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By Matthew R. Lee, Video, FOIA fee denial

SOUTH BRONX, SDNY, Oct 19 – With Comptroller of the Currency Joseph Otting moving to undermine the US Community Reinvestment Act, his latest move has been to refuse to consider a timely CRA protest to People's United Bank by Inner City Press / Fair Finance Watch.

Now with the OCC yet to be sued for its contempt for the law, the Consumer Financial Protection Bureau under Kathy Kraninger has launched a no action letter process for fintech, giving assurances without any public notice or comment that activities can be undertaken with no concern about enforcement. See here.

Last month Kraninger's CFPB issued 2018 Home Mortgage Disclosure Act data - with an interface without any racial or ethnic information unlike 2017 and every previous year, undermining the entire purpose of the HMDA law. See this page.

Now on October 19 Inner City Press reports on push-back from New York, beyond the obvious need to make the disclosure tables available online again, this: "Dear Director Kraninger: The New York State Attorney General (“NYAG”) submits the following comments on the Consumer Financial Protection Bureau’s (the “CFPB”) Advance Notice of Proposed Rulemaking on the efficacy of certain data points and coverage of the Home Mortgage Disclosure Act (“HMDA”) (Docket No. CFPB-2019-0020/RIN 3170-AA97) (“Advance Notice”). HMDA is an important tool in ending the scourge of mortgage lending discrimination that has long plagued our country. Designed to provide public detailed mortgage lending data, HMDA ensures that the public and state regulators have the means necessary to enforce federal and state fair lending laws and to guarantee that the lending needs of their communities are being met. In 2010, in the wake of the 2008 financial crisis, Congress amended HMDA to make certain that our economy would never again be brought down by predatory mortgage lending. Congress statutorily added more required data fields and then gave the CFPB the authority to add additional fields to achieve the objective of greater transparency. In 2015, after five years of research, outreach and various notice and comment periods, the CFPB added 14 additional data points and revised certain others (“2015 HMDA Amendments”). The 2015 HMDA Amendments went into effect on January 1, 2018 and the 2018 HMDA data is the first data set that contains these new fields. Most of these new fields request data that mortgage lenders already collect for the purpose of underwriting and for selling these loans to Fannie Mae, Freddie Mac or other investors.  The CFPB is now asking whether it should reverse course and reduce the transparency provided by its current HMDA reporting requirements. The answer is a resounding no. Reducing HMDA reporting requirements would undermine the ability of local public officials to investigate unfair and discriminatory mortgage lending practices, such as the predatory practices that led to the housing market crash in 2008. "

On October 12 Inner City Press reported a flood of identical comments *supporting* Kraninger and the CFPB like this one on HMDA: "Comment Submitted by Anonymous Sonnenburg, I appreciate the CFPB's recent willingness to reconsider and revise its prior rulemakings." This while CFPB is still withhold the basis race and ethic information from display on its website, raw data download only unlike previous years. This is an outrage - and its having impacts. The Federal Reserve, citing the CFPB, rubber stamped Hancock Whitney - MidSouth Bank, and is prepared to close its comment periods on Simmons - Landrum and other proposed mergers while the CFPB on September 7 is still saying this: "We will retire HMDA Explorer and its API Our tool for exploring HMDA data—and the Public Data Platform API that powers it—will be shut down in the coming months. We will post additional details as they become available.  The 2018 HMDA data include a number of new data points and, as a result, are not compatible with the multi-year functionality provided by the Public Data Platform.    The Federal Financial Institutions Examination Council (FFIEC) will publish a query tool for the 2018 data in the coming months, which will be available at ffiec.cfpb.gov.  After the new query tool becomes available, the Bureau will retire the current HMDA Explorer tool and the Public Data Platform API  that powers it."  In the coming months? The CFPB has months to do this. They are intentionally making it more difficult for the public to access basic fair lending information.

 This is confirmed in a blithe "request for comments" that includes "the HMDA Platform allows users to produce and export custom data sets rather than relying on numerous static reports that few previously accessed. To enable external software developers to access some of the key services offered by the HMDA Platform, the Bureau publishes Application Programming Interfaces (APIs) that can be integrated into external websites, analytical tools, and industry software. The Bureau has innovated in other areas as well."

 Inner City Press has commented:   Dear Director Kraninger and others at CFPB:     On behalf of Inner City Press / Fair Finance Watch, which has reviewed and publicized HMDA data for years, this is a comment both on Docket No. CFPB–2019– 0048 and specifically demanding that CFPB's troubling whitewash of the 2018 HMDA data, refusing to make it simply available with race and ethnicity information, be reversed and the data made available as below.    Your proposal (mis) states that "tthe HMDA Platform allows users to produce and export custom data sets rather than relying on numerous static reports that few previously accessed.      That is false, and is also an unacceptable pretext to make race and ethnicity HMDA data less available.  As Inner City Press has previously written to CFPB staff, so far without action: Go to  https://ffiec.cfpb.gov/data-publication/disclosure-reports   Compare disclosure for 2017 (with race and ethnicity)  https://ffiec.cfpb.gov/data-publication/disclosure-reports/2017      to 2018 - no race or ethnicity.     CFPB must make this basic information available, in simple format that can be used by grassroots groups. Already time is going by in which the 2018 data is ostensibly available but grassroots groups cannot access race and ethnicity information as they did before, which is among the goals of HMDA data.     Please explain when and where this information will be made available again.   Matthew Lee, Esq., Executive Director Inner City Press / Fair Finance Watch." Watch this site.

 Previously CFPB issued a rule relieving payday lenders of the duty to comply with the ability-to-repay standard for the CFPB’s short term lending rule of November 2017.

  Here's how the CFPB breezily put it: "The Bureau of Consumer Financial Protection is issuing this final rule to delay the August 19, 2019 compliance date for the mandatory underwriting provisions of the regulation promulgated by the Bureau in November 2017 governing Payday, Vehicle Title, and Certain High-Cost Installment Loans (2017 Final Rule or Rule). Compliance with these provisions of the Rule is delayed by 15 months, to November 19, 2020." Whats 15 months among friends?

The CFPB is also thumbing its nose at the US Administrative Procedures Act and proposing to undermine the Home Mortgage Disclosure Act.

CFPB is trying three separate but inter-related attacks. The first is to raise the threshold for reporting HMDA data, to exempt wither 36% or 53% of banks and credit unions, a proposal on which the comment period runs only to June 12, here. (Comments are going in from such banks as Village Bank and Hamilton Bank and even, incongruously, Brenda Muniz OF the CFPB.)

  Second is to weaken the "data points" which will be reported by those still required to under HMDA. The CFPB wants to drop such information as "reason for denial" and "debt to income ratio" - the very information that banks so often cite in response to CRA challenged by Fair Finance Watch and others, as justifying their disparities. Now the CFPB wants to not collect this supposed justification of disparities. Just trust us, is the message. Well, no. This comment period runs to July 8, here.

  Finally, without any comment period at all, the CFPB is eliminating the public's front door to the HMDA data, the HMDA Explorer web site that many community groups such as the hundreds that are members of NCRC use to assess banks in their communities. The CFPB wants to take even this away. They should be sued.  We'll have more on this. And see @SDNYLIVE. Inner City Press requested the WSFS merger records months ago, along with a request for a waiver of fees as the other Federal bank regulators grant it and other NCRC members and as the OCC has until now.

  But Otting is different. First he denied a fee waiver on Inner City Press' request for his calendar. Then he relented on that, after Inner City Press citing case law and precedent. But seemingly in retaliation, he has denied access to a merger application subject to public comment. Denial here on Scribd.

  Ironically the grounds cited is that releasing this information about a merger subject to public comment would not increase the public's understanding. This shows Otting contempt for CRA - and for the public. Inner City Press has filed this appeal with Otting, et al.:

"Dear Comptroller Otting:    

Inner City Press traditionally has received fee waivers from the Office of the Comptroller of the Currency under 5 U.S.C. § 552(a)(4)(A)(iii) and 12 C.F.R. § 4.17. Waivers were granted on the basis of similar or identical language contained in the instant Freedom of Information Act (FOIA) request, which is now the subject of OCC’s waiver rejection. Outrageously, on Inner City Press' FOIA request for the portions of the WSFS - Beneficial merger application that the applicants unilaterally requested confidential treatment for, your FOIA Manager Frank Vance writes:   

 "Concerning the third consideration, contribution to public understanding, we examined whether or not disclosure of the requested records would contribute to the understanding of the public at large, as opposed to the understanding of the requester or a small number of interested persons.  In other words, we considered whether or not you demonstrated how contribution to public understanding outweighs personal benefit to you.  I find that you did not demonstrate this component; therefore, you did not satisfy the regulatory requirement of 12 C.F.R. 4.17(b)(4)(i).  In light of this, there is no need to analyze your justification with respect to 12 C.F.R. 4.17(b)(4)(ii). "     

So you are claiming that the public is not interested in, and should be constrained in access, the bank merger applications on which the public has a right to comment. You are claiming that to get any OCC review of the often outrageously overbroad requests for confidential treatment of the banks you supervise, the public has to pay untold fees. This is a new low, and Inner City Press is appealing.     Inner City Press Is Eligible for a Fee Waiver     In accordance with 5 U.S.C. § 552(a)(4)(A)(iii) and 12 C.F.R. § 4.17, Inner City Press is eligible for, and requests, a waiver of fees associated with processing its request for records. The subject of this request—the review of a merger to close at least 25 bank branches -- concerns the operations of the federal government, and the disclosures will likely contribute to a better understanding of relevant government procedures by the general public in a significant way. Moreover, the request is primarily and fundamentally for non-commercial purposes.     Inner City Press requests a waiver of fees because disclosure of the requested information is “in the public interest because the disclosure . . . [i]s likely to contribute significantly to public understanding” of government operations or activities.

 Specifically, the disclosure of the information sought under this request will document and reveal the activities of the federal government, including how your OCC reviews the CRA and branch closing aspects of the merger.      As discussed below, Inner City Press has both the ability and the intention to effectively convey the information it receives to the public.     Inner City Press does not have a commercial interest in the requested information. This request is primarily and fundamentally for non-commercial purposes. Inner City Press does not have a commercial purpose and the release of the information requested is not in its financial interest. Inner City Press’s mission is to engage in cutting-edge investigative reporting focused, fair lending, development, and government accountability advocacy. Core to its mission is to educate the public about government activities and to ensure the accountability of government officials. Inner City Press uses the information gathered, and its analysis of it, to educate the public through reports, press releases, or other media. It also makes materials it gathers available on its public website and promotes their availability on social media platforms. Inner City Press has demonstrated its commitment to the public disclosure of documents and creation of editorial content. For example, Inner City Press’s website contains dozens of articles describing the operations of the federal government from a unique perspective, including about the OCC:  
 In SDNY FreddieMac Via FHFA of Otting Says Its Negligent Late Objection Is Fine As Otting Lawless

 And this.

   Inner City Press’s website contains many more examples demonstrating its ability and intention to inform the public about government activities, including specifically related to how the subject of the instant FOIA request spent his time at OCC.     Accordingly, Inner City Press qualifies for a fee waiver.    

Significantly, well before this outrageous denial which now longer keeps secret the requested documents, even the OCC wrote "your correspondence of March 8 is more robust and sets forth with reasonable specificity the grounds to justify the OCC's granting of the fee waiver. Therefore, your request for a fee waiver with respect to FOLA request 2019-00104 is granted. The OCC's Disclosure Services office will remove the matter from "Hold" status and proceed to process the request."    

Of course, even in that case [about your / Otting's schedule] in the two month since our letter we have not received a single document from your OCC.          

There can be no doubt that Inner City Press qualifies for a waiver based on the foregoing. Moreover, Inner City Press’s long track record of fee waivers is further evidence of our current eligibility. In particular, we have demonstrated repeatedly our intent and ability to inform the public about government operations and that our requests for information are not primarily in our commercial interest.     

We find your OCC's FOIA and other practices outrageous and demand expeditious ruling on this appeal and release of the already long delayed documents.    Matthew Lee, Esq., Executive Director Inner City Press / Fair Finance Watch." Watch this site. 

  Otting has been sued again for offering a CRA-lax fintech bank charter. The lawsuit, filed September 14 by the New York State Department of Financial Services, says Otting "puts New York financial consumers—and often the most vulnerable ones—at great risk of exploitation by federally-chartered entities improperly insulated by New York law. The OCC’s reckless folly should be stopped." It's Vullo v Office of the Comptroller of the Currency, 18-cv-8377, U.S. District Court, Southern District of New York. On May 2, SDNY Judge Victor Marrero allowed DFS' suit to go forward. He wrote, "As a result of the Fintech Charter Decision, New York State's regulations for over "600 non-bank financial services firms" are all at risk of becoming null and void. (Complaint ~ 10.) Of course, certain steps, namely the application for, and then the granting of, an SPNB charter must occur before a fintech firm can flout New York's laws. But those steps do not stymie DFS's standing. For both steps, DFS benefits from the supposition that the government enforces and acts on its recent, non-moribund laws. See Hedges v. Obama, 724 F.3d 170, 19 7 ( 2d Cir. 2 013) . Specifically, DFS alleges that OCC has invited fintech companies to its offices to discuss SPNB charters, potentially indicating at least some demand for, and interest in, such charters." Sounds like Otting, the secret meetings of the type the OCC has YET to disclose in response to Inner City Press' FOIA request which was delayed by the OCC disputing fee waivers as it never had before, We'll have more on this. The OCC's spokesman Bryan Hubbard had said the agency "is confident in its authority to grant national bank charters including special purpose national bank charters to companies that are engaged in the business of banking, meet the qualifications for becoming a national bank, and apply to conduct business as part of the federal banking system. The agency will vigorously defend that authority, but will not comment on pending or potential litigation.” Otting, as we've noted, as a pre-OCC history of generating dubious comment supporting mergers like his OneWest with CIT.  Otting's OCC wrote to Fair Finance Watch rebuffing Inner City Press' straight forward request for information and stating on the "Application for KleinBank, Chaska, MN to Merge with and into Old National Bank,
Evansville, IN, Dear Mr. Lee, Esq.: The Office of the Comptroller of the Currency (OCC) acknowledges receipt of your comments regarding the above referenced application. The comment letter requests the OCC (i) extend the public comment period and (ii) hold a public hearing on the application. The OCC has decided not to extend the comment period." Klein settled charges of racial discrimination, quite recently. We'll have more on this. #TreasureCRA. With the Consumer Financial Protection Bureau under Mick Mulvaney moving to undermine liability for disparate impact discrimination, on September 7 a new, smaller and less consumer representative Consumer Advisory Board was announced. Now on September 10 this, from members of the former CAB that was disbanded by Mulvaney in June: "We are disappointed that the current administration of the CFPB chose to only appoint nine members to this new CAB. While each of the individual members is qualified in her or his own right, the fact that there are so few of them means that Acting Director Mulvaney’s CAB lacks sufficient diversity and depth of perspective. There are only 2 consumer advocates, whereas there were at least 8 advocates on the former 25 member CAB. Ironically, there are no large financial institutions, major credit card providers, or debt collectors on this new CAB. While these sectors probably have other opportunities for access with the CFPB, one of the most valuable aspects of the recently disbanded CAB was that it provided a forum for fruitful and productive conversations among a variety of stakeholders in consumer finance, which often generated valuable insights for the Bureau and the CAB members. This will be missing from the new CAB. The lack of a multitude of perspectives is ironic given that a stated reason for disbanding the former CAB was to increase the diversity of viewpoints on the Board.
“We are also disappointed that Acting Director Mulvaney and his appointees have chosen to limit the service of these CAB members to one year instead of three years as with previous CAB members. Because the CAB meets only a few times a year, it takes one year for members to become familiar with the CFPB and other CAB members, and to get up to speed. New members will be just getting started when their terms end. One year does not permit members to provide the type of rich feedback and perspective that traditionally has been the role of the CAB.
As consumer advocates and academics with decades of experience among us, we are committed to continue working to ensure that consumer protection and fair market practices are given due priority. We must ensure that the most financially vulnerable Americans are protected from the worst abuses of predatory consumer practices.
Ann Baddour, former chair of the disbanded CAB and director of the Fair Financial Services Project of Texas Appleseed stated that “We hope the new panel builds on the work of the previous boards, and ensures that the CFPB stays on track in meeting its consumer protection mission. We are happy to be a resource to them in their important work.”
Ann Baddour, Texas Appleseed; former Consumer Advisory Board Chair
Lynn Drysdale, Jacksonville Area Legal Aid, Inc.; former Consumer Advisory Board Vice Chair
Kathleen Engel, Suffolk University Law School
Ruhi Maker, Empire Justice Center
Lisa Servon, University of Pennsylvania
Chi Chi Wu, National Consumer Law Center
Josh Zinner, Interfaith Center on Corporate Responsibility
(Affiliations for informational purposes only)."

Meanwhile state Attorneys General from New York and 13 other states have delivered a letter of opposition, on September 5. NY AG Barbara Underwood said, "the Equal Credit Opportunity Act was enacted because of our country’s sordid history of credit discrimination — and it’s unbelievable that the CFPB is considering refusing to use it to protect consumers." The letter  signed by the attorneys general of North Carolina, California, Illinois, Maine, Maryland, Massachusetts, Minnesota, New Jersey, New York, Oregon, Rhode Island, Vermont, Virginia and the District of Columbia stated that they "will not hesitate to uphold the law if CFPB acts in a manner contrary to law with respect to interpreting ECOA." We'll have more on that - and this: the US Office of the Comptroller of the Currency Joseph Otting on August 28 began a process to weaken and take the community out of the 1977 Community Reinvestment Act. Now in September he has given conditional approval to a fintech bank, Varo Bank of Varo Money, which will include only Salt Lake City, Utah in its CRA assessment area. The CEO is Colin Walsh, previously of scandal plagued Wells Fargo. But will the FDIC, which has not for now joined Otting's crusade, hand out deposit insurance? On August 29 when the OCC purported to solicit public comments for the CRA evaluation of banks in the fourth quarter of 2018 and even first quarter of 2019, the OCC's notice did not even mention or link to Otting's proposal to change the CRA. Here is what the OCC e-mailed out on August 29. So the community is not informed - but the industy is. Even open sources are full of banks and their lobbying groups celebrating and preparing to support Otting's proposal(s). From Louisiana, there is this: "GAME FACE ConsumerBankers GC Steve Zeisel is ready for today’s Membership Call regarding the @USOCC ANPR on #cra. #intense. #focus." On the other hands, there's this, on and of which we'll have more. The protagonist, akin to Scott Pruitt until recently at the US Environmental Protection Agency, is Joe Otting. While Reuters blandly noted that he is "a former banker," the bank he headed, OneWest, was accused of predatory lending and when its acquisition by the CIT Group was challenged by Fair Finance Watch, CRC and others Otting arranged for seemingly counterfeit or compelled comments supporting the merger. In this light, Question 11 of his "Advanced Notice of Proposal Rulemaking" or ANPR is noteworthy: "11. How can community involvement be included in an evaluation process that uses a
metric-based framework?" How, indeed. Here's what Otting wrote as a banker, already long public, in support of his merger:

"From: Otting, Joseph M [at] owb.com
Sent: Wednesday, January 07, 2015 5:00 PM
Cc: Haas, Alesia Jeanne; Tran, Cindy; Kim, Glenn
Subject: Support For OneWest Bank
 
Dear Friends,
 
We were excited to announce on July 21, 2014, that IMB HoldCo LLC, the parent company of OneWest Bank entered into a merger agreement with CIT Group Inc. As part of the applications for regulatory approval of the transaction, our regulators are interested in the perspectives of the public. We are writing you to seek your support of the Bank and pending merger. This merger, if approved, would create the largest bank headquartered in Southern California with a full suite of banking products and services, which will allow us to better serve our customers. We would retain and grow jobs and are committed to continuing and expanding our efforts to serve the economic and development needs of our community. I would like to ask you to take a moment to click on the link below and submit a letter of support adding any of your own words or thoughts.
 
Please submit your letter by clicking here, or by visiting our website at www.OneWestBank.com/merger-support (if the link isn't clickable or part of the link is cut off, please copy and paste the entire URL into your browser's address bar and press Enter)
 
Thank you for your support.  Best wishes for a successful 2015 and please call on me if I can ever be of assistance.
 
Joseph M. Otting
President and CEO
OneWest Bank N.A.
888 East Walnut Street
Pasadena, CA 91101"

   There will be fight-back, under NCRC's TreasureCRA campaign. Watch this site - including on actual enforcement of CRA.

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