Author: Chip Filson

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Corporate Surpluses Top $5.7 billion-$1.5 Billion More to Distribute

In early January the latest AME financial updates were posted on NCUA’s website.  Shareholders of the four solvent corporates are projected to receive total payments from their respective liquidation estates of over $3.185 billion.

Of this total 54% had been distributed as of September 30, 2021.  The remaining $1.470 billion will be sent to shareholders later this year.

Southwest and Members United members will receive a liquidating dividend on top of the return of all their ownership shares.  Only WesCorp members will see no payment.   NCUA expects to have  a deficit on its insured savings liability of $2.1 billion.

That amount appears  to be final actual loss to the NCUSIF for the combined corporate resolution.

Adding these direct shareholder payments to the $2.563 billion TCCUSF net worth when merged   into the NCUSIF (September 2017) brings the total cash surplus to $5.7 billion.   All credit unions were paid two dividends totaling $895.8 million from these merged funds.  The result is that credit unions and the corporate members, will directly receive 72% of the AME’s growing surpluses.  The balance was kept in the NCUSIF.

A $12.9 Billion Total Turnaround

When the five corporates were liquidated in the fall of 2010 the auditor’s estimate of the combined deficit for the TCCUSF was reported by  KMPG as follows:

At the time of liquidation in 2010, the AMEs had an aggregate deficit of approximately $7.2 billion, which represented the difference between the value of the AMEs’ assets and the contractual or settlement amount of the claims and member shares recognized by the NCUA Board as the liquidating agent.

Adding the current $5.7 AME surpluses, the total variance from this initial loss estimate is $12.9 billion.

As recently as the September 30, 2017 final TCCUSF audit, the estimate in the footnotes was that the combined estates would still have a total deficit.

Total Fiduciary Net Assets/(Liabilities) $ (110,863) millions, at September 30,2017

The Schedule of Fiduciary Net Assets reflects the expected recovery value of the AMEs’ assets, including the Legacy Assets collateralizing the NGNs issued through the NGN Trusts, and the settlement value of valid claims against the AMEs outstanding at September 30, 2017

93% of Legal Recoveries Pay NCUA’s Liquidation Expenses

All of this $12.9 billion recovery is from the interest payments and principal pay downs on the legacy assets.  The longer the assets were held, the more valuable they became.  The initial estimates of the credit losses over the life of these securities have proved to be in error by over $12.9  billion.

Some assert that NCUA’s net legal recoveries of $3.85 billion were a critical part of this turnaround.  That is not the case. The net recoveries were important for another reason however.

NCUA’s liquidation expenses, not including payments to the lawyers, total $3.569 billion.  So 93% of  the net legal settlements went directly for NCUA’s operating expenses managing the AME’s and NGN trusts.

Moreover, NCUA’s costs were much greater than just those directly recorded.  In  one of its first actions in 2010 after seizing the five corporates, NCUA sold approximately $10 billion of sound performing corporate assets at a loss from book value of over $1.0 billion.   This  added an actual loss on these fully current securities whose value was temporarily impacted by “market dislocations.”

There were also additional charges paid from the AME’s assets including NCUA’s 35 basis point guarantee fee on the outstanding NGN monthly balances as reported in the audits:

The guarantee fee amount due to the NCUA, at each monthly payment date, is equal to 35 basis points per year on the outstanding NGN balance prior to the distribution of principal on the payment date,

Learning the Lessons of a Crisis

As credit unions receive these final payments, it will be tempting to close the books, move on and let bygones be gone.  The crisis was over 12 years ago.  But it is still referenced today by NCUA as a reason for challenging the adequacy of the NCUSIF’s design, setting the NOL, or even when imposing the new CCULR/RBC capital requirements.

Leaving these events open to these “urban myths” kinds of recall would be a critical error.  There is much to learn when both auditor and NCUA’s initial total projected losses  to credit unions were  $13.5 to $16.5 billion versus the actual outcome of a $6.0 billion in surplus.

Why were the accounting estimates so far in error?   Were the corporates more than adequately reserved even at these extreme loss estimates?  What options for resolution were considered?   What happened to the plan presented by the corporate network?

Why did NCUA refinance the assets via Wall Street at extremely high, above market rates, when credit unions had demonstrated the ability and willingness to continue funding all corporates at much lower costs?

What can be learned from a patient, long term view of problem resolution especially one caused by cyclical fluctuations in asset or collateral values?

The immediate public diagnosis and blame placed on corporate boards and management is a typical reaction when any firm is in difficulty.  However is that criticism still useful as the legal recoveries show that fraud played a role in the design of these investments  all of which were NCUA authorized?  Will the corporate system ever  play a leadership role again, or are they to remain permanently muzzled due to a crisis assessment that has proved wrong in so many ways?

Past problems may seem to offer little for current events.   But not learning from them means the mistakes  of panic judgments, placing blame, misplaced expertise and  failing to respect mutual efforts are easy to repeat.

One of the great strengths of the cooperative system has been its ability to fix things and make necessary changes.   Both at the credit union and the system’s institutional levels.

Cooperative design can check the ambition of  self-interest by the power of collaboration and common purpose.   A through public study of all the circumstances around the corporate events would restore credit union confidence in the ability of the regulator and industry to work together when future crisis occur.

An earlier  analysis of why this look back is so vital can be found here.

 

 

 

 

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A Coop Veteran on Opportunity

Randy Karnes led CU*Answers and its affiliates for over 25 years as CEO.   Combining network strategy in the Internet era with cooperative design was critical to the CUSO’s strategy.

He has stepped back from the CEO’s role and is heading to retirement.  He continues to share thoughts on what makes credit unions and CUSO’s successful.

Seeing Opportunities Within and Without

How do leaders rally their teams to moments of opportunity? Drive themselves to see others’ initiatives in a system as part of their own?

There have been times when inventorying the business problems in a marketplace was the right play to call out opportunity.  But when defining problems becomes more debilitating than inspiring as opportunities you have to change gears. 

This is a market of opportunity for employees and professionals – to open their eyes to the chance to be more.

Show everyone around you how to engage for opportunity, that they are the solutions and entrepreneurs with spirit.  Engage…..and corporate tricks like mergers, re-organization, and internal gambits will be far less inviting.  Engage your team one task at a time and watch your confidence in the way forward grow.

In my entire career I have never seen a marketplace so ready to reward people who are simply positive about the opportunity all around them. 

Cooperative Governance and Advisory Boards

Cooperative Business Designs and the drive for customer-owner governance:

Can 7 directors  (CU or CUSO) be seen as credible for 100,000 customers, 12-24 business lines, multiple product/service distinctions, and the intensity for cooperative passion? 

Our niche (cooperatives and credit unions) doubt it every day in pushing back against our competitive model.   But do we push back with actionable and tangible examples that overcome the issues?

There is a reason that Jim Blaine (SECU) had nearly 300 advisory boards – perception matters – the design and the faces of governance matter.  That is fundamental to a network’s success.  Our governance should be a meaningful platform for our competitive advantage and distinction.

This is not to say that there is a size limit for cooperatives. Rather this is to say that scaling governances, delineating the passions applied, and marketing customer-owner leadership closer to the delivery of the value, are the key to everyone’s seeing that cooperatives are different, no matter the size.

 

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An Opportunity for Credit Union Disruption

Multiple stories have reported banks closed 2,927 branches in 2021, a 38% jump.  The troubled  Wells Fargo closed 267, closely followed by US Banks’ 257.

Even with  recent efforts to align with FinTech startups or other virtual entrepreneurs, credit unions have traditionally followed a “second to market” strategy in their growth efforts.

They have done so using a disruptive model, offering products or services that are better, faster or cheaper than existing providers.

When many think about disruptive efforts, their focus is on technology or other innovation. Two classic examples are digital music downloads replacing compact discs.  Recently Zoom has emerged as a huge disruptive innovator during the pandemic, owing to its modern, video-first unified communications with an easy and reliable performance.

The more classic disruption described by the Clayton Christensen, the author of this business concept, is not about new technology but targeting vulnerable market segments held by dominant firms. This  is the classic definition:

Disruptive Innovation describes a process by which a product or service initially takes root in simple applications at the bottom of a market—typically by being less expensive and more accessible—and then relentlessly moves upmarket, eventually displacing established competitors.

Tapping Undesirable or Ignored Markets

For many credit unions a crucial competitive advantage is local presence and reputation.

They serve members ignored by incumbents who typically focus their products and services on their most profitable customer base.

Closing branches and exiting markets which banks no longer see as attractive can open up opportunities for credit unions. From these market footholds,  they can then move upmarket eventually displacing the original established providers.

Most credit unions establish new footholds by stressing superior service and local commitment.   These bank branch closures may open up new opportunities employing  classic cooperative advantages.

FinTech Innovation may be more fun and sexy to talk about.   But credit union growth has typically followed traditional disruption design.  Are these branch closings happening in your market area?

 

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Bon Mots III for Friday

“Our motivation for eliminating and reducing fees associated with overdraft is simple – it’s the right thing to do. These fee changes are consistent with our core value as a credit union of people helping people. Those who rely on courtesy pay are often the ones least able to afford it.  United Credit Union President/CEO Terry O’Rourke

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“Creativity is just connecting things.” Steve Jobs

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“Don’t laugh, folks: Jesus was a poor man.” —Phrase on a canvas covering on the mule train of the 1968 Poor People’s Campaign

“Jesus was trained in carpentry—a form of manual labor akin to low-wage work today—and he relied on the hospitality of friends, many of whom were also poor, to share meals and lodging with him. Jesus, the disciples, and those to whom they ministered were poor, subjected, and oppressed. They were the expendables.” Jessica C. Williams, the Poor People’s Campaign

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“As I think about my entire life, what would I like people to think of Jim Jukes? ‘I see things, I say things and I do things’. I can’t accomplish anything except through other people.”  (from Jukes’ brief 2018 autobiography  as a credit union leader courtesy of Brad Murphy)

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As you read different posts, success cannot be marked by finding more words. Reading is not about more ideas, it’s about changing how you go about you do your job.

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We Did It All by Ourselves

In reviewing NCUA’s board agenda today, I was reminded of two different explanations about how one succeeds in our country.

Two paradigms influence most thoughts about a person’s role in American society and its economy.

One is the image of heroic individualism, the self-made person.

The second suggests  that life is lived and uplifted in community.

Credit unions embody both impulses.   Individuals combine to help each other succeed with their specific hopes and dreams.

“Captain of My Soul”

The poem “Invictus,” by William Ernest Henley ends with these words:  “I am the master of my fate,/I am the captain of my soul.”

Todd Harper’s first speech in February 2021 following his appointment  as NCUA Chair began with these words: “when I first became Chairman, I issued my Commander’s Call to the agency.”

One academic’s comment on Henley’s poem:

The advantage of being a great captain of one’s soul is that no one else need be consulted; those in our culture who are masters of their fates do not, in other words, do a great deal of “discerning.”

Author Kate Bowler writes about this same human impulse with irony:

I am self-made. Didn’t anyone tell you? I brought myself into the world when I decided to be born on a bright Monday morning. Then I figured out how cells replicate to grow my own arms and legs and head to a reasonable height and size. Then I filled my own mind from kindergarten to graduation with information I gleaned from the great works of literature. . . . 

I’m joking, but sometimes it feels like the pressure we are under. An entire self-help and wellness industry made sure that we got the memo: we are supposed to articulate our lives as a solitary story of realization and progress. Work. Learn. Fix. Change. Every exciting action sounds like it is designed for an individual who needs to learn how to conquer a world of their own making.

In contrast, her understanding of  achievement is:

It’s hard to remember a deeper, comforting truth: we are built on a foundation not our own. We were born because two other people created a combination of biological matter. We went to schools where dozens and dozens of people crafted ideas and activities to construct categories in our minds. We learned skills honed by generations of craftspeople.

Discerning Responses to Today’s Agenda

Effective credit union leaders, at their best, recognize this ego-centered temptation when becoming  ”commanders.” They understand that achievements are because of the foundation of other’s efforts-past and present.

Pay attention as you hear or later read about Board members’ comments on today’s topics.  A good example may be the discussion of the CLF’s future.   Listen for those who see themselves as Captains and those “who are  building on a foundation not their own.”

 

 

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A Theft of $10 million or Just Spreading Credit Union Goodwill: You be the Judge

This is a true story.  The lead characters are the CEO’s and boards of the two merging credit unions, NCUA’s Regional Office, CURE in DC and the California Department of Financial institutions.

The facts are from documents sent members, IRS 990 filings, FOIA data and public statements by those involved.  I give my point of view.  You can decide what your interpretation of the information would be.

The Story Begins

The first step was for the actors to draw up their scheme, include a lot of financial “chaff”  around the theft and then decorate the proposal with positive sounding future rhetoric  about “empowering people and economies of scale.”

Next, submit this draft proposal to NCUA’s Regional office for their OK.

No surprise there. NCUA approved the plan, detailed below.  Now it is full speed ahead.

With the regulator’s green light, the next step was to form a California based non-profit with initials mimicking the credit union’s name: FCCU2 Foundation.  The stated purpose is to “support charitable and educational activities for the betterment of the Stockton area.”  Despite the name, it is neither a foundation in traditional meaning nor tax exempt.

The two executives responsible for this new “charitable foundation” are the credit union’s CEO, Michael Duffy and the Board Chair Manual Lopez.   The organization was registered on June 25, 2021 with Lopez the CEO and Duffy the agent.  These two are also members of the five-person credit union board which approved these actions.

On August 6, or forty-two days after registering FCCU2, Board Chair Manual Lopez signs Financial Center Credit Union’s Notice of Special Meeting announcing the intent to merge with Valley Strong Credit Union.  Voting will end on September 23.

The Notice contains required information about the transfer of credit union reserves to this just created organization including:

  • the $10 million “capital distribution” to the newly formed non-profit FCCU2;
  • a new job for CEO Michael Duffy as Chief Advocacy Officer for the continuing credit union, Valley Strong;
  • Valley Strong Credit Union CEO Nicholas Ambrosini’s commitment to provide “an additional $2,500,000 to the FCCU2 Foundation over a term of ten years.” The wording is unclear whether this is $2.5 million in total or $2.5 million per year ($25 million) for ten years.

Other mandatory disclosures in the notice detail the additional financial benefits four of the five senior managers will gain from the merger.  A special  dividend will be paid to  members if the combination is approved in their vote.

This special dividend is feasible because the merging credit union’s net worth, over 16%, is double the 8.7% at Valley Strong.  The proposed dividend will be determined by a complicated proposal based on member tenure, most recent 12 month share balance with a maximum cap on the share balance.  The estimated payout is “approximately $14,973,948.00” in the Notice-an unusually precise number, suggesting a very detailed plan.

Members were given 48 days to cast their vote. On September 23, 2021, the called special meeting took place.  38 members attended in person.  Thirteen voted in favor and zero opposed. 2,667 members mailed ballots with 383 opposed and 2,284 in favor.

The final tally was 86% of members for and 14% opposed. Only 9% of the credit union’s 29,672 members voted on this request to give up their charter.

Financial Center’s Final Bottom Line

The merger was formally completed on October 1, 2021, seven days after the vote.

The financial results of the merger are reported in Financial Center’s last call report as of September 30, 2021. The loss for this final nine months  of the credit union’s 66-year life span is $23.7 million. This is due to the $10 million “capital distribution” to FCCU2 and recording the special dividend of approximately $15 million.

This one quarter’s loss reduced the credit union’s net worth ratio, accumulated over seven generations, to 12.4% from 17.2% one year earlier. That ratio was still 4% points (50%) higher than Valley Strong’s net worth at the same date.

Faking It Till You Make It

Recent events in California have highlighted the ethos of self-enrichment, especially in Silicon Valley startups.  A phrase used describing these unproven business ideas is: “faking it till you make it.“

This is the practice of promising future bold success even though past results do not support the vision.  When there is little or no objective evidence that a concept could succeed, a hyperbolic sales pitch is necessary to continue fund raising and keeping the effort going.

Michael Duffy has worked at Financial Center since 1993, the last 21 years as CEO.  His sister, Nora Stroh, also joined in the 1990’s.  She was Executive VP and COO, the number two position, all the time Michael was CEO.  In the 990 IRS filing for 2018, each reported total compensation of over $1.0 million.

During the final five years of their leadership, the credit union’s loans declined every year, from a peak of $176.5 million at December 2016 to $102 million at the merger date.  This is an annual growth of -10.3% (negative).  Total members fell by 2,700 or almost 2% per year in the same time frame.

However, the credit union continued to increase its net worth ratio reaching a peak of 20% at December 2018, before falling to 17% one year prior to the merger. Until January 1, 2022, regulators considered credit unions well capitalized with 7% net worth.

As net worth rose, falling loan balances resulted in the loan to asset ratio declining from 39% to 16% at the merger date. As these risk assets fell, the credit union continued adding unnecessary  reserves, reaching almost three times (300%) the well capitalized standard. This resulted in shortchanging members on their savings returns and/or charging higher loan rates than necessary for a safe operation.

The credit union’s leadership failed year after year in its most critical member service: making loans.  However, it piled up reserves relentlessly, until the leaders decided to bail out.  And take some of the surplus reserves with them.

Maintaining a Positive Public Profile

During this same period of decline, the credit unions maintained its public relations in high gear.  According to the 990 filings for 2017 and 2019, the credit union made political donations from members’ funds for local political campaigns, such as Stockton city council and mayor, and for statewide office, Newsom for California Governor.  Political donations in 2019 went to ten campaigns and $25,000 to the California Credit Union League Pac.

Maintaining the positive  image was important for Duffy. On June 1, 2020, the credit union announced a $1.0 million donation by the Michael Duffy Family Fund and the employees of the credit union.  An enlarged symbolic check to Stockton’s COVID-19 Response Fund was given by Duffy to the mayor, recorded for TV broadcast, and later published on social media.

The same press release also stated that the credit union had developed a Loan Holiday program to “alleviate financial burdens for its members.” Whatever the program’s intent, outstanding loans at the credit union fell by $40 million in 2020 from the prior year.

In the many years leading up to the merger, the credit union had been operating with the form but not the substance of a cooperative charter.  It was run as a family business, promoting the public profile of the CEO, not the well-being of members.

In contrast with the nationwide member and loan growth in the industry, Financial Center’s data shows it had ceased serving members as its primary activity. Instead, it added to a bigger and bigger reserve nest egg to dip into down the road. In other words, faking it till you can take it.

A Change of Perspective

Michael Duffy’s public  announcement of the merger intention at the end of May, 2021, was accompanied by uplifting logic and his recent strategic  insight:

“As the CEO of Financial Center Credit Union for the past 21 years, my perspective on mergers has evolved just as much as our industry has in that same time period. As credit unions built by select employee groups (SEGs) increasingly partner with community credit unions, I have marveled at what credit unions of today’s scale can accomplish when they join forces with their Member-owners and communities chiefly in mind.

In a financial services sector that is constantly evolving, this merger is a true embodiment of the credit union industry’s cooperative mind-set. At its core our partnership with Valley Strong represents us selecting the best credit union partner to help us achieve our goals faster than we could duplicate on our own.

The phrase ‘Growing Together,’ is a perfect adage, as this merger represents a strategic partnership between two financially healthy, future focused credit unions committed to providing unparalleled branch access, digital access, and amazing service for the Members and the communities they serve.

After three decades of leadership of the credit union, Duffy has concluded that the institution he led can no longer serve its members because it is not big enough ( “scale” )or “fast” enough.   His reward for this insight and merger endgame is a new position as Credit Union Advocate at Valley Strong. He gains control of  $10 million  funded by the credit union, a firm  no longer able to keep up with the times under his leadership.

It is more than self-dealing hypocrisy.  It is pilfering the members’ money.

Brain Dead Regulatory Oversight

One member who saw through this charade posted a comment on the NCUA’s member-to-member web sight, reviewed by NCUA’s CURE.  He urged a No Vote stating in part;

If Financial Center Credit Union is so flush with cash that it wants to give away $10 million, then that amount should be distributed to members. I’ve written to FCCU twice asking for the rationale for giving away $10 million. They have failed to answer me, obviously because there is no rational reason for giving away $10 million from its member-owners.

However, this brazen appropriation of members’ funds was condoned by the regulators-at every step.

NCUA’s multiple levels of review as well as California’s Department of Financial Protection and Innovation must have been braindead when reviewing this diversion to the control of Duffy and his board Chair, the two founders of FCCU2.

The magnitude of the grab and the cover story of good intentions diverted multiple regulators from their public responsibility.  Especially when accepting these future plans by leadership that had conned their members for years.

NCUA is fully aware of the self-dealing possible in mergers. It posted some of its  concerns when explaining its new merger regulation approved in June 2018.  The following are some of the reasons in the Board Action Memorandum supporting this updated rule:

“The Board acknowledges, however, that not all boards of directors are as conscientious about fulfilling their fiduciary duties (in a merger) . . .

The Board also confirms that, for merging FCUs, the NCUA’s regional offices must ensure that boards and management have fulfilled their fiduciary duties under 12 C.F.R. § 701.4.

Each Federal credit union director has the duty to:

  • Carry out his or her duties as a director in good faith, in a manner such director reasonably believes to be in the best interests of the membership of the Federal credit union as a whole, and with the care, including reasonable inquiry, as an ordinarily prudent person in a like position would use under similar circumstances;
  • The duty of good faith stands for the principle that directors and officers of a corporation in making all decisions in their capacities as corporate fiduciaries, must act with a conscious regard for their responsibilities as fiduciaries.

“Several commenters questioned the NCUA’s authority to regulate credit union mergers, or suggested that the NCUA’s role is limited to safety and soundness concerns. These comments are inaccurate. . .

“In contrast to commenters’ assertions, the statutory factors the Board must consider in granting or withholding approval of a merger transaction include several factors related to safety and soundness, such as the financial condition of the credit union, the adequacy of the credit union’s reserves, the economic advisability of the transaction, and the general character and fitness of the credit union’s management. . .

“Another (commentator) suggested that members have no role in considering merger-related payments to employees. These comments are legally inaccurate and philosophically off-base. The net worth of a credit union belongs to its members. Payments to insiders, especially in the context of a voluntary merger where a credit union could choose to liquidate and distribute its net worth among its members, are distributions of the credit union’s net worth. . .

“Further, the fact that ownership of a portion of a credit union’s net worth is less negotiable than a share of stock in a public company is irrelevant at the time of a proposed merger transaction. A credit union in good condition has the option of voluntary liquidation instead of voluntary merger. . .

(Note:  At June 30, 2021 the credit union reported $109.2 million in total capital.  Cash on hand was $138.9 million.  Net worth ratio was over 16%.  If the credit union were liquidated this would have given the greater Stockton community this immediate cash benefit. The 29,000 Members could choose to join another credit union or use the funds for immediate needs.   Instead the members received just 13.7% of their collective savings in a one time dividend.  Even though this option is referred to in the rule, there is no indication this was ever considered.)

“The Board agrees that mergers should not be the first resort when an otherwise healthy credit union faces succession issues or lack of growth. . .

If these specific statements are insufficient for exercising regulatory judgment, the common law understanding of fiduciary responsibility is even more clear:

The duty of good faith is the principle that directors and officers of a company in making all decisions in their capacities as fiduciaries must act with a conscious regard for their responsibilities as fiduciaries.  These include the duty of care, duty of loyalty and the duty to act lawfully.

Self-dealing is an illegal act that happens when a fiduciary acts in their own best interest in a transaction, rather than in the best interest of their clients.

“General Character and Fitness”

This misappropriation of $10 million of member funds by the CEO and Chair of Financial Center should bring the following actions by NCUA:

  • the full amount of the $10 million diversion should be clawed back from FCCU2 and distributed to the members;
  • the instigators at the board and in management who developed and implemented this scheme should be permanently barred from participating in credit union affairs;
  • the minutes and all other documentation relating to the additional required contribution(s) of $2.5 million by Valley Strong to FCCU2 for ten years should be reviewed. If this commitment was a quid pro quo (inducement) in return for the merger, then all parties approving this payment(s) should also be barred from engaging in the affairs of a credit union-board and management.

Every person in the regulatory approval process of this merger should have their actions reviewed to determine if they should continue to be in positions of responsibility.

Every participant will have an excuse. The creator and enablers of this transaction will defend their role by saying NCUA approved it.  Then they will point out that the members voted on it. NCUA staff will assert there was no safety and soundness basis to object-despite the many Board  statements quoted above.

Citing deeply flawed processes to defend one’s conduct, does not make the actions proper.

In presenting these defenses, the parties involved merely demonstrate incomprehension of one of the oldest rules of society: Thou shalt not steal.

Were such excuses offered, it would  confirm the absence  of fiduciary awareness and protecting member interests by the parties to this transaction.

These failures are not due to a rule needing updating. Rather it is an example of persons who lack commonsense judgment about accountability.

If NCUA fails to claw back the funds and do nothing it will demonstrate that it has neither foresight nor hindsight when it comes to protecting members. However, this would not be the first time such blindness has occurred; only the latest example.

Ignoring this case will just create a new benchmark for the next merger personal enrichment effort. It’s time to halt these sham merger member deprecations.

 

 

 

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Words of Wisdom

Smart Children: If your plan is for one year, plant rice. If your plan is for ten years, plant trees. If your plan is for one hundred years, educate children.

Parents: If you nurture your children, you can spoil your grandchildren. But if you spoil your children, you’ll have to nurture your grandchildren.

National Parks: “There is considerable overlap between the intelligence of the smartest bears and the dumbest tourists.”

 

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A New Relationship in Year 3 of the Quarantine

The best times of our lives are not about what we did, but who we were with.

Twenty three million American households acquired a pet during the COVID-19 crisis

                                   Alix and Murphy

Will you hold my hand
will you guide me home
will you show me the way
when my light has gone?

When I can’t see where to go
when I don’t know what to do
when I’m lost and alone
will you stay with me?

When you can’t see where to go
when you don’t know what to do
when you’re lost and alone
I will stay with you.

MURPHY

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BON MOTS II for Friday

A member comment on the Proposed Merger of WarCO FCU and First Financial:

The merger may appear to be a financially good move as First Financial of Maryland FCU has more assets. However, the documentation indicates the Pocomoke location “will remain open for a period of time.” There are no First Financial of Maryland FCU’s located on the Eastern Shore. Therefore, all work will need to be done electronically and one most likely will no longer be able to walk into an office anymore.  Brian Cook, Member, WarCO FCU

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“You have to pick the places you don’t walk away from.”  Joan Didion

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Jim Blaine: I think one of the ideas which used to ring true was the thought that trying to compare CUs to banks was like trying to compare Ralph Nader to GM because they were both in the car business….any attempt at comparison doesn’t really make sense…entirely different purposes. Credit Unions should never be “comparable” to banks; it seems a useless exercise…CUs should provide the “contrast” to banks. ( January 2022)

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 Jeff Bezos: If you’re competitor focused, you have to wait until there is a competitor doing something. Being customer-focused allows you to be more pioneering.

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Ed Callahan: “The only threat to credit unions is the bureaucratic tendency to treat them, for convenience sake, the same as banks and savings and loans. This is a mistake, for they are made of a different fabric. It is a fabric woven tightly by thousands of volunteers, sponsoring companies, credit union organizations and NCUA-all working together.“  (Chairman, National Credit Union Administration, April 1985)

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Samuel Johnson  observed that “what is written without effort is generally read without pleasure.”

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Weekend reading recommendation: The Fed’s Doomsday Prophet Has a Dire Warning for Where We Are Headed.   The article illuminates the distinction between traditional consumer price inflation and asset inflation (S&P index up 47% the last two years) and the consequences for our political economy.

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NCUA and the Supreme Court

There is a case before the Supreme Court this term that could influence credit unions’ options when they disagree with an NCUA action or ruling.

In the 1984 Chevron case, the Court’s decision gave deference to a federal agency’s interpretation, as well as enforcement, of the law.

As described below this precedent and the authority it gave federal agencies is now the subject of an appeal that might curtail the scope of that decision. The case is described below.

How Might this Affect Credit Unions

If the Court’s decision were to limit the agency “deference” practice  from Chevron, it would create better opportunities for credit unions to challenge NCUA actions.

A recurring example of the agency’s unilateral interpretations are its determinations of the adequacy of a credit union’s loss allowance and hence its net worth/PCA ratio.

A classic example is NCUA’s conservatorship of Arrowhead Central Credit Union in 2010.  The agency said the credit union was severely undercapitalized with a net worth ratio of only 3%.  However that ratio was because the agency disputed the adequacy of the credit union’s allowance account.  Examiners required significantly more allowance expense.  Subsequent events showed management’s original estimate was exactly on target.

NCUA celebrated the credit union’s miraculous turnaround in May 2013 pointing to a net worth of 10.5% up from the 3% estimate when conserved 36 months earlier. The situation was another example of regulatory misjudgments from which there has been no external appeal.

Ironically the legacy of this account’s over-funding continues today. Arrowhead’s coverage ratio (allowance account/delinquent loans) is 940% or roughly 800% higher than the industry average.

Even NCUA board members who interpret the law as they read it have no standing.   Board member Mark McWatters,  a lawyer, presented his legal analysis opposing  the agency’s risk based capital proposals as not authorized by statue. His reasoning was “overruled” twice by a simple board vote, 2 to 1.

Rebalancing Unilateral Decision Making

The Chevron precedent has inhibited credit unions from challenging NCUA’s judgments and actions in court.   For example the so-called merger of the TCCUSF with the NCUSIF to use the funds for natural person loses was specifically prohibited in Congress’s  legislative language with the bill.  This was pointed out to the board, the IG and  NCUA’s auditor in letters and formal comments, but to no avail.

Should the Chevron precedent be modified, it could result in a better balance between the judgments of the regulator  and the rights of credit union’s to challenge those determinations.

Agency deference

by Jonathan Turley, Shapiro Professor of Public Interest Law, George Washington University. (Jan 1, 2022)

While not often discussed with the “matinee” cases of the term, one case on the docket could bring sweeping impacts across various areas — from the environment to financial regulations to public health. American Hospital Association (AHA) v. Becerra raises a highly technical question of a U.S. Department of Health and Human Services rule that cut outpatient drug reimbursements to hospitals. The rule is based on an agency interpretation of vague statutory provisions — an interpretation that was defended under the deference afforded to agency decisions.

 The case is technically about outpatient care for Medicare Part B recipients; however, for some justices, particularly Samuel Alito and Neil Gorsuch, it is all about Chevron and agency deference.

 Chevron USA Inc. v. Natural Resources Defense Council Inc. is a 1984 administrative law case that has come to embody the role of federal agencies in not just enforcing but creating law. The “Chevron Doctrine” has insulated agency decisions for decades from substantive review, giving federal agencies an overwhelming degree of authority in our system of government.

 For some of us, the dominance of federal agencies has become equivalent to a fourth branch of government. The question is whether a critical mass has formed on the court to substantially curtail that decision. If so, AHA v. Becerra could be a torpedo in the water for the Chevron Doctrine.