Banking Law in the United States - 4th Edition

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The all-new revised 4th edition of Banking Law in the United States positions the text to address three challenges — the need to maintain an historic record and statement of existing law, the need to document changes made to existing law and to report the deployment, implementation and interpretation of new laws. Just as new laws in 1989, 1990 and 1991 had significant impact on banking, so new laws, adopted in rapid succession in 2008, 2009 and 2010, have altered the legal landscape in which banks and other financial institutions operate. 

The Dodd Frank Wall Street Reform and Consumer Protection Act, adopted in 2010, set the stage not only for new agencies, new regulatory authorities and new market restrictions, but also for extensive interpretive regulation and judicial interpretations implementing such changes. As a result, the all new 4th edition positions Banking Law in the United States to accommodate legal and market changes and whatever secondary, reactive responses occur in the law and the environment in which it operates. This new edition continues to meet the needs of practitioners, courts, legislators and regulators and those interested in better under­standing the breadth and diversity and dynamic nature of banking law in the United States.

VOLUME 1

PART I INTRODUCTION TO BANKING LAW IN THE UNITED STATES

CHAPTER 1 INTRODUCTION
§ 1.01 Banking Law Defined
§ 1.02 Scope of Review
§ 1.03 Format
§ 1.04 Up-to-Date Text
§ 1.05 Developments Since 1988
§ 1.06 Future Banking Regulation

CHAPTER 2 HISTORY AND CONCEPTS OF BANKING REGULATION
§ 2.01 Introduction
§ 2.02 Banking Regulation before the Revolutionary War
§ 2.03 From the Revolution through the First
and Second Banks of the United States
§ 2.04 Free Banking, 1830–1861
§ 2.05 The Civil War and the National Bank Acts
§ 2.06 The Federal Reserve Act
§ 2.07 The 1920s—The McFadden Branch Banking Act
§ 2.08 Crisis and the National Banking Act of 1933 (Glass Steagall Act)
§ 2.09 Other Prewar Legislation
§ 2.10 World War II and the Bank Holding Company Act
§ 2.11 Modern Banking and the Savings and Loan and Mortgage Crises
§ 2.12 Conclusion

PART II THE STRUCTURE OF BANKING AND ITS REGULATION

CHAPTER 3 COMMERCIAL BANKS, BANK HOLDINGCOMPANIES, AND OTHERS
§ 3.01 Introduction
§ 3.02 Commercial Banks
§ 3.03 Bank Holding Companies and Financial Holding Companies
§ 3.04 Savings and Loans, Savings Banks, and Credit Unions
§ 3.05 Nonbank Institutions
§ 3.06 Payments System
§ 3.07 Conclusion

CHAPTER 4 LEGISLATIVE AND REGULATORY ENTITIES IN A DUAL BANKING SYSTEM
§ 4.01 Introduction
§ 4.02 Federal Legislative Entities
§ 4.03 The Dual Banking System and State Legislative Bodies
§ 4.04 Regulatory Bodies—Introduction
§ 4.05 Board of Governors of the Federal Reserve System
§ 4.06 Office of the Comptroller of the Currency
§ 4.07 Federal Deposit Insurance Corporation
§ 4.08 Securities and Exchange Commission
§ 4.09 Other Federal Agencies of Importance
§ 4.10 State Bank Supervisors
§ 4.11 Major Legislation Affecting the Regulatory Framework
§ 4.12 Conclusion

CHAPTER 5 ENFORCEMENT POWERS OF THE REGULATORS
§ 5.01 Introduction
§ 5.02 Cease and Desist Orders
§ 5.03 Removal of Directors and Officers
§ 5.04 Civil Money Penalties
§ 5.05 Conservatorship and Receivership
§ 5.06 Termination of Deposit Insurance
§ 5.07 Capital Directives
§ 5.08 Informal Enforcement Methods
§ 5.09 Civil Lawsuits against Officers and Directors
§ 5.10 Indemnification and Insurance
§ 5.11 Other Enforcement Schemes
§ 5.12 Conclusion
 
CHAPTER 6 BANKING STRUCTURE IN THE MODERN LEGAL FRAMEWORK
§ 6.01 Introduction
§ 6.02 Branching Laws
§ 6.03 Interstate Bank Ownership
§ 6.04 Nonbank Banking
§ 6.05 Conclusion

PART III BANKING LAW IN THE UNITED STATES

CHAPTER 7 CHARTERING BANKS AND FORMING HOLDING COMPANIES
§ 7.01 Introduction
§ 7.02 Chartering Banks—Statutory Requirements
§ 7.03 Discretion of the Comptroller
§ 7.04 Chartering Policy of the Comptroller
§ 7.05 Chartering Procedures
§ 7.06 Federal Reserve Stock and Federal Deposit Insurance
§ 7.07 Status of National Banks as Federal Instrumentalities
§ 7.08 Forming Bank Holding Companies—Statutory Requirements
§ 7.09 Statutory Processing Requirements
§ 7.10 Statutory Factors for Federal Reserve Review
§ 7.11 Procedures for Forming a Bank Holding Company
§ 7.12 Judicial Review
§ 7.13 Conclusion

CHAPTER 8 NATIONAL BANK POWERS
§ 8.01 Introduction
§ 8.02 Enumerated Powers
§ 8.03 Incidental Powers: The Arnold Tours Case
§ 8.04 Incidental Powers—Comptroller Determinations and the Gramm-Leach-Bliley Act
§ 8.05 Insurance Activities
§ 8.06 Real Estate Activities
§ 8.07 Conclusion

CHAPTER 9 NATIONAL BANK LENDING LIMITS
§ 9.01 Introduction
§ 9.02 Aggregation Rules
§ 9.03 Exceptions
§ 9.04 Regulatory Interpretations
§ 9.05 Penalties
§ 9.06 Conclusion

CHAPTER 10 RESTRICTED TRANSACTIONS WITH BANK AFFILIATES AND INSIDERS
§ 10.01 Introduction
§ 10.02 Transactions with Affiliates—Section 23A—Definitions
§ 10.03 Section 23A—Application
§ 10.04 Section 23B
§ 10.05 Transactions with Insiders
§ 10.06 Conclusion

CHAPTER 11 CAPITAL AND RESERVES
§ 11.01 Introduction
§ 11.02 Capital against Assets
§ 11.03 Reserves against Liabilities
§ 11.04 Conclusion

CHAPTER 12 CRIMES AND TORTS
§ 12.01 Introduction
§ 12.02 Federal Crimes Involving Banks
§ 12.03 Tort Liability
§ 12.04 Conclusion

CHAPTER 13 HOLDING COMPANY NONBANKING BUSINESSES
§ 13.01 Introduction
§ 13.02 Explicit Nonbanking Powers—The Bank Holding Company Act, Section 4
§ 13.03 Section 4(c)(8): Nonbanking Powers
§ 13.04 Nonbanking Activities under Regulation Y
§ 13.05 Nonbanking Activities Authorized by Board Order
§ 13.06 Nonbanking Activities Denied
§ 13.07 Gramm-Leach-Bliley Act and Nonbanking Activities
§ 13.08 Major Nonbanking Authorities: Securities, Insurance, Leasing, and Real Estate
§ 13.09 Procedural Elements under Board Rules
§ 13.10 Thrift Institution Acquisitions
§ 13.11 Conclusion

VOLUME 2

CHAPTER 14 BANK AND HOLDING COMPANY SECURITIES ACTIVITIES
§ 14.01 Introduction
§ 14.02 Types of Securities Activities
Domestic Securities Activities
§ 14.03 Legal Framework: The 1933 Banking Act (Glass Steagall Act), the Securities Act of 1933,
and Regulatory Jurisdiction
§ 14.04 Bank Securities Activities for Own Account
§ 14.05 Bank and Bank Holding Company Securities Activities for Customers
§ 14.06 Bank Activities in Underwriting and Dealing
§ 14.07 Bank Holding Company Securities Activities
§ 14.08 Holding Company “Section 20” Securities Subsidiaries
§ 14.09 Gramm-Leach-Bliley Act and Dodd Frank Act on Securities Activities
§ 14.10 Other Securities Issues
International Securities Activities
§ 14.11 Introduction
§ 14.12 Permissible Securities Activities
§ 14.13 Conclusion
Supplement
§ 14.14 Summary of National Bank Securities Activities and Investments

CHAPTER 15 REGULATION OF RETAIL BANKING
§ 15.01 Introduction
§ 15.02 Interest Rates Charged—Usury
§ 15.03 Limits on Interest Paid—Regulation Q
§ 15.04 Consumer Credit Protection Act
§ 15.05 Truth in Lending Act
§ 15.06 Truth in Savings Act
§ 15.07 Consumer Leasing Act
§ 15.08 Equal Credit Opportunity Act
§ 15.09 Fair Credit Reporting Act and Fair and Accurate Credit Transactions Act
§ 15.10 Fair Credit Billing Act
§ 15.11 Fair Debt Collection Practices Act
§ 15.12 Bank Secrecy Act, Right to Financial Privacy Act, and Freedom of Information Act
§ 15.13 Electronic Funds Transfer Act and A.T.M. Fee Reform Act
§ 15.14 Community Reinvestment Act
§ 15.15 Home Mortgage Disclosure Act
§ 15.16 Real Estate Settlement Procedures Act
§ 15.17 Expedited Funds Availability Act
§ 15.18 Home Equity Loan Consumer Protection Act
§ 15.19 Other Federal Statutes
§ 15.20 Conclusion

CHAPTER 16 PRIVACY OF FINANCIAL RECORDS
§ 16.01 Introduction
§ 16.02 Access to Bank Records—Practice Before 1970
§ 16.03 Bank Secrecy Act
§ 16.04 Right to Financial Privacy Act
§ 16.05 Expanded Privacy and Money Laundering Initiatives
§ 16.06 Conclusion

CHAPTER 17 INTERNATIONAL BANKING
§ 17.01 Introduction
Regulation of United States Banks’ International Activities
§ 17.02 Supervision—Domestic and International Agencies
§ 17.03 International Banking Operations and Investments
§ 17.04 Edge Act Corporations and Export Trading Companies
§ 17.05 International Banking Act of 1978 and International Banking Facilities
§ 17.06 International Banking—Lending and the International Lending Supervision Act of 1983
§ 17.07 International Banking—Bankers’ Acceptances
§ 17.08 International Banking—Special Government Restrictions
§ 17.09 International Banking—Lender Remedies
Regulation of Foreign Bank Activities in the United States
§ 17.10 Introduction
§ 17.11 International Banking Act and Regulation of Foreign Banks in the United States
§ 17.12 Foreign Bank Supervision Enhancement Act
§ 17.13 Conclusion

CHAPTER 18 TAXATION OF BANKS
§ 18.01 Introduction
§ 18.02 Federal Taxation of Commercial Banks
§ 18.03 State Taxation of National Banks
§ 18.04 Conclusion

CHAPTER 19 MERGERS, ACQUISITIONS, AND ANTICOMPETITIVE BEHAVIOR
§ 19.01 Introduction
§ 19.02 Bank Holding Company Act and Bank Merger Act
§ 19.03 Change in Bank Control Act
§ 19.04 Antitrust Laws—The Sherman and Clayton Acts
§ 19.05 Application of the Law—Mergers and Anticompetitive Behavior
§ 19.06 Procedures
§ 19.07 Trends in Mergers and Acquisition
§ 19.08 Conclusion

CHAPTER 20 FAILING AND FAILED BANKS
§ 20.01 Introduction
§ 20.02 Detection of Problem Situations
§ 20.03 FDIC Conservatorship and Receivership Authority—The D’Oench Duhme Doctrine
§ 20.04 Methods of Resolving Failed Banks
§ 20.05 Open Bank Assistance
§ 20.06 Restrictions on FDIC Authority
§ 20.07 Other Issues: Interstate Supervisory Acquisitions and Cross-Guarantee Liability
§ 20.08 Supervision and Resolutions of Non-Depository Institution Financial Companies
§ 20.09 Conclusion

PART IV CONCLUSION

CHAPTER 21 DIRECTIONS IN BANKING LAW AND REGULATION
§ 21.01 Marketplace Directions
§ 21.02 Legislative Directions
§ 21.03 Regulatory Directions
§ 21.04 Global Financial Crisis of 2007
§ 21.05 Conclusion

Table of Cases T-1
Index I-1






 

Alfred M. Pollard is General Counsel at the Federal Housing Finance
Agency (FHFA) in Washington, D.C. He formerly worked as Senior
Director for the Financial Services Roundtable, a national trade
association for large financial institutions, and as Senior Vice President
at Security Pacific Corporation and Bank of America. He served on the
staff of two United States Senators and has written frequently on banking
topics. Mr. Pollard received his undergraduate and law degrees from the
University of North Carolina at Chapel Hill and his doctorate in foreign
affairs from the University of Virginia. [No materials herein are related
to work performed at FHFA or based on information related to
institutions regulated by FHFA.]

Joseph P. Daly is a Partner with the banking law firm of Luse
Gorman Pomerenk & Schick, PC, Washington, D.C. Mr. Daly has
written frequently on banking law and bank regulatory issues. He was
formerly an attorney with the Office of the Comptroller of the Currency.
Mr. Daly received his law degree from George Washington University
National Law Center and his Bachelor of Arts degree from the State
University of New York at Stony Brook.

"This is a book that should be on the shelf of every banking lawyer."
- Michael Helfer, Vice Chairman, Citigroup; former General Counsel and Corporate Secretary,

"Banking Law in the United States remains the most accessible "point of entry" resource for the
wide scope of banking law. From chartering banks to closing them and everything in between, this is an invaluable primary resource. This work places practitioners, researchers and financial services personnel within easy reach of legal concepts and court decisions from international to the domestic and from unique banking statutes to criminal rules of general applicability."
- Rick Fischer, Partner, Morrison & Foerster, author of The Law of Financial Privacy

"...Banking Law in the United States maintains the valuable mix of history, current developments and important essays on the future of banking law. Banking and financial laws are placed clearly in context while being fully explored with regulatory and case materials; this remains a feature unique to this work."
- Stuart Stock, Managing Partner, Covington & Burling

"With the increased complexity of financial institutions and enhanced responsibilities and regulatory expectations for banks, bankers and bank directors, those involved with financial institutions must have a solid understanding of basic banking law. Critical information to fill this need may be found in every chapter of Banking Law in the United States, a work that is well structured and easy to use."
- David Baris, Partner, Kennedy, Baris & Lundy and Executive Director, American Association of
Bank Directors