Enforcement Actions Flashcards
1
Q
When can the FDIC initiate a formal or informal enforcement action?
A
When a bank is found to be in an unsatisfactory condition.
2
Q
What law or regulation governs FDIC formal enforcement actions?
A
The Federal Deposit Insurance Act (FDI)
3
Q
What is the final supervisory step before initiating a formal enforcement action?
A
An informal enforcement action.
4
Q
What is an informal action?
A
Voluntary commitments made by the Board designed to correct identified deficiencies and ensure compliance with federal and state banking laws and
regulations.
Informal actions are neither publicly disclosed nor legally enforceable.
5
Q
What are the most common informal actions?
A
Board resolutions
MOUs
6
Q
What is a Board Resolution?
A
Informal commitment from Board, at the request of Regional Management, to take corrective action on deficiencies.
May be drafted by a bank Board as a proactive measure.
7
Q
What is an MOU
A
Informal agreement between bank and FDIC drafted by the RO staff to address and correct identified weaknesses.
Used when a Board resolution will not adequately address deficiencies.
8
Q
What is a formal enforcement action?
A
Actions taken pursuant to the powers granted to the FDIC’s Board of Directors under Section 8 of the FDI Act. Formal enforcement actions are publicly available records.
9
Q
What are the formal enforcement actions available?
A
Termination of insurance
Cease & Desist Order
Order of Restitution
Temporary Cease & Desist Order
Removal and Prohibition Order
Temporary Suspension Order
Suspension Order
Civil Money Penalties
10
Q
What is a Cease & Desist Order?
A
Order to halt violations and require affirmative action to correct conditions resulting from violations.
If issued against a specific person is termed a PC&D.
11
Q
What is the name of the formal enforcement action where a bank voluntarily agrees to enter a Cease and Desist order?
A
Consent Order
12
Q
Who can receive a Cease and Desist order?
A
Institution affiliated party (IAP), bank, officer/director.
13
Q
What is a restitution order?
A
Requires a bank or IAP to disgorge any unjust enrichment to consumers or take other actions to stop consumer harm.
14
Q
What is a temporary Cease & Desist order?
A
Issued in the most severe situations to immediately halt particularly egregious practices pending a formal hearing on permanent Cease and-Desist Orders issued pursuant to Section 8(b).
15
Q
What is a removal and prohibition order?
A
Order to remove an IAP for a bank and prohibit specific activities or industries.
ex: director, officer, employee, stockholder, agent
16
Q
What is a temporary suspension order?
A
Temp suspension of an IAP pending hearing on an Order of Removal, if the IAPs continued participation poses a immediate threat to the bank or depositors.
17
Q
What is a suspension order?
A
Issued to IAPs who are
charged with felonies involving dishonesty or a breach of trust pending the disposition of the criminal charges.
18
Q
What are Civil Money Penalties?
A
CMPs are assessed to sanction a bank, IAP, or individual for violation, breach of fiduciary duty/practice. Also to deter future occurrences.
19
Q
What is considered for CMPs to IAPs?
A
12 factors that measure the breadth and severity of the problem are considered, including consumer harm, cooperation, and supervisory history. Additionally, the asset size of the institution is taken into account.
20
Q
What is considered for CMPs to bank’s/individuals?
A
CMP matrices to determine appropriateness and level of CMPs.
21
Q
Does a bank have the right to appeal an enforcement action?
A
Only Informal and determinations regarding the institutions level of compliance with a formal EA.
However, if a determination results in citing an additional EA then the new EA cant be appealed.
22
Q
Can formal enforcement actions be appealed?
A
Generally No, it becomes unappealable with the FDIC initiates a formal investigation or provides written notice to the bank of the investigation or referral to the Attorney General or HUD for FL concerns.
23
Q
In what situations can a formal enforcement action be appealed?
A
If the FDIC fails to pursue a formal EA within:
120 days of written notice to the bank
120 days of date Attorney General referral is returned
120 days of notice to HUD
However this time can be extended if all parties agree to work toward a mutual solution.
24
Q
True or false: the appeal process will delay a formal enforcement action?
A
False, appeal procedures will not impede, affect or delay a formal EA in progress or affect the FDIC’s authority to take an EA.
25
What is an alternative to Restitution or CMPs?
A supervisory letter as a means of communicating a supervisory concern when circumstances do not warrant a formal action.
26
What compliance ratings typically result in an EA?
3, 4, or 5. However, EAs can be issued with higher rated banks if the circumstances permit.
27
When should an informal EA be pursued?
Generally appropriate for 3 rated banks or where formal actions are considered but not pursued (ex: when CMP matrix suggests no CMP).
28
When should a formal EA be pursued?
Bank with 4 or 5 rating, evidence of unsafe or unsound practices, concern over high volume or severity of violations.
With higher ratings when actions such as CMPs/restitution must be taken based on actionable misconduct.
29
What is actionable misconduct? (4)
-action that results in violation, cease & desist order.
-participation, counseling, aiding or abetting in a violation
-engagement in unsafe or unsound practice
-breach of fiduciary duty
30
What is an Institution Affiliated Party? (IAP)
-Director, officer, employee, controlling shareholder for a bank
-anyone required to file change-in-control notice
-shareholder, consultant, joint venture partner, etc. who participates in conduct of the bank
-and contractor who knowingly or recklessly participates in violations
31
What is the statute of limitations on formal enforcement actions?
5 years
32
What must be done to modify a formal EA?
Issue a modification order
33
Under what circumstances my formal EAs be terminated?
-significant improvement to conditions and circumstances at bank
-provisions of formal action have been satisfied
-a new action has ben issued replacing existing action
-Conditions have deteriorated, and new action initiated.
34
How is a formal EA terminated?
Most expire after 5 years but Cease & Desist, consent orders, and other orders without an expiration date must be issued a termination order.
35
When would the FDIC be required to refer a matter to the Department of Justice?
Whenever the FDIC has reason to believe a bank has engaged in a pattern or practice of discouraging or denying applicants for credit in violation of ECOA.
36
When would the FDIC be required to notify HUD of a fair lending matter?
When the FDIC has reason to believe a bank has engaged in conduct that violates both ECOA and the FHA.
37
True or False: The RO is not required to open a consult with the WO and Legal prior to making referrals or providing notice to the DOJ or HUD
False. A consult is required before notice or referral.
38
When might a regulatory agency use informal EAs?
To address weak operating practices, deteriorating financial conditions, or actionable misconduct.
When findings or recommendations in an ROE will not, by themselves, attain timely corrective action from management.
39
True or False: The use of an informal EA prevents the FDIC from subsequently pursuing a formal EA.
False: and MOU or Board Resolution do not prevent the FDIC from issuing a subsequent formal EA.
40
Can informal enforcement actions be modified?
Yes, if changes occur that warrant a modification the FDIC may suggest a bank modify a BBR or agree to modify an MOU. Modification procedures a similar to procedures to initiate a new action.
41
Under what conditions can an informal EA be terminated? (5)
-Bank is in significant compliance with the action
-Corrective action is satisfactory and complete
-EA has been partially met, and a new EA has been issued to address outstanding provisions
-Lack of compliance led to issuing a new EA
-Bank merges or closes.
42
Can the FDIC terminate a BBR?
No, since the FDIC is not a party to BBRs they cannot terminate them. However, if a BBR contains requirements for reporting progress to the RO, the RO may notify the bank that reporting is no longer necessary.
43
How does the FDIC document Informal EA Terminations?
-letter from RD to Bank Board
-File Memo from RO reviewer stating action was terminated
44
What is the definition of an unsafe or unsound practice?
Action or Lack of Action that is contrary to accepted standards of prudent bank operation that may result in risk or loss or damage to the bank, shareholders, or the DIF.
45
What compliance practices are deemed unsafe or unsound?
-Operating without adequate internal controls and adequate audit program
-Failure to provide adequate supervision and direction over bank officers
-Failure to implement an adequate CMS.
46
What are statutes and laws?
Interchangeable terms that refer to legislation after it has been passed by congress and signed into law by the president.
47
What are rules and regulations?
Agency statement designed to implement, interpret, or prescribe law or agency procedures/policy. They are binding and have the force and effect of law.
48
What is supervisory guidance?
Documents issued in request to industry questions or concerns to provide guidance on agency expectations or priorities regarding practices in a particular area. Non binding and EAs cannot be taken based on guidance.
49
When can the FDIC issue a Cease & Desist order?
When a Bank or IAP has or will engage in :
-Unsafe/Unsound practice
-violation of law/reg., written agreement with FDIC, or written condition imposed by FDIC for any application.
50
Can a bank stipulate to a C&D?
Yes, this waives the right to an administrative enforcement hearing, appeal and consents to the order issuance.
51
True or False: The FDIC may allow a bank to consent to the issuance of a C&D without admitting or denying engagement of any unsafe or unsound practices or violations.
True in appropriate cases.
52
What happens if a bank does not stipulate or consent to a C&D?
The FDIC issues a notice of charges, which starts the formal administrative enforcement proceeding.
53
When does a C&D become final and effective?
30 Calendar days after the order is served to the IAP or bank. Unless the order is issued with consent, which is effective on the date of issuance.
54
What can happen if a bank or IAP fails to comply with a C&D?
-CMPs
-Petition Court to enforce the order
-Remove and Prohibit IAP officials
-Terminating insurance
55
What is considered required evidence to support a notice of charges with a C&D?
-FDIC requests to the Board
-Promises of Actions taken by bank, Board, or Officers
-Meeting minutes
-Bank records
56
Is a complete ROE required as evidence for a C&D?
No as long as sufficient evidence is otherwise available.
57
Under what conditions can a C&D be terminated?
-Substantial compliance
-Lack of compliance resulting in new order
-Merge or closure
-Provisions partially met, with new order issued to address remaining provisions
-other facts render order unnecessary.
58
Under what conditions can the FDIC issue a temporary C&D?
Person/Entity engaging in false advertising, misuse of FDIC names/logos, and misrepresentations of FDIC-insured status. CMPs will be issued.
Bank or IAP has or will violate a law, regulation, or written agreement. Or has/will participate in unsafe/unsound practices. All of which, will likely result in insolvency, substantial loss of assets/earnings, weak condition.
59
What must a Temporary C&D be accompanied by?
A C&D
60
True or False: If a Bank or IAP consents to the issuance of a C&D, there is no need to proceed with a temporary C&D. Rather the C&D can be issued immediately.
True.
61
When does a temporary C&D order become effective and when does it expire?
Effective upon service and expires when C&D becomes final.
62
When can DCP pursue an Personal C&D (PC&D)?
If an IAP engaged in Unsafe & Unsound practices or violated a law or reg.
63
What are C&Ds titled if a bank or IAP stipulate to the order vs. the order being issued through litigation?
Stipulate - Consent Order
Litigation - Order to Cease and Desist.
64
What do C&D orders do?
Require a bank or IAP to stop the action indicated in the order and requires affirmative action to correct any issues.
65
Under what misconduct can the FDIC Remove or Prohibit a Bank or IAP? (3)
Misconduct:
-Directly or Indirectly violated a law/reg, C&D, written agreement between bank and FDIC, or condition in connection with an application.
-Unsafe & Unsound banking practice
-Breach of Fiduciary Duty.
66
What three categories must be met for a Removal or Prohibition Order?
Misconduct
Effect
Culpability
67
What effects must be met to remove or prohibit a bank or IAP based on their misconduct?
must have caused financial loss/damage, prejudice to depositors, received financial gain or benefit.
68
What factors of culpability demonstrate misconduct under a Removal and Prohibition order? (2)
Involved personal dishonesty
Willful disregard for the Safety and Soundness of bank.
69
Does the following scenario meet the requirements for a formal EA. If so, which one?
IAP violated a law, violation resulted in financial loss to the bank, and action involved personal dishonesty.
Yes, Removal or Prohibition order as it meets the misconduct, effect, and culpability requirements.
70
When are Removal/Prohibition stipulated orders generally effective?
Immediately upon issuance.
71
When are Removal/Prohibition orders generally effective following adjudication?
Within 30 days of issuance to give the IAP/Bank time to appeal.
72
What is the statute of limitations on a Removal/Prohibition order?
6 years
73
What does a removal/prohibition order do?
Person may not participate in any manner in conduct or affairs of a bank.
may not solicit, procure, transfer, attempt to transfer, vote/attempt any proxy, consent or authorization for any bank voting rights. May not violate any voting agreement approved by the FBA. May not vote for a director, serve, or act as an IAP.
74
What are the four basic categories of modifications for a Removal/prohibition order?
Modifications are requests to the FDIC from the IAP with the removal/prohibition order.
Single action - seek to engage in one time activity
Series of actions - seek to engage in multiple actions
Employment at specific Bank
Termination of order
75
What conditions must a person demonstrate to modify/terminate a removal/prohibition order?
Fitness to participate/conduct affairs of bank
Participation wont post risk to bank safety and soundness
Participation wont erode public confidence in bank.
76
On what grounds can the FDIC issue a temporary suspension/prohibition action?
action is necessary for protection of the bank or interests of depositors
Party has received written notice of suspension order.
77
How long does a temporary suspension order remain in effect?
FDIC dismisses charges
Final order is issued
Court issues a stay of the temp order.
78
What other actions can be taken against individuals in conjunction with a removal/prohibition action?
CMPs or Restitution.
79
When is termination of insurance used?
Very rarely. But usually in situations when other actions or administrative remedies have proven ineffective.
80
In what two scenarios can the FDIC require restitution from a bank under a C&D?
Bank/IAP was unjustly enriched by the violation/practice
Violation involved a reckless disregard for the law/reg.
81
When can the FDIC assess CMPs? (5)
Violations of law/reg
Violations of temp orders
Violations of certain conditions imposed in writing
Violations of written agreements with the FDIC
Misconduct that demonstrates unsafe or unsound practices
82
What is the difference between Restitution and CMPs?
Restitution is remedial action to compensate bank or consumer for losses suffered from misconduct or violations. (paid to parties)
CMPs are punitive and are meant to punish banks for misconduct, violations, practices, and breaches. (paid to US treasury)
83
What are the grounds for restitution?
Bank/IAP unjustly enriched because of a violation or unsafe/unsound practice
violation/practice involved reckless disregard for the law or prior order.
84
Under which law/reg is restitution mandatory?
TILA
85
How are CMPs assessed?
Based on the severity (three tiers) of the violation and the level of culpability and can be levied for each day the conduct continues.
86
What falls under CMP tier 1? (4)
Violation of law/reg,
final/temp order,
condition imposed in writing connected to an application, and
any written agreement with FDIC.
87
What falls under CMP tier 2?
Violations under tier 1 that:
-is part of a pattern of misconduct
-causes more than minimal loss to the bank
-results in financial gain/benefit to bank or IAP.
88
What falls under CMP tier 3? (2)
Violations under tier 1 &2 that:
Knowingly or recklessly cause substantial loss to bank, or substantial financial gain to bank or IAP
Most egregious cases of misconduct.
89
Name 5 Criteria where CMPs would be recommended? (8)
-violation causes substantial consumer harm
-violation creates substantial risk to bank
-violation is willful, flagrant, or shows bad faith from Bank
-violation directly/indirectly involves an IAP that received material benefit
-Previous actions were ineffective
-weaknesses in third party oversight cause consumer harm.
-Misreporting/failure to report GMI where required by law.
-violation exposes bank to illegal activity
90
How is the amount of CMPs determined?
Assessment factors for CMPs must be balanced against the mitigating factors.
91
In determining the appropriate amount of CMPs, the assessment factors must be balanced against what mitigating factors in the FDI Act? (4)
Not the mitigating factors in the matrix.
-Financial resources and good faith of Bank
-gravity of violation
-history of previous violations, practices or breaches.
-such other factors as justice requires
92
What are the assessment factors to consider for CMPs? (12)
-evidence violation was intentional
-duration and frequency of violation
-continuation of violation after notification
-failure to cooperate with early resolution
-evidence of concealment of violation
-threat of loss, actual loss or harm to bank or consumer
-evidence of financial gain/benefit
-evidence of restitution paid
-history of violation
-poor CMS or absence of CMS
-tendency to engage in violations, Unsafe/unsound practices.
-existence of EA
93
Where are CMPs required under TILA?
1026.42 S129E
Violations to appraisal independence requirements for open-end and closed-end consumer credit transactions secured by a principal dwelling.
94
When is payment required for CMPs?
At the same time the bank/IAP stipulates the order. Unless other arrangements are documented.
95
What factors are included in the CMP matrix for individuals?
Assessment and mitigation
-Intent
-Pecuniary Gain or other Benefit to IAP
-loss or risk of loss
-Impact other than loss
-History including previous administrative action or criticism
-Concealment
-IAPs responsibility for presence/absence of internal controls and its effectiveness
-Continuation after notification
-Number of instances of misconduct at issue
-Duration of Misconduct prior to notification or discovery
Mitigating Factors:
-Cooperation and Disclosure
-Restitution and Corrective Actions
96
What factors are included in the CMP matrix for Banks?
-Consumer Harm or harm to public confidence; Unsafe/Unsound practice; Violation
-Intent
-Concealment
-History of Previous EA/commitment to prevent misconduct
-Continuation after notification
-Duration of misconduct prior to notification/discovery
-Frequency of misconduct prior to notification/discover
-Financial gain/benefit and risk of or loss to bank
-Previous misconduct or criticism
-Effectiveness of compliance program and internal controls
-Restitution and Other Remedial Action
Cooperation
97
Which Matrix is used for Compliance and FL violations?
The standard CMP individual or bank matrix.
Flood violations have their own matrix.
98
What are the mandatory penalty violations under the Flood Act that require CMPs? (5)
When a bank has engaged in a pattern or practice of Making, Increasing, Extending, or renewing loans in violation of:
-requirement to purchase flood insurance
-escrow requirements
-Notice requirements regarding SFH and availability of federal disaster relief assistance.
-notice requirements regarding loan servicer and change of servicer
Or failing to provide notice of force placement or to force place flood insurance coverage
99
True or false: The FDIC can separately assess discretionary CMPs against a bank/IAP for violations of the Flood Act.
True, the FDIC has discretion to do so separate from Mandatory Penalty Violations.
They are assessed using the standard bank/IAP CMP Matrix.
100
What constitutes a pattern or practice for Flood CMPs?
Activity that is repeated, intentional, regular, usual, deliberate, or institutionalized.
101
Name 5 factors that would support a pattern or practice under the Flood Act?
-Conduct has a common source or cause
-Conduct grounded in policies, procedures, or practice
-Noncompliance over an extended time period
-Significant number of violations relative to number of transactions
-History of flood violations with no steps toward corrective action
-Audit program failed to identify or address deficiencies in flood act compliance
-Lack of effective flood policies/procedures and or training
102
What is the statute of limitations for Flood CMPs?
4 years from the violation date.
103
What should examiners do if they identify mandatory penalty violations of flood during an exam?
Instruct Bank to review universe of loans from the last 4 years to determine total number of violations.
104
Can a bank receive flood CMPs on a purchased loan?
Yes, if the bank determines at any point that a purchased loan is not in compliance with the reg they are responsible for correcting the deficiency otherwise risk violations and CMPs.
105
Can a bank receive flood CMPs on a Participation loan?
Yes, even if one bank is leading compliance activities on the loan. All banks participating may be subject to CMPs if a violation is identified.
106
Can a bank receive flood CMPs for loans originated prior to a charter conversion?
Yes, except the FDIC should avoid assessing CMPs for violations identified by the previous regulatory agency.
107
What is the max amount of CMPs for flood mandatory penalty violations?
Up to $2,000 per violation per loan maximum.
Where a loan involves multiple violations, the total penalties may be greater than $2,000 as the penalty is assessed per violation not per loan.
108
How is the amount of flood CMPs determined?
Determine base CMP amount per violation:
(Penalty amounts increase for repeat violations found in last 2 exams)
-Tier 1 violation
-Tier 2 violation
Multiply percentage based on the asset size of bank.
Amount to be assessed per violation = [Base CMP amount(s)] x [Institution size factor].
109
What are considered Tier 1 CMP violations under Flood?
Violations of:
-Force placement notice
-Special flood hazard notice
-Servicer notice
110
What are considered Tier 2 CMP violations under flood?
Violations of:
-Failure to insure or provide adequate insurance for term of loan
-Failure to escrow
-Failure to force place
111
What are the Base CMP amounts for Tier 1 vs. Tier 2 violations?
1st exam -
T1:$500 T2:$1,000
2nd exam -
T1:$1,000 T2:$1,500
3rd exam -
T1:$2,000 T2:Max
112
What are the institution size factors for flood violations?
Asset Size:
$500MM or greater: 100%
$250,001M to less than $500MM: 75%
$250MM or less: 50%
113
When are CMPs or restitution terminated?
When a bank stipulates to an acceptable EA.
