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Dreher Tomkies LLP
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Columbus, Ohio 43215
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OCC AND TRADE GROUP FILE SUITS AGAINST NEW YORK ATTORNEY GENERAL OVER VISITORIAL AUTHORITY

The Office of the Comptroller of the Currency filed suit against New York Attorney General Eliot Spitzer on June 16, 2005, seeking a declaratory judgment and preliminary injunction to prevent him from interfering in the OCC’s fair lending examination and supervision processes at national banks. The OCC’s action follows the filing of a suit by The Clearing House Association, an
association of leading commercial banks, seeking similar remedies against the New York Attorney General.

The disputes relate to the Attorney General’s request for certain mortgage lending records that national banks and their operating subsidiaries are required to maintain under the Home Mortgage Disclosure Act. The OCC asserts that Spitzer’s demand for such records and attempts to investigate the compliance of national banks and their operating subsidiaries with federal or state law are expressly prohibited by the “visitorial power” provisions of the National Bank Act and OCC regulations. The OCC seeks to enjoin Spitzer’s from interfering with its plenary authority to ensure the efficiency and integrity of the federal national bank supervisory regime and its ability to carry out its responsibilities under federal law. Specifically, the OCC asked that the federal court:

  • Declare that the New York Attorney General may not demand, examine, or inspect the books and records of national banks or their operating subsidiaries, except as specifically authorized under federal law;
  • Declare that the New York agency has no authority to enforce the Equal Credit Opportunity Act, New York Executive Law section 296-a or other laws, rules or regulations concerning the banking activities of national banks or their operating subsidiaries except as specifically authorized under federal law;
  • Permanently enjoin the New York Attorney General from demanding, examining or inspecting the books and records of
    any national banks or their operating subsidiaries, except as specifically authorized by federal law; and
  • Permanently enjoin the New York Attorney General from instituting any enforcement activities against national banks or
    their operating subsidiaries, except as specifically authorized by federal law and from any further usurpation of the OCC’s exclusive authority to supervise and examine national banks or their operating subsidiaries, except as specifically authorized by federal law.

On Monday June 20, Judge Stein declined to issue a temporary restraining order against the Attorney General but reportedly indicated that he might reconsider a restraining order if the Attorney General's office tried to subpoena private records before the court could rule on the Clearing House Association suit. In the meantime, it appears that the Attorney General can continue
his investigation.

Written arguments are due from the parties by July 11.

􀂗 Mike Tomkies