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A Guide to Enforcing the Community Reinvestment Act Richard Marisco New York Law School

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A Guide to Enforcing the Community Reinvestment Act Richard Marisco New York Law School Fordham Urban Law Journal Volume 20 | Number 2 Article 2 1993 A Guide to Enforcing the Community Reinvestment Act Richard Marisco New York Law School Follow this and additional works at: https://ir.lawnet.fordham.edu/ulj Part of the Property Law and Real Estate Commons Recommended Citation Richard Marisco, A Guide to Enforcing the Community Reinvestment Act, 20 Fordham Urb. L.J. 165 (1993). Available at: https://ir.lawnet.fordham.edu/ulj/vol20/iss2/2 This Article is brought to you for free and open access by FLASH: The orF dham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Urban Law Journal by an authorized editor of FLASH: The orF dham Law Archive of Scholarship and History. For more information, please contact [email protected]. A GUIDE TO ENFORCING THE COMMUNITY REINVESTMENT ACT Richard Marsico* TABLE OF CONTENTS I. Introduction ........................................... 170 II. Step One: Assessing Community Credit Needs .......... 180 A. Defining the Community ........................... 180 B. Gathering Socioeconomic Data about the Community's Residents ............................. 180 1. Demographic Data ............................. 181 2. Income and Employment Data .................. 181 3. Business D ata .................................. 181 4. Housing Data .................................. 182 5. Quality of Life Data ............................ 182 6. Community Outreach Data ..................... 182 C. Preparing a Community Credit Needs Statement .... 182 1. Socioeconomic Profile ........................... 183 2. Credit Needs Statement ......................... 184 III. Step Two: Gathering Information about a Bank's CRA R ecord ................................................ 185 A. Choosing a Bank to Evaluate ....................... 185 B. Locating Information about the Bank's CRA Record ... ......................................... 186 1. The Bank ...................................... 186 a. CRA Disclosure Requirements .............. 186 b. The Home Mortgage Disclosure Act ........ 187 * Associate Clinical Professor of Law, New York Law School, New York, N.Y. This Guide would not have been possible without the insights I gained from representing The Community Coalition for Fair Banking, a Project of East Harlem Interfaith, on CRA issues. Thus, my special thanks goes to their present and former staff and volun- teers, including Rev. John Vaughn, Lori Keitz, Claudette Spence, Jasmine Hopper, Car- los Permell, Lisa Garcia, Madelyn Marquez, Pete Putnam, Yul Anderson, Lillian Bent, John Berry, George Brooks, Kevin Powell, and Gene Sklar. I also wish to thank several other organizations with whom I have worked on CRA issues, especially the Association for Housing and Neighborhood Development; Ecumenical Community Development Or- ganization, Interfaith Center for Corporate Responsibility, Inner City Press/Community on the Move, and Long Island Housing Services. Finally, for their assistance and support for this project and their insights on CRA, I thank Jean Marie Brescia, Raymond Bres- cia, Carol Buckler, John Coates, Michele Cotton, Keri Gould, Larry Grosberg, Cathy Jenkins, Richard Krulik, Karen Sherman, and my research assistants at New York Law School. FORDHAM URBAN LAW JOURNAL [Vol. XX c. Information from the Banks ................. 189 d. The Bank's CRA Officer .................... 190 e. Log of Activities ............................ 190 2. Banking Regulators as Sources of Information .. 190 a. The Federal Reserve System ................. 190 b. Other Federal Banking Regulators ........... 191 c. State Banking Regulators .................... 192 3. Other Agencies ................................. 192 4. Newspapers, Periodicals, Computer Databases, and Electronic M edia ........................... 193 5. Other CBOs, Community Surveys, and Testing.. 193 6. Information not Publicly Available .............. 194 IV. Step Three: Evaluating the Bank's Record of Meeting Community Credit Needs .............................. 194 A. The Board's Standards for Evaluating a Bank's CRA Performance: General Framework .................. 195 1. The Process for Seeking Lending Opportunities . 195 2. Credit Allocation ............................... 196 3. Bank Discretion ................................ 197 4. Safety and Soundness ........................... 198 B. The Board's Standards for Evaluating a Bank's CRA Record: The Thirteen CRA Assessment Criteria .... 199 1. Category One: Ascertainment of Community Credit N eeds ................................... 200 Assessment Criterion: Activities conducted by the institution to ascertain the credit needs of its community, including the extent of its efforts to communicate with community members regarding the credit services being provided by the institution .................................. 200 Assessment Criterion: The extent of participation by the institution's board of directors in formulating policies and reviewing the institution's performance with respect to the purposes of the Community Reinvestment Act .. 203 2. Category Two: Marketing and Types of Credit Extended ....................................... 208 Assessment Criterion: The extent of the institution's marketing and special credit-related programs to make members of the community aware of the credit services offered by the institution ...................................... 208 1993] CRA GUIDE Assessment Criterion: The institution's origination of residential mortgage loans, housing rehabilitation loans, home improvement loans, and small business and small farm loans within its community; or the purchase of such loans originated in its community .................... 211 a. Loans Outside a Bank's CRA Community ... 212 b. Forms of Credit that Satisfy the CRA ....... 213 (i) Home Mortgage Loans ................. 215 (I) The Extent of a Bank's Home Mortgage Lending ................. 216 (II) Flexible Lending Criteria ......... 216 (III) Other Forms of Support for Home Mortgage Lending ................ 218 (ii) Multi-family Housing Lending ......... 219 (iii) Miscellaneous Housing Finance Program s, ............................. 219 (iv) Small Business Lending ................. 221 (v) Consumer Loans ....................... 225 (vi) Charity, Grants, and Technical A ssistance ............................. 225 Assessment Criterion: When an identified community credit need exists, the institution takes a leadership role in meeting that need and affirmatively participates in government-insured, guaranteed, or subsidized loan programs for housing, small businesses, small farms, and rural developm ent .................................... 226 3. Category Three: Geographic Distribution of Credit and Record of Opening and Closing Offi ces .......................................... 227 Assessment Criterion: Whether the institution's delineated community meets the purpose of the CRA and does not exclude low and moderate income neighborhoods .......................... 227 Assessment Criterion: The geographic distribution of the institution's credit extensions, credit applications, and credit denials .................. 230 a. Using HMDA to Demonstrate Geographic Loan Disparities ............................ 230 (i) Determining Whether a bank's Home Mortgage Loans Indicate a Pattern of FORDHAM URBAN LAW JOURNAL [Vol. XX Discrimination Against Low Income/ Minority Census Tracts ................. 230 (ii) Using HMDA Data to Demonstrate Redlining .............................. 234 b. The Board's Treatment of Geographic Loan Disparities in Bank Lending Records ........ 236 (i) The Board's General Policies ........... 236 (ii) The Board's Opinion of the Usefulness of HMDA Data ........................ 237 (iii) The Board's Method of Analyzing Disparities in the Geographic Distribution of a Particular Bank's Loans .................................. 239 Assessment Criterion: The institution's record of opening and closing offices and providing services at offices ........................... ... 241 a. Branch Closings and Openings .............. 241 b. Customer Services ........................... 243 4. Category Four: Discrimination and Other Illegal Credit Practices ................................ 244 Assessment Criterion: Any practices intended to discourage applications for the types of credit set forth in the institution's CRA statement ........ 244 Assessment Criterion: Evidence of prohibited discriminatory or other illegal credit practices... 244 a. Policies and Practices that Have a Discriminatory Impact ...................... 244 b. Intentional Discrimination ................... 247 c. Compliance with Notice and Recording Requirements ............................... 248 d. Discrimination Not Related to Lending ...... 249 5. Category Five: Community Development ........ 249 Assessment Criterion: The institution's participation, including investments, in local community development and redevelopment projects or programs ............................ 249 Assessment Criterion: The institution's ability to meet various community credit needs based on its financial condition and size, legal impediments, local economic conditions, and other factors .................................... 253 Assessment Criterion: Other factors that, in the 1993] CRA GUIDE regulatory authority's judgment, reasonably bear upon the extent to which an institution is helping to meet the credit needs of its entire community ................................................ 255 V. Step Four: Attempting to
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