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FDIC Enforcement Decisions and Orders |
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Civil money penalties were assessed against an executive officer for extending an insider loan that involved more than the normal risk of repayment or other unfavorable terms and for exceeding the lending limit to insiders in violation of Regulation O. Civil money penalties were also assessed against directors who participated in a wrongful insider loan. (Related proceedings in this docket appear at [¶
[.1] Regulation OLoans to Executive Officers, Directors and Principal ShareholdersMore Than Normal Risk
[.2] Civil Money PenaltiesAmount of PenaltiesCorrection and Violation
[.3] Civil Money PenaltiesAmount of PenaltiesPersonal Gain
[.4] Regulation ODefinitionsExecutive Officer
In the Matter of * * *, individually and
This case involves the assessment of civil money penalties for violations of the insider loan prohibitions of section 22(h) of the Federal Reserve Act and Regulation O ("Reg. O") of the Board of Governors of the Federal Reserve System.1 The Notice of Assessment of Civil Money Penalties, Findings of Fact and Conclusions of Law, Order to Pay and Notice of Hearing ("Notice") issued by the Federal Deposit Insurance Corporation ("FDIC") on April 8, 1987, sought civil money penalties in the amount of $290,000 against * * * ("Respondent"), individually and as an executive officer and director of * * * Bank, * * * (the "Bank") and $3,000 each against * * *, * * *, * * *, and * * * ("Respondents"), individually and as directors of the Bank.2
For the reasons set forth below, we concur in part and modify in part the ALJ's Findings of Fact and Conclusions of Law and assess a penalty in the amount of $125,000 against Respondent * * * and in the amount of $3,000 against each of the remaining Respondents.
Factual Background
Respondent * * * sought $1.5 million in financing for the construction, renovation, and operation of * * *, owned by the Partnership, of which he was the sole partner. To obtain this financing, a transaction was structured whereby low interest, multi-family housing revenue bonds in the amount of
Lending Limit Provisions of Regulation O
We agree with the ALJ that, at all times relevant to these proceedings, Respondent * * *, as chairman of the board, was an executive officer of the Bank within the meaning of section 215.2(d) of Reg. O.R.D. at 9. In light of the record in this case we find Respondent * * *'s protestations to the contrary totally disingenuous.
Violation of Section 215.4(a)(2) of
The Notice in this proceeding charged that the Bank's loan to the Partnership involved more than the normal risk of repayment or presented other unfavorable fea-
{{4-1-90 p.A-1288}}tures in violation of section 215.4(a) of Reg. O. The Recommended Decision concluded that the loan to the Partnership was unsound and warranted the adverse classification assigned to it. Nonetheless, the ALJ dismissed this charge on the ground that the FDIC failed to establish that the Partnership loan was preferential in nature. R.D. at 6-8. The ALJ found and concluded that Reg. O pertains only to preferential loans to insiders. Therefore, no action for a civil money penalty can lie unless it is proved that an extension of credit to an insider was both (1) preferential in its terms, including interest rate and collateral, and (2) that the treatment or method used by the board of directors of the bank in determining the creditworthiness of the insider was preferential or differed in any way from the treatment or method used by the board in determining the creditworthiness of non-insiders. The ALJ reasoned, since the FDIC neither alleged nor demonstrated that the terms of the loan to the Partnership were preferential, and since the FDIC did not demonstrate that the Partnership loan was any more uncreditworthy than any other loan at the Bank, that the loan was not violative of section 215.4(a). The ALJ's reading and interpretation of section 215.4(a) are erroneous.
[.1] The record before us establishes that the loan to the Partnership involved more than the normal risk of repayment and presented other unfavorable features in violation of section 215.4(a). The loan and collateral files on the Partnership contained incomplete and insufficient documentation or completely lacked documentation; the asset collateralizing the loan could not support repayment of the loan; and the borrower and guarantor did not appear to be able to repay the loan based upon available financial information. Other unfavorable features included an interest rate equal to 75% of the Chase Manhattan prime interest rate. Although this interest rate was the usual rate charged on tax-free revenue bond projects and not preferential in nature, because of the Bank's lack of income, it was not able to fully benefit from the tax-free status. Consequently, as compared to the income which the Bank could have earned from taxable securities, the Bank lost substantial income. Accordingly for the reasons set forth, the Board finds and concludes that Respondents also violated section 215.4(a) of Reg. O.
The Civil Money Penalty
[.2] Section 18(j)(3)(A) of the Act authorizes the FDIC to impose a maximum civil penalty for each violation of $1,000 per day for each day during which a violation of section 22(h) of the Federal Reserve Act, 12 U.S.C. § 375b, or any lawful regulation promulgated thereunder, continues. In determining the amount of the assessment, section 18(j)(3)(B) of the Act, 12 U.S.C.
[.3] Assessment of a penalty in the amount of the personal gain of Respondent * * * is both reasonable and rational, and the Board would be justified in assessing a penalty in this amount. However, the Board has also taken into consideration several additional factors. This case does not involve personal dishonesty on the part of any Respondent; there has been no prior Reg. O violation; and management did take action to rid the Bank of the overline situation. Upon careful consideration of the entirety
Other Respondents
The Respondents other than Respondent * * *, though not beneficiaries of the violative loan and not the focus of this enforcement action, are nonetheless appropriately the subject of this civil money penalty for causing, participating in, aiding and abetting the violations of section 22(h) of the Federal Reserve Act and sections 215.4(a) and (c) and section 215.2(f) of Reg. O. In light of the continuing nature of the violations, the significant impact this loan had on the condition of this bank, and the statutory penalty which could be imposed, the assessed penalty is a minimum penalty and is assessed primarily for its deterrent effect.
ORDER TO PAY CIVIL MONEY
The Board of Directors of the FDIC, having considered the entire record in this proceeding, including briefs filed on behalf of Respondents and the FDIC, the ALJ's Recommended Decision and Order dated January 23, 1988, and exceptions to the Recommended Decision and Order filed by each party, and after taking into consideration the appropriateness of the penalties with respect to the financial resources and good faith of Respondents, the gravity of the violations, the history of previous violations, and such other matters as justice may require, makes the following findings. The Board finds on the record before it that Respondents violated section 22(h) of the Federal Reserve Act (12 U.S.C. § 375b) and sections 215.2(f), 215.4(c), and 215.4(a) of Regulation O, promulgated thereunder (12 C.F.R. §§ 215.2(f), 215.4(c), and 215.4(a)).
/s/ Hoyle L. Robinson
RECOMMENDED DECISION AND ORDER
FDIC 87-71k
WILLIAM A. GERSHUNY, Administrative Law Judge: A hearing was conducted in * * *, during the period of July 27-30, 1987, on a Notice of Civil Money Penalties issued on April 8, 1987, assessing civil money penalties of $290,000 against Respondent * * * and of $3,000 against each of the remaining Respondents, * * *, * * *, * * * and * * *, based on violations of Regulation O noted during an examination as of January 31, 1986.
Findings of Fact and Conclusions of Law
I. Jurisdiction
The Notice alleges, Respondents admit, and I find that Respondents, as chairman and/or directors of an insured State nonmember bank, are subject to the jurisdic-
{{4-1-90 p.A-1292}}tion of the FDIC and its Rules and Regulations.
II. The Alleged Violations of Regulation O
A. Regulation O.
Regulation O, 12 CFR § 215, promulgated by the Federal Reserve Board to implement Sec. 22(h)(3) of the Federal Reserve Act, 12 U.S.C. 375b, and made applicable to insured state nonmember banks by Sec. 18(j) of the Federal Deposit Insurance Act, 12 U.S.C. 1828(j), and Sec. 337.3 of the FDIC Rules and Regulations, 12 CFR § 337.3, one of many statutory and regulatory proscriptions imposed on FDIC-insured banks, is intended to curb the granting of unlimited credit and preferential credit terms to bank "insiders," e.g. executive officers and directors, to the detriment of shareholders and depositors.
B. The Allegations of the Notice.
The Notice alleges that Respondent * * * was, at all relevant times, chairman of the board and an executive officer of the Bank, and that the remaining Respondents, * * *, * * *, * * * and * * *, were directors of the Bank; that * * * ("* * *") was solely owned and controlled by Respondent * * * who, guaranteed its debts to the Bank and thus was his "related interest;" that on November 22, 1985, the board of directors of the Bank extended credit to * * * in the amount of $1,500,000, which was $275,000 in excess of the lending limits of Secs. 215.4(c) and 215.2(f) of Regulation O; and that this credit extension involved more than the normal risk of repayment and had other unfavorable features, including a lack of documentation "and/or incomplete and insufficient documentation with respect to essential financial information," in violation of Sec. 215.4(a) of Regulation O. The Notice seeks penalties of $290,000 from * * * and $3,000 from each of the other Respondents.
C. The Contentions of Respondents.
Respondents admit the extension of credit to * * *, but deny that Respondent * * * was an executive officer of the Bank. In this connection, they point out that the January 31, 1986, report of examination on which the FDIC relies was the first time the FDIC took the position that * * * was an executive officer. They contend that, immediately upon being informed of the credit overline, steps were taken to eliminate the excess; that this process was delayed and required two steps because, initially, the FDIC under-calculated the overline, and because bond commission approval was required for reissuance of the * * * bonds; and that, when required to charge off $271,000, the loan was current in all respects. Respondents contend that, because they relied in good faith on the FDIC's prior treatment of * * * not being an executive officer, no civil money penalty is warranted.
D. The Extension of Credit to * * *.
There is virtually no dispute as to the relevant facts relating to the Bank's extension of credit to * * *. On November 22, 1985, 10 weeks prior to the January 31, 1986, FDIC examination, the Bank extended credit to * * *, a related interest of Respondent * * *, by purchasing multifamily housing revenue bonds in the amount of $1,500,000 issued by the * * * ("Issuer"), with * * * Bank * * * (later succeeded by * * * Bank) as trustee ("Trustee"). Interest was pegged at 75% of Chase Prime with a 30-year amortization and a 10-year call. Security consisted of a first mortgage on * * * (purchased by * * * simultaneously with the closing of the loan) and a $100,000 certificate of deposit.
* * * an Executive Officer of the Bank.
[.4] On this record, there can be no serious contention, and I find and conclude, that, at all relevant times, * * * was an executive officer of the Bank, within the meaning of Sec. 215.2(d). By virtue of his position as chairman of the board, * * *, by regulatory definition, is deemed to be an executive officer of the Bank, unless he is excluded from policymaking functions by resolution of the board or by the bylaws of the bank. There is no evidence in this record that any such resolution or bylaw was in effect at the time. * * *'s withdrawal from the board meeting which considered the * * * loan does satisfy the resolution/bylaw requirement of Sec. 215.2(d). In any event, * * * was in fact an executive officer because he participated in policymaking functions of the Bank: he appointed members of the executive committees of the board, and served as ex officio member of each committee; as chairman, he conducted most of the board meetings and signed the minutes; he was chairman of the executive loan committee; he brought business into the Bank; he executed employment contracts and other contracts on behalf of the Bank; and he presented loans to the board for approval.
F. * * * a Related Interest of * * *.
At the hearing, * * * stipulated that he was the general partner of * * *, a limited partnership, and that he had exclusive control and management of the company. Accordingly, I find and conclude that at all relevant times * * * was a related interest of * * * within the meaning of Sec. 215.2(k) and (b).
G. Lending Limit Provisions of Regulation O, Secs. 215.4(c) and Sec. 215.2(f), Violated.
The evidence is indisputable, and I find and conclude, that the * * *' $1.5 million extension of credit exceeded the Bank's lending limits under Sections 215.2(f) and 215.4(c) by $275,000. The regulatory 25% lending limit, when applied to the Bank's total equity capital and reserves of $4.9 million, is $1,225,000.
H. No Violation of "Repayment Risk" or "Other Unfavorable Terms" Provisions of Sec. 215.4(a)(2) of Regulation O.
For reasons set forth herein, I find and conclude that counsel for the FDIC failed to establish an essential element of a Sec. 215.4(a)(2) violationthat the credit extension was a "preferential" one. Accordingly, I recommend dismissal of these allegations of the Notice.
I. The Civil Money Penalty.
Having found and concluded above that Respondents violated the lending limit provisions of Regulation O, I now consider the issue of the amount of the civil money penalties to be assessed.
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Last Updated 6/6/2003 | legal@fdic.gov |