implement a program to obtain and review current and complete financial information before extending or modifying existing credit obligations.
(e) Implement a program to recognize loan losses in a timely manner.
(f) Implement a policy to identify appraisal program weaknesses concerning its lending policy.
(g) Implement a policy to identify and reduce over time the Bank's high levels of concentrations of credit in connection with its lending function. Such policy and its implementation, as required by this Paragraph, shall be in a form and manner acceptable to the Regional Director and the superintendent as determined at subsequent examinations and/or visitations.
6. Within 30 days from the effective date of this ORDER, the Bank shall establish and thereafter maintain an adequate allowance for loan and lease losses.
Additionally, within 30 days from the effective date of this ORDER:
(a) The Board of Directors shall develop or revise, adopt and implement a comprehensive policy for determining the adequacy of the allowance for loan and lease losses. For the purpose of this determination, the adequacy of the allowance shall be determined after the charge-off of all loans or other items classified "Loss." The policy shall provide for a review of the allowance at least once each calendar quarter. Said review should be completed at least thirty (30) days after the end of each quarter, in order that the findings of the Board of Directors with respect to the loan and lease loss allowance may be properly reported in the quarterly Reports of Condition and Income. The review should focus on the results of the Bank's internal loan review, loan and lease loss experience, trends of delinquent and non-accrual loans, an estimate of potential loss exposure of significant credits, concentrations of credit, and present and prospective economic conditions. A deficiency in the allowance shall be remedied in the calendar quarter it is discovered, prior to submitting the Report of Condition, by a charge to current operating earnings. The minutes of the Board of Directors meeting at which such review is undertaken shall indicate the results of the review. Upon completion of the review, the Bank shall increase and maintain its allowance for loan and lease losses consistent with the allowance on loan and lease loss policy established. Such policy and its implementation shall be satisfactory to the Regional Director and Superintendent as determined at subsequent examinations and/or visitations.
(b) Within 90 days of the effective date of this Order, the Bank shall prepare and submit to the Regional Director a written policy regarding its methodology for determining the adequacy of its ALLL that will bring the Bank into compliance with the 1993 Interagency Statement of Policy.
7. Within 60 days from the effective date of this ORDER, the Bank shall formulate and implement a written profit plan. This plan shall be forwarded to the Regional Director and to the Superintendent for review and comment and shall address, at a minimum, the following:
(a) goals and strategies for improving and sustaining the earnings of the Bank, including:
(i) an identification of the major areas in, and means by which, the Board of Directors will seek to improve the Bank's operating performance:
(ii) realistic and comprehensive budgets;
(iii) a budget review process to monitor the income and expenses of the Bank to compare actual figures with budgetary projections; and
(iv) a description of the operating assumptions that form the basis for, and adequately support, major projected income and expense components.
(b) The Board shall establish a committee of Board members to review management's progress in implementing profitable operations.
8. Within 90 days of the effective date of this Order, the Bank shall develop and submit to the Regional Director a written strategic plan. Such plan shall include specific goals for improving the Bank's structural earnings problems, poor asset quality, and inadequate capital position. Furthermore, the Board of Directors, or a committee of the
{{6-30-97 p.C-4333}}Board of Directors, shall monitor and evaluate management's progress in implementing the plan.
9. Within 60 days from the effective date of this ORDER, the Bank shall eliminate and/or correct the violation law which is more fully set out on Pages 8.20-8.21 of the Report of Examination of the Bank as of September 3, 1996. In addition, the Bank shall take all necessary steps to ensure future compliance with all applicable laws and regulations.
10. The Bank shall not pay cash dividends without the prior written consent of the Regional Director and the superintendent.
11. Following the effective date of this ORDER, the Bank shall send to its shareholders or otherwise furnish a description of this ORDER in conjunction with the Bank's next shareholder communication and also in conjunction with its notice or proxy statement preceding the Bank's next shareholder meeting. The description shall fully describe the ORDER in all material respects. The description and any accompanying communication, statement, or notice shall be sent to the FDIC, Registration and Disclosure Section, 550-17th Street, N.W., Washington, D.C. 20429, at least fifteen (15) days prior to dissemination to shareholders. Any changes requested to be made by the FDIC shall be made prior to dissemination of the description, communication, notice, or statement.
12. Within 30 days of the end of the first calendar quarter following the effective date of this ORDER, and within thirty (30) days of the end of each quarter thereafter, the Bank shall furnish written progress reports to the Regional Director and the Superintendent detailing the form and manner of any actions taken to secure compliance with this ORDER and the results thereof. Such reports shall include a copy of the Bank's Report of Condition and the Bank's Report of Income. Such reports may be discontinued when the corrections required by this ORDER have been accomplished and the Regional Director and the Superintendent have released the Bank in writing from making further reports.
This ORDER shall become effective ten (10) days from the date of its issuance.
The provisions of this ORDER shall remain effective and enforceable except to the extent that, and until such time as, any provisions of this ORDER shall have been modified, terminated, suspended, or set aside by the FDIC.
Pursuant to delegated authority.
Dated at San Francisco, California, this 21st day of March, 1997.
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