WASHINGTON - In a decision making it harder for banks to challenge enforcement actions, a federal appeals court in New Orleans has rejected three Texas banks' request for relief.
The ruling also affirmed the Office of the Comptroller of the Currency's view that banks cannot avoid loan limits by lending money to separate corporations controlled by the same people.
The U.S. Court of Appeals for the Fifth Circuit said last week that it could not overturn cease-and-desist orders and decisions by the Comptroller's office against First National Bank of Bellaire, Texas National Bank of Baytown, and Mayde Creek Bank of Katy.
The "extremely deferential standard of review by which we are here constrained mandates denial of the petition," the judges wrote in a March 13 decision.
Robert L. Griffin, director of litigation at the Comptroller's office, said the decision means that the court, even if it agrees with a bank's view, won't overturn a regulator's ruling except in extraordinary circumstances. "There hasn't been a decision as clear as this," Mr. Griffin said.
The Fifth Circuit deferred to the Comptroller's authority much as the Supreme Court did in a January decision on annuities, Mr. Griffin said.
"You have almost the same kind of language of the Comptroller's discretion on the supervisory side as you have in Valic (the January decision) on the powers side," Mr. Griffin said.
Banking lawyers, however, were not as impressed. "On its face, the decision appears to be entirely unremarkable," said Michael F. Crotty, deputy general counsel to the American Bankers Association.
"There is a long tradition of deferring on enforcement actions," added Ronald Glancz, a partner at Venable, Baetjer, Howard & Civiletti.
Mr. Griffin said he is particularly pleased that the court accepted the office's position on loan limits. "That is significant," he said.
The Comptroller's office charged the banks in April 1992 with violating their lending limits by extending credit to a score of corporations owned by Jerry J. Moore and Jean Moore, who used the dummy corporations to exceed each bank's lending limit, often having several corporations owning a single strip mall.
The OCC also successfully charged that the banks violated a rule against concentration of credit. The loans represented 350% of First National's capital and approximately 64% of its loan portfolio. Texas National and Mayde Creed committed 70% of their loan portfolios and 290% of their capital.
First National president Craig Wooten declined to comment, other than to say that an appeal was "doubtful."
But, Mr. Glancz said the courts have accepted for several years now that borrowers cannot use sham corporations to evade lending limits.
The Comptroller's office focused its case on 23 loans totalling $24 million originated by First National and in which Texas National and Mayde Creek purchased participations.
