As bankers anxiously await the anticipated 300 new regulations from Dodd-Frank regulators have continued their assault on banking practices. Bankers have recently been concerned about the details and expected requirements regarding automated overdraft-payment programs that were initially issued last November, with follow-up explanations provided in late March.
The FDIC based the requirement for greater attention and stronger overdraft rules on the reputation, compliance, litigation, and safety and soundness risks associated with account transgressions.
It is hard to link these factors to paying or returning not-sufficient-funds checks or charging fees for extra services, but bankers are aware of the public's concern for the disproportionate impact of overdraft charges on low- and fixed-income customers.
Very few would disagree that fairly priced, convenient and accessible banking services and reasonable bank service fees are appropriate. What bankers have been specifically questioning are overdraft fees based on penalizing customer behavior rather than reimbursed costs and rejected-check payment methodologies based on paying smaller NSF checks first to maximize overdraft fees while returning larger checks.
Under the new guideline the burden of protecting those who misuse the deposit system is placed squarely on the bank as the service provider. This is a continuation of the ongoing Washington process of creating regulations that protect and engineer social behavior. It's hard for banks to apply disproportionate resources in managing the misbehavior of some bank-overdraft customers.
In their guidance, the FDIC limits overdraft fees and discusses the need for personal contact with customers who experience six occasions during a rolling 12-month period where an overdraft fee is charged. In these cases the bank must make a meaningful effort to provide the customer with information and alternatives that are better suited for their short-term credit needs and to avoid additional overdrafts fees. They point to lines of credit, fixed term small-dollar loans or linked savings accounts as possible alternatives to help correct the misuse of accounts.
These credit alternatives assume that most overdraft users are mistake-prone and overdrafts are inadvertent rather than chronic problems resulting from ongoing personal cash-flow shortfalls. This conclusion is far from the common bank experience. Chronic overdraft users can only alter their pattern by spending less or receiving more and by conducting their personal finances within a balanced budget.
What these chronic cash-short customers don't need and shouldn't have is regulations suggesting loans or lines to solve their overdraft problems. Banks recently experienced the cost of marginalized credit granted as part of sub-prime loan problems. Overdrafts are most often indicative of larger problems that are not corrected with high-risk micro loans.
A regulatory philosophy that discourages behavioral pricing or policies that maximize charges is proper, but encouraging credit to correct overdraft issues is wrong. Mandating such policies has little benefit beyond further protecting the marginal customers who chose to misuse their account.
Individuals must be held accountable for managing their individual financial obligations and look to banks for occasional credit support when justified byt the facts, history and situation. New or consolidating credit is necessary at times but typically cannot solve the problems of those who choose to spend more than they receive. New credit should be preserved for those who earn that right and employed by banks with extreme caution
Cynically speaking, will banks soon be required to provide overdraft warning labels on bank statements or 12-step programs to offer greater comfort and protection for chronic overdraft abusers? Will bankers be required to have training in behavioral psychology?
Where will the ongoing flow of micro-managed but socially justified regulations end for banks, and particularly the local community banks? It's hard to imagine the benefits of directives and regulations that encourage community bank presidents and officers to spend time discussing alternative financial solutions with their least productive or responsible customers or processing and ultimately collecting high risk micro loans to solve deeper problems.
Community banks and banks in general are already overregulated. While limited pricing for overdrafts is in order, focusing the regulatory efforts on personal consultation, risky micro loans, and viewing individual overdrafts as a reputation, litigation or safety-and-soundness issue just doesn't make sense. More industry and marketplace goodwill can be created by regulatory actions encouraging community banks to focus on customers who can create economic growth and jobs, and not those who chronically abuse their accounts.
Robert H. Smith, the former chairman and chief executive of Security Pacific Corp., is a founder and director of Commerce National Bank in Newport Beach, Calif.
