Material Loss Review of Freedom Bank, Bradenton, Florida
As required by section 38(k) of the Federal Deposit Insurance Act (FDI Act), the Office of Inspector General (OIG) conducted a material loss1 review of the failure of Freedom Bank (FB), Bradenton, Florida. On October 31, 2008, the State of Florida, Office of Financial Regulation (OFR), closed FB and named the FDIC as receiver. On November 10, 2008, the FDIC notified the OIG that FBís total assets at closing were $276.2 million, and the estimated loss to the Deposit Insurance Fund (DIF) was $91.8 million. As of December 31, 2008, the estimated loss to the DIF increased to $92.9 million.
When the DIF incurs a material loss with respect to an insured depository institution for which the FDIC is appointed receiver, the FDI Act states that the Inspector General of the appropriate federal banking agency shall make a written report to that agency which reviews the agencyís supervision of the institution, including the agencyís implementation of FDI Act, section 38, Prompt Corrective Action (PCA); ascertains why the institutionís problems resulted in a material loss to the DIF; and makes recommendations for preventing such loss in the future.
The audit objectives were to: (1) determine the causes of the financial institutionís failure and resulting material loss to the DIF and (2) evaluate the FDICís supervision2 of the institution, including implementation of the PCA provisions of section 38.
Appendix 1 contains details on our objectives, scope, and methodology; and Appendix 2 contains a glossary of terms. Acronyms used in the report are listed in Appendix 4.
This report presents the FDIC OIGís analysis of FBís failure and the FDICís efforts to ensure FBís management operated the bank in a safe and sound manner. The FDIC OIG plans to issue a series of summary reports on our observations on the major causes, trends, and common characteristics of financial institution failures resulting in a material loss to the DIF. Recommendations in the summary reports will address the FDICís supervision of the institutions, including implementation of the PCA provisions of section 38.
BACKGROUNDFB, a state-chartered nonmember bank, opened for business and was insured by the FDIC effective May 17, 2005.3 FB, which was headquartered in Bradenton, Florida:
FBís loan portfolio did not include subprime loans or non-traditional mortgage products. In addition, FB did not have a holding company, subsidiaries, or affiliates. At one time, FBís local marketplace was characterized by rapidly appreciating real estate values. However, real estate values experienced a significant downturn, contributing to the severe deterioration in FBís asset value, excessive operating losses, and severely eroded capital, and the real estate construction industry was negatively impacted.
DSCís Atlanta Regional Office (ARO) and OFR alternated safety and soundness examinations of FB, conducting
four full-scope examinations from October 2005 through March 2008.4 Additionally, DSC conducted a visitation concurrently with the October 2005 and March 2007 OFR examinations and in October 2008. At the March 2007 examination, as indicated in the figure that follows, FBís composite rating was downgraded to 3,5 indicating some level of supervisory concern in one or more of the component areas. One year later, at FBís March 2008 examination, the bankís composite rating was downgraded to 5, indicating extremely unsafe and unsound practices or conditions, a high probability of failure, and significant risk to the DIF.
Further, with respect to selected component ratings, as indicated in the figure below, FBís management, which had been rated 2 at the OFR 2005 examination, was downgraded to 3 at the FDICís 2006 examination. At the subsequent OFR March 2007 examination, management and asset quality were both rated 3, and liquidity was rated 2. As indicated below, the ratings for management, asset quality, and liquidity were downgraded at the March 2008 examination.[ D ]
Details on FBís financial condition as of September 2008 and for the 3 preceding calendar years follow in Table 1 on the next page.
Table 1: Financial Condition of FB
RESULTS IN BRIEF
FB failed primarily due to bank managementís aggressive pursuit of asset growth concentrated in high-risk CRE loans with inadequate loan underwriting and a lack of other loan portfolio and risk management controls. In addition, FB had a lending incentive compensation program without substantive credit quality controls that contributed to the bankís rapid loan portfolio growth and rewarded loan officers without consideration of actual loan performance. Resulting losses severely eroded FBís earnings and capital and negatively impacted liquidity, leading to the bankís failure and a material loss to the DIF.
Management. FBís Board of Directors (BOD) did not ensure that bank management identified, measured, monitored, and controlled the risk of the institutionís activities. In addition, the BOD did not implement corrective actions in response to bank examiner and audit recommendations. FB revised its business plan to incorporate aggressive asset growth in CRE lending without implementing commensurate risk management controls. This aggressive growth strategy continued during and after the significant downturn in the economy, beginning in 2006, and resulted in a high level of problem assets and overall deterioration in the bankís financial condition. Rapid asset growth, declining asset quality, and poor earnings further increased liquidity risk, but bank management did not put into place the necessary controls for liquidity management, including an adequate contingency liquidity plan (CLP). Additionally, without implementing adequate provisions to mitigate credit quality risks, management established a loan incentive compensation plan that encouraged loan officers to rapidly grow the bankís loan
portfolio. Further, FBís president/chief executive officer (CEO)óa dominant officialó had a history of rapidly growing banks without establishing adequate risk management controls.
Asset Quality. Examiners noted concerns about FBís asset quality at each examination and visitation. FBís loan portfolio, with CRE/ADC loan concentrations, included high-risk terms, such as collateral dependency, interest-only provisions with balloon payments, and interest reserves. Due to FBís unsound loan underwriting and administration practices, FB did not (1) effectively identify loan portfolio risk; (2) obtain adequate financial information on borrowers and guarantors; (3) ensure appropriate use, control, and reporting of interest reserves; and (4) appropriately report to the BOD. Further, FBís allowance for loan and lease losses (ALLL) was not adequate. As asset quality declined and losses were recognized, FBís liquidity position became deficient, and earnings and capital were eroded.
Liquidity. The bankís liquidity position was affected by FBís increasing dependence on non-core/volatile sources of funding, such as large time and brokered deposits, to fund its significant loan growth. FB also used FHLB advances. At the 2008 examination, FBís liquidity position was inadequate considering FBís declining financial condition and declining capital, potential deposit withdrawals, and insufficient access to secondary and emergency funds.
Supervision. The FDIC and OFR conducted timely examinations of FB, and the FDIC conducted visitations and off-site monitoring. The FDICís investigation that was conducted for the approval of FBís deposit insurance noted concerns regarding FBís president/CEO, and the OFR and FDIC examinations and visitations conducted in October 2005 and May 2006, respectively, identified the weaknesses in management and asset quality that ultimately led to FBís failure. However, supervisory action was not taken commensurate with the risks these weaknesses posed to the de novo6 institution. Rather, the FDIC did not take supervisory action until it issued a joint MOU with OFR after the OFRís March 2007 examination. More timely supervisory action, directed at the performance of FBís president/CEO, high-risk lending, weak credit underwriting and administration practices, and the bankís increasing risk should have been taken as a result of the FDICís 2006 examination. The FDIC has taken steps to improve its supervisory review of de novo business plans, CLPs, and oversight of financial institutions that have CRE loan concentrations and use interest reserves.
The joint FDIC/OFR MOU addressed asset quality deficiencies and requested a revised FB business plan that addressed growth expectations and steps to improve earnings. In May 2008, the FDIC required FB to submit a capital restoration plan (CRP). In September 2008, the FDIC issued a Cease and Desist Order (C&D) requiring the bank to take various actions, including increasing capital and improving management and asset quality. The FDIC notified FB of applicable restrictions under PCA in May and August 2008 after the bank became less than well capitalized but did not issue a PCA Directive.
The FDIC has authority to take a wide range of supervisory actions. In the case of FB, however, supervisory actions were not timely and effective in addressing the bankís most significant problems.
The OFRís 2005 examination resulted in a 2 rating for FB management, which was the only CAMELS component rated at this examination.7 At subsequent examinations, the management rating for this de novo bank was progressively downgraded due to deficient BOD and management performance, risk management practices that were inadequate, and excessive risk exposure. In 2006, about 1 year after the bank opened, the FDICís examination concluded that management was less than satisfactory. The BOD and management had not established appropriate policies, procedures, controls, or underwriting to adequately address the risks associated with the rapid growth experienced and planned for the de novo institution. In addition, in 2006 and 2007, FB rapidly expanded the bankís branch operations and continued to pursue its aggressive growth strategy in CRE/ADC lending, without regard to ensuring sound underwriting, credit administration, and other risk management controls were implemented and followed.
Ineffective BOD and Management
Examiner concerns with FBís BOD and management were noted at the bankís first OFR full-scope examination and the FDICís visitation in October 2005ó5 months after the bank openedóand continued through the 2006, 2007, and 2008 examinations and visitations. FBís BOD permitted an environment that included a high-risk business strategy; operations controlled by a dominant president/CEO who was known by DSC to rapidly grow banks and price loans below peer banks; and weak risk management practices. Furthermore, FBís management routinely failed to effectively implement audit and examination recommendations and to ensure that adequate risk management controls were implemented and followed to effectively identify, measure, monitor, and control bank operations and risks. At times, management was argumentative and not receptive to examiner recommendations and comments. Table 2, which follows, provides examples of examiner comments and recommendations related to FBís BOD and management.
Table 2: Examples of Examiner Comments and Recommendations Regarding FBís BOD and Management Performance
Risk Management. FBís BOD and management used an aggressive, high-risk business strategy for FB, which was evident in three primary areasóhigh-risk lending in CRE/ADC loans, new branch offices to obtain core deposits, and use of high-cost/volatile liquidity sources to fund asset growth. The BOD and bank management primarily focused on growth and did not ensure that adequate risk management controls were implemented and followed and did not implement corrective actions in a timely and effective manner to adequately address deficiencies identified by examiners and auditors. DSCís Supervisory History Memorandum, dated September 10, 2008, concluded that FBís BOD and management ignored warnings, criticisms, and recommendations of regulators and auditors regarding loan underwriting, oversight, administration, and economic conditions and projections. In just over 3 years, the bank failed.
After the bank opened in May 2005, FBís management immediately implemented an aggressive, rapid growth strategy. Total assets from December 2005 through September 2008 grew, on a cumulative basis, over 200 percent from $89.9 million to over $270.8 million. Despite such growth and an increased risk profile resulting from CRE/ADC lending, the bank did not adequately identify, measure, monitor, and report regularly to the BOD on these concentrations, speculative lending, and the use of interest reserves.
The October 2005 FDIC visitation concluded that FBís risk management practices needed improvement to control loan growth. The May 2006 examination noted that risk management practices related to real estate or economic conditions, overreliance on particular industry sectors, and individual asset concentrations needed to be enhanced. In addition, examiners concluded that the BOD and management had not established appropriate risk management practices, procedures, controls, or loan underwriting to adequately address the risk associated with the rapid growth experienced since FBís opening on May 17, 2005. Rapid growth was also noted at the May 2006 examination, which concluded that total assets from the October 2005 examination to the May 2006 examination had grown about 200 percent. The examiners also concluded that exposure to all sectors of CRE constituted only 190 percent of Tier 1 Capital that and the ADC exposure constituted less than 100 percent, as of March 31, 2006. However, the examiners also noted that the bankís plans for continued growth should be accompanied by measurable policy limits on CRE exposure, with periodic reports to the BOD that measured the exposure against the established limits.
The ROEs for the March 2007 and March 2008 examinations also identified deficiencies in the bankís risk management practices. During the OFRís exit meeting for the March 2007 examination, examiners expressed concern regarding FBís growth. In response, FBís BOD and management rejected examiner concerns about a possible downturn in the market or potential for further credit deterioration within the bankís loan portfolio. FBís president/CEO maintained that continued growth was imperative to sufficiently cover fixed operating costs. In addition, the March 2008 examination concluded that the bankís financial condition had substantially deteriorated and that the BOD was responsible for the institutionís deterioration. Examinersí primary concern was that FBís management had not appropriately monitored credit concentration in light of the weakening economic market
conditions. Because the bankís risk management and loan administration practices were inadequate, the BOD was slow to recognize the increasing risk in FBís loan portfolio and lending program and continued to make risky loans, increasing the bankís exposure, as residential real estate values started to decline.
FBís branching activities were also a high-cost approach since the strategy increased operating expenses. The branching activities allowed FB to compete for core deposits in a highly-competitive market. Thus, the cost of these deposits increased the interest paid, cost of branch operations, and loss of income, which was problematic to FB.
To fund its rapid growth, FB employed a high-risk funding structure, centered on branching, to attract core deposits and high-cost/volatile, non-core deposits. FBís core deposits grew from $27 million in September 2005 to $211 million in September 2008 (a growth rate of 681 percent), and non-core funding grew from $9 million in September 2005 to $99 million in September 2007, FBís highest level of non-core funding (a growth rate of 1,000 percent in 2 years). A heavy reliance on non-core deposits to fund asset growth is a risky business strategy because such deposits are high-cost/volatile sources of funding that may be restricted as an institutionís financial condition deteriorates. (These issues are more fully discussed in the Liquidity section of this report.)
Deviations from FBís Business Plan. FB significantly deviated from its initial and subsequent business plans by quickly exceeding financial projections and budgets and realizing significantly high net losses during its de novo period. In addition, FB did not implement risk management controls that were outlined in its business plan, contributing to the ineffective management of the bankís high risk lending. FBís business plan indicated that the bank would make commercial, residential, and construction loans and projected those loans to account for 61 percent of total loans for each of the first 3 years. However, the original business plan did not provide information on the significant growth and concentration of its loan portfolio in CRE/ADC loans, which presented high risk for the bank and undue risk to the DIF. Within 6 months of opening and having substantially more capital than originally planned, FB submitted an amended business plan and financial projections reflecting significantly higher growth in its first 3 years due to growth opportunities in the market.
FBís initial business plan did not include specific plans for branch expansion. The plan stated that FB would consider opening a branch office if conditions allowed within the first 3 years of operation in compliance with safety and soundness factors, as dictated by the regulatory authorities. However, after receiving deposit insurance, revised business plans indicated that the bank would open at least eight branch offices by 2008. Further, FBís initial business plan stated that the bank would not solicit brokered deposits as a source of funding. Nevertheless, the bank started obtaining brokered deposits during the last quarter of 2006, garnering more than $21 million in such deposits by December 31, 2006, and became increasingly reliant on this non-core funding source. FB submitted revised business plans in August 2005, January 2006, and September 2007, which addressed revised financial data, plans to open branch offices, and/or use brokered deposits. As a result of the deposit insurance application process, conducted January 26, 2005 through March 2, 2005, DSC concluded that the overall risk
tolerance level for FBís proposed operations would be reasonably conservative. However, FBís actual operations, aggressive business strategy, and associated risk after receiving deposit insurance proved not to be conservative.
Examiners reported concerns with FBís revised business plan in 2005, 2006, 2007, and 2008. For example, in May 2006, examiners concluded that although FB had not materially departed from the types of activities in the business plan that had been approved with the bankís application, FBís growth and branching materially exceeded projected plans. The initial business plan projected $53.3 million in total assets at the end of the first year, but actual total assets as of March 31, 2006, about 10 months after FB opened, totaled $125.8 millionórepresenting more than a 136 percent increase. In addition, the original business plan projected total deposits of $40 million, $57.5 million, and $67.5 million, respectively, in the first 3 years of operation. However, as of March 31, 2006óless than 1 year after FB openedódeposits totaled $93.7 million and exceeded FBís initial projection for the bankís first 3 years of operation by over $26 million.
Along with the submission of initial applications for federal deposit insurance, proposed financial institutions are expected to submit business plans that include information on a bankís business strategy and financial data for a 3-year period. According to the FDIC Statement of Policy on Applications for Deposit Insurance, and in compliance with sections 5 and 6 of the FDI Act, the FDIC must be assured that the proposed institution does not present an undue risk to the DIF. The FDIC expects that proposed institutions will submit a business plan commensurate with managementís capabilities and financial commitment of the incorporators. Business plans that rely on high-risk lending or significant funding from sources other than core deposits require specific documentation as to the suitability of the proposed activities for an insured institution. Similarly, additional documentation of a business plan is required where markets to be entered are intensely competitive or economic conditions are marginal. We consider significant deviations from business plans to be a significant concern, which we will address in our summary reports covering multiple bank failures.
Dominant Bank Official. Before the FDIC approved FBís application for deposit insurance, the FDICís Report of Investigation (ROI), dated March 2, 2005, reported that FBís president/CEO was known to have rapidly grown banks in the past by paying above-market rates on deposits and pricing loans below peer banks. In addition, the president/CEO was associated with soft earnings and limited liquidity. The investigating examiner was aware of the marginal performance of the president/CEO at two other financial institutionsówhere he was the founding president/CEOóand concluded that appropriate supervision and BOD oversight at FB, together with a seasoned executive management team, should mitigate that concern. According to section 21 of the DSC Case Managers Procedures Manual, the FDIC can include standard and nonstandard conditions8 in its Final Order for Deposit Insurance. Despite the concerns reported in the ROI regarding FBís president/CEO, the FDICís Final Order
for Deposit Insurance did not include conditions related to the dominant president/CEO and rapid growth of the bank or ensure that FB implemented adequate risk management controls to mitigate rapid growth.
The president/CEO acknowledged problems with his past performance and committed to avoiding similar occurrences and ensuring that FB was operated in a safe and sound manner. However, the president/CEO did not achieve his commitments. FBís president/CEO controlled the bankís lending operations and funding decisions, was the chairman of the loan committee; and, according to the March 2008 ROE, led the bankís executive management and oversaw FBís focus on aggressive growth. According to examiners:
Certain ROEs issued by the FDIC for other institutions that had been associated with the FBís proposed president/CEO documented how, under his management, the institutionsí aggressive pursuit for rapid asset growth negatively affected overall bank performance and precipitated additional supervisory monitoring. Nevertheless, DSC approved FBís application for deposit insurance with the consideration that the remaining members of the bankís management team would exhibit sufficient conservatism and independence in order to ensure the success of FBís proposed business plan. During FBís existence, however, the FDIC identified similar risk factors and practices at FBórapid growth, nonexistent earnings, and limited liquidity, indicating that management by the president/CEO was characteristic of his prior management techniques and that the remaining members of management had not exhibited sufficient independence to ensure FBís success. Ultimately, the president/CEO failed to operate FB in a safe and sound manner.
DSC officials stated that FBís BOD and management did not fully comprehend the seriousness of the bankís problems and take necessary actions to correct deficiencies. Under management by the president/CEO, FB failed in a little over 3 years, with a resultant $92.9 million loss to the DIF.
Incentive Compensation Plan. According to the FDICís March 2008 ROE, FBís loan incentive compensation plan encouraged loan officers to rapidly grow the bankís loan portfolio. The incentive program focused on rewarding a loan officer for originating loans based on a percentage of estimated first-year loan income minus expenses. Since FB utilized interest reserves extensively for its ADC loans; therefore, first-year loan performance was usually
based on capitalized interest income. Accordingly, loan officers may have been compensated based on the bankís ability to use interest reserves in order to mask actual loan performance. Further, the plan did not contain sufficient compensating controls to mitigate credit quality risks, except when loan officers may have been on probation for reasons that may have included, excessive past-due loans, poor loan quality, insufficient underwriting, or excessive loan documentation exceptions. The use of this compensation program and lack of mitigating controls encouraged loan production without appropriate emphasis on initial loan quality.
We could not determine when FBís loan incentive program actually began. The program was discussed in the March 2007 and March 2008 examination results but was not mentioned in the October 2005 or May 2006 ROEs. The FDICís March 2007 visitation concluded that the incentive program allowed residential lenders to receive production-based commissions for both secondary and in-house loans with no adjustment for subsequent performance quality (such as past-due loans, nonaccruals, or credit losses). The FDICís March 2008 ROE recommended that FB management develop controls to address credit quality, such as longer-term payouts based on the establishment of loan credit quality criteria. Examiners stated that FBís management should also consider whether loans underwritten with a high loan-to-value ratio or other policy exceptions would also be eligible for the incentive plan. The March 2008 examination work papers indicated that the bankís incentive program had been suspended.
The DSC Risk Management Manual of Examination Policies (Examination Manual) states that the reasonableness of compensation policies is one of many factors examiners use to rate BOD and managementís performance. In addition, the standard Risk Management Examination Request List (Request List) asks the bank to summarize loan officer and management incentive programs, if any.
On November 12, 2008 the FDIC, along with the other federal regulatory agencies, issued an interagency statement,9 which states that poorly-designed management compensation policies can create perverse incentives that can ultimately jeopardize the health of the banking organization. The statement emphasizes that banking organizations are expected to regularly review their management compensation policies to ensure they are consistent with the long-run objectives of the organization and sound lending and risk management practices. FB had failed before the interagency statement was issued.
We consider incentive compensation plans without sufficient controls to be a significant concern, which we will address in our summary reports covering multiple bank failures.
Regulatory Supervision Related to Management
According to the Examination Manual, the quality of management is probably the single most important element in the successful operation of a bank. The BOD is responsible for formulating sound policies and objectives for the bank, effective supervision of its affairs, and promotion of its welfare, while the primary responsibility of senior
management is implementing the BODís policies and objectives in the bankís day-to-day operations. Also according to the manual, the capability and performance of management and the BOD is rated based upon, but not limited to, an assessment of compliance with laws and regulations.
Need for Increased Supervisory Monitoring. Based on the information brought forth during the application process about FBís president/CEO, in the early stages of FBís existence, both the OFR and FDIC concluded that FB needed to be monitored closely. In its pre-opening examination conducted May 9, 2005, the OFR concluded that FBís president/CEO had been known to rapidly grow banks in the past by paying above-market rates on deposits and pricing loans below peer banks and that FB should be monitored by quarterly visitations. In October 2005, a DSC official decided during October 2005 against special monitoring of FB and stated that no additional monitoring of FB appeared necessary at that time and that consideration of supervision other than a standard examination program would be based on the October 2005 visitation results. In a work paper for the FDIC May 2006 examination, the examiner recommended that increased supervisory monitoring and visitations more frequent than the standard examinations might be appropriate to assess credit underwriting and administration and reporting trends. The OFR and FDIC, however, did not conduct quarterly visitations but the FDIC conducted visitations in October 2005, March 2007, and October 2008. DSCís relationship manager contacted FB in August 2006 and in June, November, and December 2007 and developed supervisory plans for the bank.
Concern for Asset and Funding Growth. The ROEs by the OFR and FDIC expressed concern regarding FBís rapid growth. The October 2005 OFR examination concluded that FBís growth plans, with aggressive branching, were ambitious and expressed concern about FBís accelerated growth and plans for continued growth. The OFR required FB to develop a Bank Growth Resolution, which outlined FBís growth target for the following 2-Ĺ years. Based on that plan, FB expected total assets to reach $200 million, $300 million, and $400 million for 2006, 2007, and 2008, respectively. These amounts were significantly higher than the bankís original projections.
On February 10, 2006, the FDIC informed FB that although the bankís revised business plan did not present material departures from activities presented in the initial business plan (included in the deposit insurance application), the plan did present significantly higher asset and funding growth and accelerated expansion plans not presented with the application. DSC officials also stated in ROEs that the asset and funding growth would require two significant future capital injections to maintain the 8 percent Tier 1 Leverage Capital. Further, the FDIC informed FB of the following:
As indicated above, although the FDIC established the expectation that FB would have an appropriate level of personnel to support its growth and expansion plans, at the FDICís examination conducted in May 2006, examiners determined that significant weaknesses related to inadequate loan underwriting might have been indicative of insufficient staffing levels to fully support the level of growth experienced during the first year of FBís operations. The March 2007 examination concluded that sufficient staff was in place. However, at the March 2008 examination, examiners concluded that in order to stay abreast of deterioration in FBís loan portfolio, bank management should determine whether additional staff might be necessary. Regardless of examiner concerns about FBís branching activities, FB continued to expand its operations, opening one branch office in July 2006 and three branch offices in January 2007.
The FDICís 2005 Visitation and 2006 Examination Results. The FDICís 2005 visitation focused on managementís ability to manage all risks arising from its proposed high growth plan. The visitation noted concerns with the bankís ability to control growth, stating that the bankís rapid loan growth had contributed to a pattern of weaknesses in underwriting documentation and loan structure. The FDICís May 2006 examination identified significant issues regarding FBís management; emphasis on bank and loan portfolio growth; inadequate attention to loan underwriting and credit administration; increasing risk to the bank; and numerous apparent violations of laws and regulations. The FDICís May 2006 examination was further evidence that FBís BOD and management, including the bankís president/CEO, had continued the types of management practices reported in the FDICís ROI that presented risk to FB. Under the president/CEOís dominance, the BOD and bank management had failed to establish appropriate risk management practices, procedures, controls, or loan underwriting to adequately address the risks associated with FBís rapid growth experienced since its opening on May 17, 2005. The FDICís May 2006 examination concluded that the bankís rapid growth, in the absence of sound underwriting and credit administration practices presented undue risk to the institution and recommended increased supervision; however, the FDIC did not take supervisory action to address those deficiencies and exposure to the bank.
DSC officials discussed the May 2006 FDIC examination results and the management and earnings components that received a 3 rating. DSC officials stated that FBís management was rated 3 and was considered to be less than satisfactory largely because of weaknesses in loan underwriting and administration. According to DSC, concerns regarding FBís deficiencies were mitigated by the corrective action promised by FBís BOD and management. Examiners for the May 2006 examination did not recommend an enforcement action. DSCís
regional and field office officials considered taking informal action after the May 2006 examination and concluded that such action was not necessary because the 2006 examination was the first full-scope FDIC examination, which had been completed prior to visible deterioration in FBís local ADC market. FDIC officials concluded that FB managementís efforts to address issues identified during the May 2006 examination and bank managementís promise to take corrective actions were considered a good-faith effort by FB to correct noted deficiencies. Despite being the FDICís first full-scope examination, the May 2006 examination results showed a continued pattern of inadequate risk management controls and increased risk to the bank.
In September 2006, FB submitted two branch applications and provided assurances that improvements were being made to support future growth and that examination weaknesses were being corrected as the bases for the applications. Although improvements in earnings had been noted in March and June 2006, the high cost of funds from FBís reliance on CDs and time deposits negatively impacted the bankís net interest margin. Abundant capital obtained through stock issuances supported the growth reflected in FBís revised financials, and the FDIC approved the branch applications.
DSCís concerns regarding FBís expansion and risk management control weaknesses and FBís promises to take corrective action did not result in FB taking timely and effective action to strengthen loan underwriting and credit administration deficiencies, including establishing appropriate practices, procedures, and controls to adequately address risks, avoid further deterioration in asset quality, and ensure compliance with laws and regulations.
Supervisory and Enforcement Actions. The OFRís March 2007 examination retained the 3 rating for management and earnings due to OFRís conclusion that management had done little, if anything, to improve the underwriting deficiencies identified at the FDICís May 2006 examination and the bankís unsatisfactory earnings. In addition, the OFR downgraded FBís composite rating to 3 because of the bankís excessive CRE exposure, lax credit administration procedures, continuing operating losses, and poor risk management practices.
The FDIC conducted a visitation concurrently with the OFRís March 2007 examination, expanding the scope of the visitation significantly in light of the deteriorating condition of the bank, and joined the OFR in issuing the MOUó14 months after the FDICís May 2006 examination. The MOU required FB to develop and submit a revised business plan and budget for 2007, 2008, and 2009 to include FBís expectations for asset growth, plans for improving earnings, projected times to meet profitability, and assumptions used for the financial projections. In addition, the MOU required FB to notify the OFR and FDIC when the annualized rate of asset growth exceeded 20 percent. This requirement was also included in the OFRís conditions for approval of FBís state charter. FB submitted progress reports in response to the MOU, indicating corrective actions that bank management was taking or planned to take for the loan underwriting and administration deficiencies. However repeat and additional deficiencies in the bankís loan documentation and administration were reported in the March 2008 ROE.
The FDICís March 2008 ROE concluded that shortly after FB opened for business, the BOD changed the approved business plan from a conservative strategy to an aggressive one, pursuing rapid asset growth and branch development. FBís BOD and management remained committed to its aggressive growth strategy during a slowdown in the local economy, allowing significant unrecognized credit concentrations to develop, and planned to fund the growth with time deposits. The FDIC approved the following branch applications for FB (see Table 3).Table 3: FBís Branch Application History
* Limited-service drive-through branch.
In the interim between FBís submitted applications for branch offices and the FDICís approval of the applications, examiners expressed significant concerns regarding FBís growth and management. For example, the ROEs for the OFRís 2005 examination and the FDICís May 2006 examination indicated:
The March 2008 ROE concluded that (1) FBís growth strategy might have been the single most important risk management deficiency evident in the bank, as it clearly resulted in a high level of problem assets and overall deterioration in the bankís financial condition; (2) net losses that exceeded the bankís projections primarily because of the increased ALLL associated with the declining asset quality and increased expenses related to foreclosures; and (3) noncompliance with the FDICís Final Order for Deposit Insurance, which required FB to provide notification to the regulatory agencies within 60 days when the bank deviated from the approved plan and budget. FB did not provide the required notification related to total asset growth levels, loan growth, and projected net income.
As a result of the March 2008 examination and FBís continued deterioration, in September 2008, the FDIC and OFR jointly issued a C&D that included provisions related to the bankís capital, management, concentrations,
asset quality, ALLL, apparent violations of laws and regulations, loan policy, budget, liquidity, brokered deposits, and internal audit.
At the October 2008 visitation, the FDIC found that FBís efforts to comply with both the MOU and C&D were not effective. FB had failed to maintain an adequate ALLL, and due to the required provisions for the ALLL, the bankís Tier 1 Capital ratio would be reduced to 2 percent. The bankís operating losses continued, averaging $450,000 per month, and without additional capital, the future viability of FB was highly doubtful.
The FDIC also concluded that permitting the bank to continue to operate in this critically undercapitalized position significantly increased the risk to the DIF.
The FDIC rated FBís asset quality a 2 at the 2006 examination, indicating satisfactory asset quality and credit administration practices and, according to DSCís Examination Manual, the level and severity of classifications and other weaknesses warranted limited supervisory attention. The OFR 2007 examination and FDIC 2008 examination downgraded FBís asset quality to 3 and 5, respectively. The 3 rating indicated that the bankís level and severity of classified assets, other weaknesses, and risks required an elevated level of supervisory concern. In addition, there was a general need to improve credit administration and risk management practices. The March 2008 FDIC examination concluded that FBís asset quality and credit administration practices were critically deficient and presented an imminent threat to the institutionís viability.
Indications of FBís asset quality deterioration began in 2006 and continued in 2007 and 2008. In particular, asset classifications significantly increased, from $850,000 in 2006 to $61 million in 2008. At the May 2006 examination, adversely classified assets represented only 2.70 percent of capital, and by March 2008, adversely classified assets totaled more than 200 percent of capital. Increases in the bankís ALLL were required at the March 2007 and March 2008 examinations (see Table 4, which follows).
Table 4: FBís Asset Classifications and ALLL
Examiner Concerns and Recommendations Regarding Asset Quality
Examiner concerns regarding FBís asset quality related to its concentration in high-risk CRE/ADC loans, the extensive use of interest reserve loans without appropriate guidance and risk consideration; an inadequate ALLL methodology and underfunded ALLL; and inadequate loan underwriting and credit administration (see Table 5, which follows, for examples).Table 5: Examples of Examiner Comments and Recommendations Regarding FBís Asset Quality
* The FDIC conducted visitations concurrently with the OFRís October 2005 and March 2007 examinations.
Concentration in CRE and ADC Loans
FB focused and concentrated its loan portfolio in CRE/ADC loans, which increased its level of risk, and failed to ensure that adequate risk management controls were developed and implemented. A significant portion of the CRE/ADC loan portfolio included high-risk terms, such as high loan-to-value ratios, collateral dependency, an interest-only provision with balloon payments, and interest reserves used to capitalize interest expense. FBís concentration in CRE loans at the OFRís October 2005 examination comprised about 83 percent of the loan portfolio. The ROEs and examination work papers documented significant and rapid increases in CRE-related exposure, with significant risk management deficiencies. In addition, FBís exposure in CRE/ADC lending always exceeded its peer group10average (see Table 6, which follows).
Table 6: FBís CRE/ADC Concentration Exposure Compared to Peer*
* Ratios for the level of exposure are a percentage of total capital.
On December 12, 2006, the federal banking agencies issued joint guidance on CRE lending entitled, Guidance on Concentrations in Commercial Real Estate Lending, Sound Risk Management Practices. The guidance was issued after the economic downturn in FBís local market began but acknowledged that a concentration in CRE loans, coupled with weak loan underwriting and depressed CRE markets, has contributed to significant loan losses.11 Examiners recommended several actions to mitigate the bankís CRE risk, but FBís management failed to implement sound risk management practices to adequately address those recommendations, and asset quality continued to decline as FBís management continued with its aggressive growth strategy.
Further, beginning with the March 2007 examination, and continuing through the March 2008 examination and October 2008 visitation, examiners identified a high level of adverse classifications, with significant downgrades of classified loans, and significant increases in the ALLL. As asset quality declined and appropriate provisions were made for impaired loans, FBís earnings and capital were eroded, and liquidity was negatively impacted.
We consider loan concentrations without adequate risk management controls to be a significant concern, which we will address in our summary reports covering multiple bank failures.
Interest Reserves. FB did not have appropriate controls related to the use and reporting of interest reserves. Additionally, FB did not maintain complete records on the number of loans funded with interest reserves, including those that had been funded multiple times, or the total amount of interest reserves. FBís April 2005 loan policy did not contain specific guidance on the use of interest reserves; however, the policy did state that loan officers were not authorized to extend credit for the payment of interest on existing loans at the bank or renew loans without the full collection of interest due. Although interest reserves can be appropriately used for construction lending, FB used the reserves extensively and inappropriately and without adequate guidance, justification, or tracking and monitoring as indicated in Table 7, which follows. The use of interest reserves helped to mask the deterioration of the bankís loan portfolio, resulting in an underfunded ALLL and overstated capital and earnings. Examiners
reported concerns with the bankís use of interest reserves in many of the examinations and visitations (see Table 7 for examples).
Table 7: Examiner Comments Regarding Interest Reserves
The lack of specific tracking and/or reporting to the BOD and lack of a requirement for such reporting by the BOD on the extent of the bankís use of interest reserves and associated risk represented a significant breakdown in the bankís risk management controls.
We consider inadequate controls over the use and reporting of interest reserves to be a significant concern, which we will address in our summary reports covering multiple bank failures.
Allowance for Loan and Lease Losses. FBís methodology for determining the ALLL did not comply with interagency policy. According to the Interagency Policy Statement on the Allowance for Loan and Lease Losses (FIL-105-2006), dated December 13, 2006, each institution must analyze the collectibility of its loans and maintain an ALLL at a level that is appropriate and determined to be in accordance with Generally Accepted Accounting Principles (GAAP).12 An appropriate ALLL covers estimated loan losses on individually evaluated loans that are determined to be impaired as well as estimated loan losses inherent in the remainder of the loan and lease portfolio. In addition, examiners assessed and made recommendations related to FBís ALLL methodology and the adequacy of its funding.
May 2006. The examiners concluded that FBís ALLL methodology was generally adequate and recommended that FB expand the policy guidelines for estimating an appropriate ALLL.
March 2007. Adversely classified items totaled $11.7 million, representing 36.53 percent of Tier 1 Capital and ALLLó$8 million represented adversely classified loans that were not downgraded from FBís internal watch list until immediately before the start of the examination. The examiners recommended an increase of $875,000 to the ALLL.
March 2008. The examiners cited a contravention to the interagency policy due to FBís failure to maintain the ALLL at an adequate level. The examiners recommended that (1) FB establish an effective loan review/credit grading system and controls to identify, monitor, and address asset quality problems and (2) increase the ALLL by $7 million.
October 2008. The examiners concluded that the ALLL needed to be increased by $812,000.
As FBís assets deteriorated and ALLL was increased, earnings and capital were significantly impacted. FBís net losses significantly increased each year (see Table 8).Table 8: FBís Net Income or Loss (Dollars in Thousands)
We consider an inadequate methodology for determining the ALLL to be a significant concern, which we will address in our summary reports covering multiple bank failures.
Regulatory Supervision Related to Asset Quality
FBís management issues, de novo status, significant loan portfolio growth from 2005 through 2006, and significant loan administration deficiencies identified at the May 2006 examination should have warranted greater supervisory concern. As reported in DSCís 2004 De novo Bank Study,13 de novo institutions frequently exhibit factors that present significant risk to de novo banks, including, but not limited to:
Those risk factors for FB were manifested as follows in Table 9.Table 9: Risk Factors Exhibited at FB
The FDICís pre-examination planning memorandum (PEP) for the May 2006 examination noted several areas of concern including: the bankís growth, revisions to initial business plans, and the importance of ensuring that management and the BOD had provided appropriate guidance and oversight for the lending function and that underwriting and credit administration practices were sound. The PEP also indicated the FDICís increased concern with the bankís expansion efforts and stated that the FDIC would review the bankís future expansion efforts and changes in business activities on a case-by-case basis. Further, the PEP stated that particular attention would be given to the loan review function, including underwriting and credit administration.
At the May 2006 FDIC examination, examiners assessed the condition of the bankís loan portfolio and, ultimately, concluded in the ROE that asset quality and credit administration practices were satisfactory; however, loan portfolio deterioration had occurred since the prior examination. Loans adversely classified by examiners totaled $850,000, which represented only 2.70 percent of Tier 1 Leverage Capital. Nevertheless, examiners noted that any level of adverse classifications during the first year of operation normally reflects negatively on asset quality and on management as compared to other de novo institutions. However, other examiner comments in the May 2006 ROE and examination work papers seemed to conflict regarding the overall assessment of asset quality, especially related to the underwriting and credit administration. Specifically, the examiner:
The examinerís overall assessment of FBís asset quality at the May 2006 examination focused more on the condition of the bankís asset quality and amount of adversely classified loans rather than the risk presented by the BOD and managementís rapid growth, plans for continued growth, and absence of sound underwriting and credit administration practices, which the examiner concluded presented undue risk to the bank. The assessment did not give greater weight to the systemic nature of the significant deficiencies in underwriting and credit administration or a qualitative consideration of the bankís elevated CRE risk exposure.
According to the Examination Manual, the asset quality rating reflects the quantity of existing and potential credit risk associated with the loan and investment portfolios and other assets. The ability of management to identify, measure, monitor, and control credit risk and the evaluation of the adequacy of the ALLL are also reflected in the asset quality rating. The Examination Manual provides guidance on which rating is appropriate based on issues identified by examiners. For example, the Examination Manual states that a rating of 3 is assigned for asset quality when:
As stated previously, DSC considered whether to take informal action after the May 2006 examination and determined such action was not necessary. Given the bankís rapid growth strategy and plans for continued growth, significant underwriting and credit administration deficiencies, and the examinerís conclusion that the bankís growth absent sound underwriting and credit administration practices presented undue risk to the bank, additional supervisory action as a result of the 2006 examination was warranted. The underlying problems that contributed to the failure of FB and material loss to the DIF were identified during the 2006 examination and, in retrospect, greater concern during this examination regarding the severity of the underwriting and credit administration deficiencies could have led to elevated supervisory attention and earlier supervisory action.
After the OFRís March 2007 examination and concurrent FDIC visitation identified continued and more severe deficiencies in FBís loan underwriting and credit administration, the FDIC and OFR implemented a supervisory strategy that included a progression of actions to address FBís deficiencies. As a result of that examination:
FBís efforts to comply with the MOU and C&D proved unsuccessful, and the bank was closed on October 31, 2008.
Examinations in 2006 and 2007 resulted in a 2 rating for liquidity. At the last full-scope examination in March 2008, the rating was downgraded to a 4, indicating that FBís liquidity levels or funds management practices were deficient or inadequate and that the bank may not have been able to obtain sufficient funds, on reasonable terms, to meet liquidity needs.
A bankís net non-core dependence ratio indicates the degree to which the bank is relying on non-core/volatile liabilities to fund long-term earning assets. Generally, a lower ratio results in less risk exposure for the bank, and higher ratios reflect a reliance on funding sources that may not be available in times of financial stress or adverse changes in market conditions. FB had various sources of funding, including established credit lines, federal funds, FHLB advances, brokered deposits, and large time deposits. Although FBís net non-core dependence ratio as of March 31, 2006 was -6.85, indicating no net reliance on non-core funding, the bank became increasingly more reliant on high-cost sources, such as brokered deposits and large time deposits, to support its asset growth (see Table 10, which follows). Further, the bankís access to funding sources became restricted as its financial condition deteriorated. The increased interest expense associated with these funding sources reduced FBís earnings.
Table 10: FBís Non-Core Funding Sources
a Time deposits of $100,000 or more may include brokered deposits.
b FB did not rely on this source to fund the bankís rapid asset growth during 2005 through 2007.
Ultimately, the bankís liquidity position became inadequate as a result of the declining financial condition and access to secondary sources of funds, including FHLB advances and credit facilities. In addition, FB had $22 million in unsecured lines of credit, which were contingent on the bank maintaining a satisfactory financial condition.
Examiner Concerns and Recommendations Regarding Liquidity
From October 2005 to March 2007, examinations consistently determined that the bankís overall liquidity risk management and funding positions were strong or adequate. Accordingly, examiners did not make recommendations related to the bankís liquidity position or funds management. Table 11, which follows, includes examples of examiner comments and recommendations on liquidity.Table 11: Examples of Examiner Comments and Recommendations Regarding Liquidity
* The FDIC conducted visitations concurrently with the OFR examinations.
The May 2006 examination concluded that FB was maintaining adequate liquidity sources and at that time, FB had three backup correspondence lines, $26 million in federal funds sold, which were primarily associated with the bankís recent stock offering, and $1.5 million available from other sources. Examiners reported that the bankís overall cost of funds was 65 basis points higher than its peer group. Assets grew 140 percent during 2006. As of December 31, 2006, the non-core fund dependence ratio was 28 percent compared to 15 percent for FBís peer group.
The March 2007 examination and visitation reported that (1) the bank had not generated expected levels of demand (core) deposits, even though the bank opened three branch offices in January 2007 and (2) FB still relied on high-cost non-core funding sources. The March 2007 visitation determined that FBís reliance on time deposits to augment deposit growth was increasing. Combined regular and large time deposits represented over 50 percent of average assets at the end of 2006, compared to 42 percent at the end of 2005. FBís cost of deposits was significantly higher than its peer groupóby 55 basis points.
In March 2008, about 7 months before the bank failed, examiners concluded that the bankís current and projected liquidity position was inadequate, considering the declining financial condition of the bank, which prompted the FHLB and a national bank to withdraw previously extended credit facilities.
When the bankís financial condition began to deteriorate, its access to high-cost funding sources that were dependent on the bank maintaining an acceptable financial condition became reduced; then restricted; and finally, prohibited. For example, although FBís initial application stated that the bank did not plan to solicit brokered
deposits, FB started using brokered deposits extensively to fund its aggressive asset growth in the last quarter of 2006óhaving over $47 million in brokered deposits reported in its UBPR for March 2008ówith a gradual decline due to restrictions placed on the bank when it fell below the well capitalized category for PCA purposes. The March 2008 examination concluded that bank management did not have sufficient access to emergency funds on reasonable terms to meet material deposit withdrawals.
Lack of a Comprehensive CLP. FB did not implement sound liquidity risk management controls that included a comprehensive CLP. As a result, when FBís asset quality severely deteriorated, the bankís liquidity position was negatively impacted.
According to the Examination Manual, CLPs should be in force and should include strategies for handling liquidity crises and procedures for addressing cash flow shortfalls in emergency situations. The manual also states that financial institutions should have an adequate CLP in place to manage and monitor liquidity risk, ensure that an appropriate amount of liquid assets is maintained, measure and project funding requirements during various scenarios, and manage access to funding sources.
FB demonstrated warning indicators that should have prompted FB of the need for a comprehensive CLP and increased monitoring of the bankís liquidity position by the bankís BOD and management. For example, FB exhibited indicators such as:
The FDIC issued FIL-59-2003 entitled, Use of the Federal Reserveís Primary Credit Program in Effective Liquidity Management, dated July 23, 2003, which provides interagency guidance on the need for financial institutions to develop CLPs, in addition to other liquidity risk management controls, and informs depository institutions that a contingency plan should be part of the bankís liquidity management program. The manual also states that financial institutions should have an adequate CLP in place to manage and monitor liquidity risk, ensure that an appropriate amount of liquid assets is maintained, measure and project funding requirements during various scenarios, and manage access to funding sources. FBís BOD and management failed to implement adequate controls to effectively monitor the bankís liquidity risk and as FBís asset quality declined, the bankís liquidity position was negatively impacted.
We consider the lack of a comprehensive CLP to be a significant concern, which we will address in our summary reports covering multiple bank failures.
Regulatory Supervision Related to Liquidity
Examiners assessed liquidity at each examination and made recommendations to address the adequacy of the bankís liquidity and risk management practices. However, the bankís policies, lack of development and implementation of a comprehensive CLP, and reliance on non-core/potentially volatile funding sources should have warranted greater supervisory concern. The Examination Manual states that liquidity is rated based upon, but not limited to, examiner assessment of the following:
In addition, the manual states that each institutionís liquidity policy should have a CLP that addresses alternative funding if initial projections of funding sources and uses are incorrect or if a liquidity crisis arises. Although FB had developed a CLP, it was not comprehensive. Examiners did not recommend that the bank develop a more comprehensive CLP to adequately address elements listed in the Examination Manual. FB had not developed controls that could have identified the specific circumstances related, but not limited, to (1) assessing the potential for triggering legal restrictions on the bankís access to brokered deposits under PCA provisions and the effect on the bankís liability structure, and (2) matching potential sources and uses of funds.
The ROEs did not specifically discuss whether FB needed to have an adequate CLP or policy inadequacies prior to the March 2008 examination, which concluded that management needed to proactively arrange for emergency alternatives of funding to avoid a panic reaction from depositors. On April 29, 2008, the FDIC and OFR began to closely monitor FBís liquidity position. In the September 2008 C&D, the FDIC required FB to implement a written plan to address liquidity, contingency funding, and asset liability management. In addition, the C&D restricted FB from increasing the amount of brokered deposits and required a written plan to eliminate the bankís reliance on those deposits.
The Examination Manual states that examiners should not wait for the PCA-based brokered deposits restrictions to be triggered, or the viability of an institution to be in question, before raising relevant safety and soundness issues with regard to the use of volatile funding sources. If examiners determine that the bankís use of these funding sources is not safe and sound, that risks are excessive, or that risks adversely affect the bankís condition,
then appropriate supervisory action should be taken immediately. The manual also describes red flags related to the use of such funding sources. Several red flags should have indicated to examiners that FB needed to ensure that the risks associated with brokered or other rate-sensitive funding sources were managed appropriately before the restrictions on the use of brokered deposits were implemented based on the PCA provisions. The red flags at FB included:
Subsequent to FBís failure, DSC issued additional guidance related to liquidity risk and CLPs. The FDICís Liquidity Risk Management guidance, dated August 26, 2008, (1) urges financial institutions to establish a formal CLP that establishes quantitative liquidity risk guidelines; (2) states that CLPs should identify the institutionís liquidity risk profile and the types of stress events that may be faced including, but not limited to, a deterioration in asset quality, becoming less than well capitalized, loss of access to market funding sources, and the impact of negative press coverage; and (3) reiterates several of the elements that FBís CLP did not include.
IMPLEMENTATION OF PCA
The purpose of PCA is to resolve problems of insured depository institutions at the least possible long-term cost to the DIF. PCA establishes a system of restrictions and mandatory and discretionary supervisory actions that are to be triggered depending on an institutionís capital levels. Part 325 of the FDICís Rules and Regulations implements PCA requirements by establishing a framework for taking prompt corrective action against insured nonmember banks that are not adequately capitalized.
The bankís 2004 application for deposit insurance included projected capital of $7.5 million. FB raised substantial capital before the bank closed in October 2008 and, as of June 2008, FB had raised over $35.9 million. However, as indicated in Table 12, which follows, the bankís capital ratios lagged behind its peer group.
Table 12: Comparison of FBís Capital Ratios to Its Peer Group
DSC attributed FBís lagging capital ratios on the need for FB to provide substantial increases to the ALLL due to loan losses identified by examiners at the OFR March 2007 examination. In addition, DSC officials stated that FBís BOD seemed to believe that the president/CEO would address regulatory matters and provide additional investor capital infusions to rectify the bankís problems. Further, DSC stated that the FDIC was initially overly-reliant on the capital infusions that FB made to address concerns regarding fast growth, weak underwriting, and asset quality problems.
Although the FDIC did not issue a PCA Directive to FB, other actions taken by the FDIC addressed PCA restrictions. The ARO sent PCA notification letters to FB when the bankís capital category fell below well capitalized. FBís capital category for PCA purposes was well capitalized until FBís submission of its amended December 31, 2007 Call Report, at which time, the bank was reported as adequately capitalized. FB incurred significant provisions for loan losses in the first quarter 2008, which caused the bank to fall to undercapitalized. The FDIC forwarded appropriate PCA notifications to FB and required FB to submit a CRP. For example, on May 23, 2008, the FDIC notified FB of mandatory restrictions applicable to undercapitalized banks, in compliance with section 38 of the FDI Act and the FDICís implementing regulation, Part 325, subpart B, including the continued prohibition against the use of brokered deposits. In accordance with the notification letters FB was required to, among other things, submit a CRP and restrict its use of brokered deposits.14 In addition, on August 21, 2008, the FDIC notified FB that the bank was significantly undercapitalized for PCA purposes. Accordingly, the bank was subject to additional provisions of Section 38 that restrict compensation paid to senior executive officers of the institution. Section 38 also requires the appropriate federal banking agency to take one or more of the following actions when an institution becomes significantly undercapitalized:
FB provided the FDIC information that summarized FBís planned actions to recapitalize the bank with $15 to $20 million or find a merger partner, improve management, resolve and reduce nonperforming assets, strengthen loan underwriting and credit policies, reduce expenses, rationalize the branch network, and increase core deposits. Additionally, the CRP indicated that the bank would not accept, renew, or roll over brokered deposits. The FDIC determined the CRP to be unacceptable and on August 15, 2008, the ARO notified FB that the submitted information was incomplete and requested additional information, including details regarding the existing agreement with the private equity company that had committed to invest $5 million. The FDIC also requested a status report on the effort to attract other capital investors to complete the projected $20 million offering. FB forwarded a revised CRP to the ARO on September 5, 2008. In September 2008, the FDIC issued a C&D requiring the bank to take various actions, including increasing capital and improving management and asset quality.
PCAís focus is on capital, which can be a lagging indicator of an institutionís financial health. In addition, the use of PCA Directives depends on the accuracy of capital ratios in a financial institutionís Call Reports. DSC concluded that the deterioration in FBís asset quality, poor outlook for earning performance, weak liquidity position and asset liability composition, and less than satisfactory supervision by the BOD required a significant capital injection, without which the viability of the bank appeared threatened.
Ultimately, FBís efforts to comply with the MOU and C&D, develop an adequate CRP, and recapitalize the bank proved unsuccessful. Further, by the time FBís capital level fell below the required threshold to implement PCA, the bankís condition had deteriorated to the point at which the institution could not raise the needed capital, estimated to be between $15 to $20 million, through its BOD or find other investors to assist in capitalizing the bank. Accordingly, on October 31, 2008, the OFR closed the bank and named the FDIC as Receiver.
On May 4, 2009, the Director, DSC, provided a written response to the draft report. DSCís response is provided in its entirety as Appendix 3 of this report. In its response, DSC stated that the rapid and pronounced decline in real estate values within FBís local market area was an important contributing factor to FBís ultimate failure and a material loss to the DIF. DSC agreed with the OIGís assessment that FB failed primarily due to managementís aggressive pursuit of asset growth concentrated in high-risk CRE loans, including ADC loans, with inadequate loan underwriting and other loan portfolio and risk management controls. Further, DSC concluded that additional action directed at FBís management performance, lending practices, and high growth was needed to better control and limit the bankís risks. DSC stated that it continues to monitor risks to the DIF and proactively adjust its supervisory programs in light of the changing economic landscape.
OBJECTIVES, SCOPE, AND METHODOLOGY
Internal Control, Reliance on Computer-processed Information, Performance Measurement, and Compliance With Laws and Regulations
Due to the limited nature of the audit objectives, we did not assess DSCís overall internal control or management control structure. We performed a limited review of FBís management controls pertaining to its operations as discussed in the finding section of this report. For purposes of the audit, we did not rely on computer-processed data to support our significant findings or conclusions. Our review centered on interviews, ROEs, and correspondence and other evidence to support our audit.
The Government Performance and Results Act of 1993 (the Results Act) directs Executive Branch agencies to develop a customer-focused strategic plan, align agency programs and activities with concrete missions and goals, and prepare and report on annual performance plans. For this material loss review, we did not assess the strengths and weaknesses of DSCís annual performance plan in meeting the requirements of the Results Act because such an assessment was not part of the audit objectives. DSCís compliance with the Results Act is reviewed in OIG program audits of DSC operations.
Regarding compliance with laws and regulations, we performed tests to determine whether the FDIC had complied with the provisions of PCA and limited tests to determine compliance with certain aspects of the FDI Act. The results of our tests were discussed where appropriate in the report. Additionally, we assessed the risk of fraud and abuse related to our objectives in the course of evaluating audit evidence.
GLOSSARY OF TERMS
|Adversely Classified Assets||
Assets subject to criticism and/or comment in an ROE. Adversely classified assets are allocated on the basis of risk (lowest to highest) to three categories:
|Allowance for Loan and Lease Losses (ALLL)||Federally insured depository institutions must maintain an ALLL level that is adequate to absorb the estimated loan losses associated with the loan and lease portfolio (including all binding commitments to lend). To the extent not provided for in a separate liability account, the ALLL should also be sufficient to absorb estimated loan losses associated with off-balance sheet loan instruments such as standby letters of loan.|
|Cease and Desist Order (C&D)||A formal enforcement action issued by a regulator to a bank or affiliated party to stop an unsafe or unsound practice or violation. A C&D may be terminated when the bankís condition has significantly improved and the action is no longer needed or the bank has materially complied with its terms.|
|Concentration||A concentration is a significantly large volume of economically related assets that an institution has advanced or committed to a certain industry, person, entity, or affiliated group. These assets may, in the aggregate, present a substantial risk to the safety and soundness of the institution.|
|Interest Reserves||The use of interest reserves to fund the initial construction and/or development of real estate is generally an acceptable practice, subject to prudent underwriting standards and the timely completion of construction/development projects in accordance with the original construction loan agreement. Conversely, the use of interest reserves to service loans for any other purpose is often inappropriate and should be closely reviewed.|
|Prompt Corrective Action (PCA)||
The purpose of PCA is to resolve the problems of insured depository
institutions at the least possible long-term cost to the DIF. Part 325,
subpart B, of the FDIC Rules and Regulations, 12 Code of Federal
Regulations, section 325.101, et. seq., implements section 38, Prompt
Corrective Action, of the FDI Act, 12 United States Code section 1831o,
by establishing a framework for taking prompt supervisory actions against
insured nonmember banks that are less than adequately capitalized. The
following terms are used to describe capital adequacy: (1) Well
Capitalized, (2) Adequately Capitalized, (3) Undercapitalized,
(4) Significantly Undercapitalized, and (5) Critically Undercapitalized.
A PCA Directive is a formal enforcement action seeking corrective action or compliance with the PCA statute with respect to an institution that falls within any of the three categories of undercapitalized institutions.
May 4, 2009
Pursuant to Section 38(k) of the Federal Deposit Insurance Act (FDI Act), the Federal Deposit Insurance Corporationís Office of Inspector General (OIG) conducted a material loss review of Freedom Bank (Freedom), Bradenton, Florida, which failed on October 31, 2008. This memorandum represents the response of the Division of Supervision and Consumer Protection (DSC) to the OIGís Draft Report received April 17, 2009.
We agree with the OIGís assessment that Freedom failed primarily due to managementís aggressive pursuit of asset growth concentrated in high risk Commercial Real Estate (CRE) loans, including Acquisition, Development, and Construction (ADC) loans with inadequate loan underwriting and other loan portfolio and risk management controls. In addition, we believe that the rapid and pronounced decline in real estate values within Freedomís local market area was an important contributing factor to Freedomís ultimate failure and a material loss to the Deposit Insurance Fund.
The Draft Report states that the OIG found that the FDIC and the State of Florida, Office of Financial Regulation conducted timely examinations of Freedom, and notes that examiners identified loan administration and underwriting deficiencies at each examination and visitation of Freedom. We note that as a result of these deficiencies, the Management component was rated 3 at Freedomís initial examination in May 2006, and the Management component and the Composite rating were rated 3 at Freedomís second examination in March 2007 when the FDIC and OFR entered into a joint Memorandum of Understanding with Freedomís Directors.
The Draft Report concludes that more timely supervisory action should have been taken as a result of the 2006 examination. DSC has concluded that additional action directed at Freedomís management performance, lending practices, and high growth was needed to better control and limit these risks. DSC continues to monitor risks to the Deposit Insurance Fund and proactively adjust its supervisory programs in light of the changing economic landscape.
Thank you for the opportunity to review and comment on the Draft Audit Report.
ACRONYMS IN THE REPORT
|ADC||Acquisition, Development, and Construction|
|ALLL||Allowance for Loan and Lease Losses|
|ARO||Atlanta Regional Office|
|BOD||Board of Directors|
|C&D||Cease and Desist|
|CAMELS||Capital, Asset Quality, Management, Earnings, Liquidity, and Sensitivity to Market Risk|
|CD||Certificate of Deposit|
|CEO||Chief Executive Officer|
|CLP||Contingency Liquidity Plan|
|CRE||Commercial Real Estate|
|CRP||Capital Restoration Plan|
|DIF||Deposit Insurance Fund|
|DSC||Division of Supervision and Consumer Protection|
|FDI||Federal Deposit Insurance|
|FHLB||Federal Home Loan Bank|
|FIL||Financial Institution Letter|
|GAAP||Generally Accepted Accounting Principles|
|MOU||Memorandum of Understanding|
|OFR||Office of Financial Regulation|
|OIG||Office of Inspector General|
|PCA||Prompt Corrective Action|
|ROE||Report of Examination|
|ROI||Report of Investigation|
|UBPR||Uniform Bank Performance Report|
|UFIRS||Uniform Financial Institution Rating System|