FDIC Consumer Compliance Examination Manual - March 2021 PDF

IV. Fair Lending — Fair Lending Laws and Regulations Fair Lending Laws and Regulations Introduction This overview provides a basic and abbreviated discussion of federal fair lending laws and regulations. It is adapted from the Interagency Policy Statement on Fair Lending issued in March 1994. NOTE...

IV. Fair Lending — Fair Lending Laws and Regulations Fair Lending Laws and Regulations Introduction This overview provides a basic and abbreviated discussion of federal fair lending laws and regulations. It is adapted from the Interagency Policy Statement on Fair Lending issued in March 1994. NOTE: Further information regarding the technical requirements of fair lending are incorporated into the sections ECOA V 7.1 and FCRA VIII 6.1 of this manual. The Fair Housing Act (FHAct) prohibits discrimination in all aspects of “residential real-estate related transactions,” including but not limited to: • Making loans to buy, build, repair, or improve a dwelling; • Purchasing real estate loans; • Selling, brokering, or appraising residential real estate; or • Selling or renting a dwelling. Lending Discrimination Statutes and Regulations The Equal Credit Opportunity Act (ECOA) prohibits discrimination in any aspect of a credit transaction. It applies to any extension of credit, including extensions of credit to small businesses, corporations, partnerships, and trusts. The FHAct prohibits discrimination based on: The ECOA prohibits discrimination based on: • Race or color; • Race or color; • National origin; • Religion; • Religion; • National origin; • Sex; • Sex; • • Marital status; Familial status (defined as children under the age of 18 living with a parent or legal custodian, pregnant women, and people securing custody of children under 18); or • Age (provided the applicant has the capacity to contract); • Handicap. • The applicant’s receipt of income derived from any public assistance program; or • The applicant’s exercise, in good faith, of any right under the Consumer Credit Protection Act. The Consumer Financial Protection Bureau’s Regulation B, found at 12 CFR part 1002, implements the ECOA. Regulation B describes lending acts and practices that are specifically prohibited, permitted, or required. Official staff interpretations of the regulation are found in Supplement I to 12 CFR part 1002. The Dodd–Frank Wall Street Reform and Consumer Protection Act of 2010 further amended the ECOA and covers: The Department of Housing and Urban Development’s (HUD) regulations implementing the FHAct are found at 24 CFR Part 100. Because both the FHAct and the ECOA apply to mortgage lending, lenders may not discriminate in mortgage lending based on any of the prohibited factors in either list. Under the ECOA, it is unlawful for a lender to discriminate on a prohibited basis in any aspect of a credit transaction, and under both the ECOA and the FHAct, it is unlawful for a lender to discriminate on a prohibited basis in a residential real-estate-related transaction. Under one or both of these laws, a lender may not, because of a prohibited factor: • Fail to provide information or services or provide different information or services regarding any aspect of the lending process, including credit availability, application procedures, or lending standards. • Legal action statute of limitations for ECOA violations is extended to five years (effective July 21, 2010); and • Discourage or selectively encourage applicants with respect to inquiries about or applications for credit. • A disclosure of the consumer’s ability to receive a copy of any appraisal(s) and valuation(s) prepared in connection with first-lien loans secured by a dwelling is to be provided to applicants within 3 business days of receiving the application (effective January 18, 2014). • Refuse to extend credit or use different standards in determining whether to extend credit. • Vary the terms of credit offered, including the amount, interest rate, duration, or type of loan. • Data collection for loans to minority-owned and women-owned businesses (awaiting final regulation); FDIC Consumer Compliance Examination Manual – March 2021 IV – 1.1 IV. Fair Lending — Fair Lending Laws and Regulations • Use different standards to evaluate collateral. • Treat a borrower differently in servicing a loan or invoking default remedies. • Use different standards for pooling or packaging a loan in the secondary market. A lender may not express, orally or in writing, a preference based on prohibited factors or indicate that it will treat applicants differently on a prohibited basis. A violation may still exist even if a lender treated applicants equally. A lender may not discriminate on a prohibited basis because of the characteristics of • An applicant, prospective applicant, or borrower. • A person associated with an applicant, prospective applicant, or borrower (for example, a co-applicant, spouse, business partner, or live-in aide). • The present or prospective occupants of either the property to be financed or the characteristics of the neighborhood or other area where property to be financed is located. Finally, the FHAct requires lenders to make reasonable accommodations for a person with disabilities when such accommodations are necessary to afford the person an equal opportunity to apply for credit. Types of Lending Discrimination The courts have recognized three methods of proof of lending discrimination under the ECOA and the FHAct: • Overt evidence of disparate treatment; • Comparative evidence of disparate treatment; and • Evidence of disparate impact. Disparate Treatment The existence of illegal disparate treatment may be established either by statements revealing that a lender explicitly considered prohibited factors (overt evidence) or by differences in treatment that are not fully explained by legitimate nondiscriminatory factors (comparative evidence). Overt Evidence of Disparate Treatment. There is overt evidence of discrimination when a lender openly discriminates on a prohibited basis. Example: A lender offered a credit card with a limit of up to $750 for applicants aged 21-30 and $1500 for applicants over 30. This policy violated the ECOA’s prohibition on discrimination based on age. expresses — but does not act on — a discriminatory preference: Example: A lending officer told a customer, “We do not like to make home mortgages to Native Americans, but the law says we cannot discriminate and we have to comply with the law.” This statement violated the FHAct’s prohibition on statements expressing a discriminatory preference as well as Section 1002.4(b) of Regulation B, which prohibits discouraging applicants on a prohibited basis. Comparative Evidence of Disparate Treatment. Disparate treatment occurs when a lender treats a credit applicant differently based on one of the prohibited bases. It does not require any showing that the treatment was motivated by prejudice or a conscious intention to discriminate against a person beyond the difference in treatment itself. Disparate treatment may more likely occur in the treatment of applicants who are neither clearly well-qualified nor clearly unqualified. Discrimination may more readily affect applicants in this middle group for two reasons. First, if the applications are “close cases,” there is more room and need for lender discretion. Second, whether or not an applicant qualifies may depend on the level of assistance the lender provides the applicant in completing an application. The lender may, for example, propose solutions to credit or other problems regarding an application, identify compensating factors, and provide encouragement to the applicant. Lenders are under no obligation to provide such assistance, but to the extent that they do, the assistance must be provided in a nondiscriminatory way. Example: A non-minority couple applied for an automobile loan. The lender found adverse information in the couple’s credit report. The lender discussed the credit report with them and determined that the adverse information, a judgment against the couple, was incorrect because the judgment had been vacated. The non-minority couple was granted their loan. A minority couple applied for a similar loan with the same lender. Upon discovering adverse information in the minority couple’s credit report, the lender denied the loan application on the basis of the adverse information without giving the couple an opportunity to discuss the report. The foregoing is an example of disparate treatment of similarly situated applicants, apparently based on a prohibited factor, in the amount of assistance and information the lender provided. If a lender has apparently treated similar applicants differently on the basis of a prohibited factor, it must provide an explanation for the difference in treatment. If the lender’s explanation is found to be not credible, the agency may find that the lender discriminated. There is overt evidence of discrimination even when a lender IV – 1.2 FDIC Consumer Compliance Examination Manual – March 2021 IV. Fair Lending — Fair Lending Laws and Regulations Redlining is a form of illegal disparate treatment in which a lender provides unequal access to credit, or unequal terms of credit, because of the race, color, national origin, or other prohibited characteristic(s) of the residents of the area in which the credit seeker resides or will reside or in which the residential property to be mortgaged is located. Redlining may violate both the FHAct and the ECOA. ensure their effective implementation. While these procedures apply to many examinations, agencies routinely use statistical analyses or other specialized techniques in fair lending examinations to assist in evaluating whether a prohibited basis was a factor in an institution’s credit decisions. Examiners should follow the procedures provided by their respective agencies in these cases. Disparate Impact For a number of aspects of lending — for example, credit scoring and loan pricing — the “state of the art” is more likely to be advanced if the agencies have some latitude to incorporate promising innovations. These interagency procedures provide for that latitude. When a lender applies a racially or otherwise neutral policy or practice equally to all credit applicants, but the policy or practice disproportionately excludes or burdens certain persons on a prohibited basis, the policy or practice is described as having a “disparate impact.” Example: A lender’s policy is not to extend loans for single family residences for less than $60,000.00. This policy has been in effect for ten years. This minimum loan amount policy is shown to disproportionately exclude potential minority applicants from consideration because of their income levels or the value of the houses in the areas in which they live. The fact that a policy or practice creates a disparity on a prohibited basis is not alone proof of a violation. When an Agency finds that a lender’s policy or practice has a disparate impact; the next step is to seek to determine whether the policy or practice is justified by “business necessity.” The justification must be manifest and may not be hypothetical or speculative. Any references in these procedures to options, judgment, etc., of “examiners” means discretion within the limits provided by that examiner’s agency. An examiner should use these procedures in conjunction with his, or her, own agency’s priorities, examination philosophy, and detailed guidance for implementing these procedures. These procedures should not be interpreted as providing the examiner greater latitude than his, or her, own agency would. For example, if an agency’s policy is to review compliance management systems in all of its institutions, an examiner for that agency must conduct such a review rather than interpret Part II of these interagency procedures as leaving the review to the examiner’s option. The procedures emphasize racial and national origin discrimination in residential transactions, but the key principles are applicable to other prohibited bases and to nonresidential transactions. Factors that may be relevant to the justification could include cost and profitability. Even if a policy or practice that has a disparate impact on a prohibited basis can be justified by business necessity, it still may be found to be in violation if an alternative policy or practice could serve the same purpose with less discriminatory effect. Finally, evidence of discriminatory intent is not necessary to establish that a lender’s adoption or implementation of a policy or practice that has a disparate impact is in violation of the FHAct or ECOA. Finally, these procedures focus on analyzing institution compliance with the broad, nondiscrimination requirements of the ECOA and the FHAct. They do not address such explicit or technical compliance provisions as the signature rules or adverse action notice requirements in Sections 1002.7 and 1002.9, respectively, of Regulation B. These procedures do not call for examiners to plan examinations to identify or focus on potential disparate impact issues. The guidance in this Introduction is intended to help examiners recognize fair lending issues that may have a potential disparate impact. Guidance in the Appendix to the Interagency Fair Lending Examination Procedures provides details on how to obtain relevant information regarding such situations along with methods of evaluation, as appropriate. Consistent with the Federal Financial Institutions Examination Council Interagency Fair Lending Examination Procedures, FDIC examiners evaluate fair lending risk during the scoping process by completing three general steps: General Guidelines These procedures are intended to be a basic and flexible framework to be used in the majority of fair lending examinations conducted by the FFIEC agencies. They are also intended to guide examiner judgment, not to supplant it. The procedures can be augmented by each agency as necessary to FDIC Consumer Compliance Examination Manual – March 2021 Part I — Examination Scope Guidelines Background 1. Examiners develop an institutional overview to assess an institution’s inherent fair lending risk. As part of this process, examiners become familiar with an institution’s structure and management, supervisory history, loan portfolio, and credit and market operations. Once examiners understand a financial institution’s lending operations they can identify the level of inherent risk. Inherent risk for fair lending is broad-based and would impact a range of products if no controls or other mitigating factors were in place to control the risk. Inherent risk arises from the general IV – 1.3 IV. Fair Lending — Fair Lending Laws and Regulations conditions or the environment in which the institution operates. The risk could be present based on an institution’s structure, supervisory history, the composition of the loan portfolio, and the credit and market operations by their respective agencies, the record from past examinations, and other relevant guidance. This phase includes obtaining an overview of an institution’s compliance management system as it relates to fair lending. 2. If an examiner believes that an institution has more than minimal inherent fair lending risk, the examiner should then identify the product(s) or product group(s) to review. The products or product groups selected may differ based on the type of discrimination. For example, for purposes of pricing, an examiner may select HMDA loans for further review, while for underwriting, the examiner may select consumer loans. Examiners are not expected to review all products for discrimination risk if there is more than minimal inherent risk. Rather, examiners should use their judgment and consider the following when deciding which loan products warrant further review. Examiners would then identify any discrimination risk factors and assess an institution’s compliance management system (CMS) for fair lending. Understanding the strength of an institution’s CMS is necessary to properly assess whether an institution has sufficiently mitigated applicable discrimination risk factors. If there is minimal inherent risk, no additional analysis is necessary and the fair lending review can conclude. When selecting focal points for review, examiners may determine that the institution has performed “self-tests” or “self-evaluations” related to specific lending products. The difference between “self-tests” and “self-evaluations” is discussed in the Using Self-Tests and Self-Evaluations to Streamline the Examination section of the Appendix. Institutions must share all information regarding “selfevaluations” and certain limited information related to “selftests.” Institutions may choose to voluntarily disclose additional information about “self-tests.” Examiners should make sure that institutions understand that voluntarily sharing the results of self-tests will result in a loss of confidential status of these tests. Information from “selfevaluations” or “self-tests” may allow the scoping to be streamlined. Refer to Using Self-Tests and Self-Evaluations to Streamline the Examination in the Appendix for additional details. 3. For those discrimination risk factors that have not been fully mitigated, examiners compile a list of potential focal points and identify which should be pursued as a focal point. The FDIC has developed the Fair Lending Scope and Conclusions Memorandum (FLSC) to implement a standard nationwide format for documenting the scope and conclusions of fair lending reviews. FLSC has been adopted as a means of focusing the examiner’s attention to the areas that pose the greatest unmanaged fair lending risk to the institution. It incorporates the Interagency Fair Lending Examination Procedures 1 and assists in documenting the types of fair lending risks that are present; the controls that management has put in place to manage the risk; the effectiveness of these controls; why the particular focal point(s) are chosen; the level of review conducted; and the results of any additional analysis that was conducted. The FLSC is included in section IV-3.1 of this manual. The scope of an examination encompasses the loan product(s), market(s), decision center(s), time frame, and prohibited basis and control group(s) to be analyzed during the examination. These procedures refer to each potential combination of those elements as a “focal point.” Setting the scope of an examination involves, first, identifying all of the potential focal points that appear worthwhile to examine. Then, from among those, examiners select the Focal Point(s) that will form the scope of the examination, based on risk factors, priorities established in these procedures or Scoping may disclose the existence of circumstances — such as the use of credit scoring or a large volume of residential lending — which, under an agency’s policy, call for the use of regression analysis or other statistical methods of identifying potential discrimination with respect to one or more loan products. Where that is the case, the agency’s specialized procedures should be employed for such loan products rather than the procedures set forth below. Setting the intensity of an examination means determining the breadth and depth of the analysis that will be conducted on the selected loan product(s). This process entails a more involved analysis of the institution’s compliance risk management processes, particularly as it relates to selected products, to reach an informed decision regarding how large a sample of files to review in any transactional analyses performed and whether certain aspects of the credit process deserve heightened scrutiny. Part I of these procedures provides guidance on establishing the scope of the examination. Part II (Compliance Management Review) provides guidance on determining the intensity of the examination. There is naturally some interdependence between these two phases. Ultimately the scope and intensity of the examination will determine the record of performance that serves as the foundation for agency conclusions about institutional compliance with fair lending obligations. The examiner should employ these procedures to arrive at a well-reasoned and practical conclusion about how to conduct a particular institution’s examination of fair lending performance. 1 The interagency examination procedures are presented in their entirety in Part III of this section of the manual. IV – 1.4 FDIC Consumer Compliance Examination Manual – March 2021