Compliance Overview: Fair Lending

TriState Capital Bank is regulated by a number of different regulatory agencies and is responsible for ensuring that its business complies with federal consumer regulations. These regulations are applicable when TriState conducts business directly with a potential borrower or through a third-party intermediary. Thus, the business conducted with third parties is subject to the requirements of the regulations.

The Equal Credit Opportunity Act (ECOA), also known as Regulation B and the Fair Housing Act form the cornerstone of fair lending. These laws make it illegal to discriminate against a loan applicant or borrower based on certain prohibited bases. Regulation B applies to all creditors, including banks, credit unions, credit card companies and others in the business of extending credit to applicants, either directly or indirectly through a third party. In addition, the Unfair, Deceptive or Abusive Acts or Practices (“UDAAP”) Act makes it unlawful for any provider of consumer financial products or services or a service provider to engage in any unfair, deceptive, or abusive act or practice.

The goal of the ECOA is to promote availability of credit to creditworthy applicants without regard to race, color, religion, national origin, sex, marital status or age; the fact all or part of the applicant’s income derives from a public assistance program; or the fact the applicant has in good faith exercised any right under the Consumer Credit Protection Act.

The primary purpose of the ECOA is to prevent discrimination in the granting of credit by requiring banks and other creditors to make extensions of credit equally available to all creditworthy applicants with fairness, impartiality and without discrimination on a prohibited basis as outlined above.

What is Discrimination?

Discrimination is a credit practice that treats applicants differently on a prohibited basis, regardless of whether it results from a conscious intent to discriminate or whether discrimination is the practical effect.. All customers must be treated consistently and fairly during the credit process. This includes all aspects of the application for credit or an existing extension of credit, including, but not limited to: information requirements; investigation procedures; standards of creditworthiness; terms of credit (pricing, fees, etc.); furnishing of credit information; revocation, alteration, or termination of credit; and collection procedures). Discrimination includes using disparate treatment or discouraging applicants on any prohibited basis.

When Does Regulation B Apply?

Regulation B applies when an applicant initiates the application process for consumer or business credit, including the renewal of credit. An application can be either an oral or written request for the extension of credit. The regulation specifically prohibits a creditor from making an oral or written statement to an applicant(s) or a prospective applicant(s) that would discourage on a prohibited basis a responsible person from making or pursuing an application.

Who Are Considered Applicants/Borrowers?

Applicants/Borrowers are persons who request or have received an extension of credit, and include guarantors, sureties, and endorsers.

What Are Some of the Rules Regarding Collection of Information?

Marital Status: When an applicant applies for individual credit, a creditor may not ask the applicant’s marital status unless (1) the credit transaction is to be secured; (2) the applicant resides in a community property state; or (3) the applicant lists assets to support the debt that are located in a community property state. When a request for credit is for joint credit (made by two or more individuals who will be primarily liable), the bank may ask the applicants’ marital status.

Income: A creditor may inquire whether an applicant’s income is derived in whole or in part from alimony, child support or separate maintenance only if the creditor first discloses to the applicant that the income from these sources need not be revealed unless the applicant wishes to rely on it to establish creditworthiness.

Sex: A creditor is prohibited from inquiring about the sex of an applicant. An applicant may be required to designate a title in an application form, (such as Ms., Mr., Mrs. or Miss) if the form discloses that the title
designation is optional.

Race, color, religion, national origin: A creditor may not inquire about the race, color, religion or national origin of any applicant or any other person in connection with a credit transaction. A creditor may inquire about an applicant’s permanent residence and immigration status.

What are the Rules Regarding Intention to Apply for Joint Credit?

A person’s intent to be a joint applicant must be evidenced at the time of application. Signatures or initials on a credit application affirming applicants’ intent to apply for joint credit may be used to establish intent to apply for joint credit. The method used to establish intent must be distinct from the means used by individuals to affirm the accuracy of information.

Summary

The overarching purpose of the fair lending rules is to avoid discrimination of protected classes who are in the process of applying for credit. To comply, a lender must have reasoned and non-discriminating methods for taking and reviewing credit applications. Understanding the details of Regulation B ensures that we effectively manage our fair lending compliance risk. Regulation B is enforced by the banking regulators, and violations can carry significant regulatory and monetary penalties. One employee’s Regulation B violation can cause penalties to be assessed against the lender, so compliance by loan officers, employees and third parties is imperative.

Effective Date: January 1, 2021
Date of Last Update: July 29, 2021