Author Archives: Robert W. Wenger, Jr.

About Robert W. Wenger, Jr.

Linkedin Profile | Robert Wenger has worked in banking and real estate finance since 1972, serving clients in California, Oregon, Nevada, Utah, Arizona, Colorado, Kansas, Nebraska and Hawaii. During his career, Mr. Wenger has been responsible for originating and servicing agricultural loans and managing over 100,000 acres of agricultural property for an insurance company, managing a $450 Million special asset portfolio for a niche lender and managing special assets and loan operations at three community banks. Mr. Wenger is a California real estate broker and has provided expert witness services in the areas of banking, real estate finance and agriculture for the past 10 years and has instructed home buyer education classes for the past 7 years.

Bank Penalties – Logical???

Have you ever given consideration to the ultimate destination of huge fines levied on U.S. banks and other financial institutions in recent years? Billion dollar fines do not grab the attention they commanded a few years ago simply since it is occurring more frequently. And that’s not saying anything about the smaller multi-million dollar fines that barely make the headlines these days.

Various sources indicate the fines fall into basic categories, i.e., civil money penalties, and disgorgements or required restitution.

Disgorgements or Required Restitution

Disgorgements or required restitution payments make sense in theory, since they are intended to provide recovery for damaged businesses or consumers. However, the determination of damage is complex. For example, scores of home buyers contend their financial well-being was damaged by unaffordable mortgages obtained during the housing boom in the mid-2000s. These damages were caused by loans with balloon payments, payment choices that resulted in negative amortization, step-up mortgages, and other sub-prime loan terms. Some borrowers were qualified on “stated income.” In other words, the lender took the loan applicant’s word for what his or her income was. In many cases, the applicant’s income was grossly overstated.

Borrowers have a personal responsibility to basically understand their business transactions and deal honestly, or so it would seem. Having faith in our justice system, one would expect a balance to be struck between personal responsibility and wrongdoing on the part of the bank. Thus, settlements with businesses and consumers would take into consideration their culpability in the failed transactions and be distributed appropriately.

Civil Penalties: Where Does the Money Go and Who Ends Up Paying?

What about civil money penalties? In a recent multi-billion dollar settlement, over half the settlement was allocated to civil money penalties. Where does that money go – to enforcement efforts and development of other programs? Federally regulated banks and other financial institutions are typically billed directly for the cost of exams conducted by their regulators. Don’t regulatory exams encompass “enforcement”? If an institution is determined by the regulators to be out of compliance, memorandums of understanding or cease and desist orders are issued and regulatory monitoring is increased until compliance is once again accomplished. In extreme cases, regulators can take control of an errant institution. The increased costs of monitoring are also passed along to the institution.

Once again, what about civil money penalties?? Who ends up paying? General business economics says money coming in to a business must exceed money going out or the business will become insolvent and eventually be forced to close. Assuming the business provides relevant goods and services that are in demand, price increases are the most likely method of covering cash shortfalls and maintaining profit margins. So, who pays the tab? Good customers, businesses and consumers who need the services to conduct their daily lives. Ultimately, the penalty is nothing more than a speed bump for the business as costs are passed along and customers pay the increased cost.

What percentage of business owners and consumers would you assume read a news article and understand exactly what their bank was penalized for? Those articles most likely do not cause customers to pack up and move their accounts elsewhere. Rather than levying unreasonable penalties that affect innocent businesses and consumers, perhaps there are other more basic solutions that put an institution’s reputation on the line and informs its customers there is a problem. One such solution may be to require a noncompliant institution to prominently post notices in each of their business locations and website stating: Banking regulators have found this institution to be out of compliance with Regulation ___ because it has a pattern and practice of ______.

Ok, so maybe that’s at the other end of the penalty spectrum, but the point is that all factors must be considered and penalizing innocent people is unacceptable.

Lender Liability

Lender Liability – It’s Still Out There

Lender liability can come in many forms and can park on a lender’s doorstep at any time. Following is a partial list of instances where lender liability may exist:

  • • Unauthorized release of confidential information
  • • Failure to provide promised financing
  • • Faulty documentation or procedures
  • • Faulty business advice
  • • Inadequate disclosure

Business development and lending officers lead a life that requires sophistication and discipline. They’re pushed by management to build loan totals, cross sell various non-loan bank services, and stay close to the customer to build commitment to the bank / customer relationship. This may mean attending events with a customer, inviting them over to watch a ball game or any of a number of things to develop a bond.

When things are going well on both sides of the relationship, life is good. But, when things get off track, memories get short and negotiations often fall apart. That’s when attorneys get involved and lawsuits are filed. How do you avoid it? Sometimes, it can’t be avoided, but there are things that can be done to reduce the possibility of it happening.

First of all, a clear guideline and discipline must be ingrained in the culture of the lending organization. Lenders must understand what is appropriate and what is not, even if it means role-playing in a training session. Customers come from all levels of business. They cannot be expected to take the lead.

Key precautionary actions that can be taken:

  • Extra care should be taken to avoid over-promising in sales calls
  • Agreements should be in writing
  • Written agreements should state there are no agreements other than those included in the written agreement
  • If there is a deviation from the agreement, a written modification should be executed
  • Business and personal relationships must be differentiated
  • If lender has a strong personal relationship with a customer, it would be a good idea to move the customer to a different account officer
  • Consulting with a customer is good from the perspective that the lender generally has a broad view of the customer’s industry and financing alternatives
  • Consultations should be generic and not disclose other clients’ trade information
  • Referrals and advice should always give the customer multiple choices on how they operate their company or who they choose to do business with

What if you find yourself toe-to-toe in a lender liability lawsuit?

  • • Make sure you have an attorney that understands lender liability.
  • Discovery should be thorough. Seemingly small details can make a big difference.

A good expert can sift through details and identify and present points that support your side of the case.