UPDATE: For Bankers, Proposed Regulations Don't Get Too Ugly
18 June 2009 - 7:59AM
Dow Jones News
For bankers, there is some good, some bad, but very little ugly
in President Barack Obama's proposal to reshape financial services
regulation.
The proposal eases the rules to open branches outside a bank's
home state, and it leaves state-chartered banks virtually
untouched.
The proposed Consumer Financial Protection Agency has teeth, and
its impact on bank lending, consumer product innovation and pricing
might be considerable.
But the new agency would mean a sea change only for companies
currently not supervised at all by bank regulators, ranging from
private equity to check cashers. For bankers, the new agency might
well level the playing field.
Finally, if the proposal became law, "it would effectively end
the debate about whether commerce and banking should be mixed,"
said Don Ogilvie, the independent chairman of the Deloitte Center
for Banking Solutions, a think tank. Industrial loan companies,
which make commercial loans but don't necessarily take deposits,
would have to become bank holding companies, regulated by the
Federal Reserve.
The proposal says establishing such firms "has been a common way
for commercial companies and financial firms (including large
investment banks) to get access to the federal bank safety net but
avoid the robust governmental supervision and activity
restrictions" of the Bank Holding Company Act. Wal-Mart Stores Inc.
(WMT) and Home Depot Inc. (HD) applied for such status, but later
abandoned their efforts.
"Overall and under the circumstances, it's a reasonable
response. We need some type of reform," said Dick Evans, the
chairman and chief executive of Cullen/Frost Bankers Inc. (CFR).
"It doesn't change our lives" as a nationally chartered bank, at
least in its current form.
The demise of the Office of Thrift Supervision, and the
consolidation of thrift oversight with the Office of the
Comptroller of the Currency into one new national bank regulator,
will have advantages for OCC-regulated national banks.
Under thrift rules, it was easy to expand from one state into
another -- while nationally chartered banks have to apply state
banking laws in the states to which they expand. That means in the
case of Indiana and Georgia, for example, banks that desire to open
branches have to apply for a state banking charter -- or buy one,
as Fifth Third Bancorp (FITB) had done two years ago when it
expanded to Atlanta and Augusta. Banks would no longer be at a
disadvantage on expanding to new states if that part of the
proposal became law.
The demise of the OTS likely means thrifts face tougher
regulation. George Engelke Jr., the chairman and chief executive of
Astoria Financial Corp. (AF), worried that the new regulator won't
understand his business model as well as the OTS did. Astoria
specializes in jumbo mortgages, but has come through the financial
crisis in considerably better shape than other thrifts and banks.
Now, "we are paying the price for what others did" to bring down
the financial system, he said. "We'll have a lot more
regulation."
Engelke is expressing what bankers are likely most concerned
about: how to deal with the new regulatory environment, said Ralph
E. Sharpe, a lawyer with Venable LLP who was formerly the director
of enforcement at the Office of the Comptroller of the
Currency.
But the most important change will stem from tougher regulation
overall; risk management and capital levels will be watched more
closely than before the crisis, but banks would face tougher
scrutiny regardless of any changes in the regulatory structure, he
said.
The consumer protection agency is a mixed bag. On the one hand,
it is the one element that immediately ignited resistance from
bankers. It "could be the golden bear," Astoria's Engelke said -- a
monstrous animal threatening bankers through the empowerment of
consumers. He fears it could open the door to customers forcing
banks to allow short-selling properties -- selling homes at prices
below the value of the mortgage -- to avoid default, and other
measures.
The American Bankers Association called it needless because it
creates "powers to mandate loans and services that go well beyond
consumer protection."
After all, the consumer protection agency might well, for the
first time, regulate mortgage brokers as well as home appliance
stores selling on credit. That is one piece of regulation being
hoped for by even the most conservative banker.
"In theory, it looks good," Cullen/Frost's Evans said about the
agency, though he added he is also somewhat worried.
The agency is also the one element that will impact community
banks regulated by state bank supervisors -- of which there are
about 6,000. But it leaves states with some flexibility,
particularly in passing stricter rules than the federal government
might implement. "States have passed predatory lending laws for
decades," said Katherine Woody of the Conference of State Bank
Supervisors; some stricter than national legislation and struck
down by federal regulators.
The CSBS said in a statement, "The administration's plan is a
strong endorsement of the value of our dual-banking system.
Preserving the role of state authorities as a check to federal
authority will prevent industry consolidation into a handful of
megabanks that are too big to regulate and too big to fail."
-By Matthias Rieker, Dow Jones Newswires; 212-416-2471;
matthias.rieker@dowjones.com