VIRGINIA BANKERS ASSOCIATION — SERVING VIRGINIA’S FINANCIAL COMMUNITY SINCE 1893
Bank School Holds
Summer Session IN THIS ISSUE
BANKRUPTCY PETITIONS | FLOOD INSURANCE INQUIRIES | REACHING FOR YIELD
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V I R G I N I A B A N K E R S A S S O C I AT I O N — S E RV I N G V I R G I N I A ’ S F I N A N C I A L C O M M U N I T Y S I N C E 1 8 9 3
2011-2012 OFFICERS AND DIRECTORS OF THE VIRGINIA BANKERS ASSOCIATION William Couper, Chairman, Bank of America Jeffrey M. Szyperski, Chairman-Elect, Chesapeake Bank Charles H. Majors, Immediate Past Chairman, American National Bank & Trust Co. O.R. Barham, Jr., StellarOne Corporation Frank Bell, III, Chesapeake Bank Katherine E. Busser, Capital One Financial Corporation Tim Butturini, Wells Fargo Bank, N.A. Larry G. Dillon, C&F Bank Randy K. Ferrell, The Fauquier Bank Larry Heaton, Franklin Community Bank Gail Letts, SunTrust Bank John R. Milleson, Bank of Clarke County Samuel L. Neese, Highlands Union Bank Susan Ralston, Bank @Lantec Gary R. Shook, Middleburg Bank David P. Summers, Virginia Heritage Bank Daniel G. Waetjen, BB&T Richard T. Wheeler, Jr., Franklin Federal Savings Bank
Statements of fact and opinion are made on the responsibility of the authors alone and do not imply an opinion or endorsement on the part of the officers or members of VBA.
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AT-LARGE MEMBERS Benefits Corporation Chair Richard M. Liles, Bank of McKenney Management Services Inc. Chair Frank Bell, III, Chesapeake Bank Government Relations Committee Chair Christopher W. Bergstrom, Cardinal Bank VBA Education Foundation Chair J. Peter Clements, The Bank of Southside Virginia
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EDITORIAL & EXECUTIVE OFFICES 4490 Cox Road Glen Allen, VA 23060 804-643-7469 Fax 804-643-6308 www.vabankers.org Bruce T. Whitehurst President and CEO Virginia Bankers Association
Chandler Dewey Manager, Communications/ Marketing and Financial Literacy Virginia Bankers Association
SUBSCRIPTIONS If you would like to subscribe to Virginia Banking, contact Chandler Dewey at email@example.com. Virginia Banker is published bi-monthly. Copyright 2011.
DIRECTORS Timothy M. Warren Chairman Timothy M. Warren Jr. CEO & Publisher David B. Lovins President Vincent M. Valvo Group Publisher & Editor in Chief FINANCE & ADMINISTRATION Jeffrey E. Lewis Controller / Director of Operations EDITORIAL Christina P. O’Neill Cassidy Norton Murphy
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in every issue 4 Calendar of Events 5 Insights 6 Worth Noting 8 Compliance Corner 10 Legal Line
Are Banks Reaching for Yield? Seeking solutions to risk management problems.
Bankruptcy Petitions Increasing As the economy continues to struggle, bankruptcy petitions are on the rise. Here’s a refresher on the basics.
Flood Insurance Inquiries for FDIC Ombudsman Bankers are encouraged to refer questions about flood insurance to FEMA and the FDIC Ombudsman.
11 Washington Update 14 Legislative Update 20 Welcome New Associate Members 22 Bankers on the Move
Send us your thoughts or ideas on Virginia Banking! Please email Chandler Dewey at firstname.lastname@example.org. Has your information changed? Please email Kellee Edelin at email@example.com with your new contact information.
September/October 2011 | Virginia Banking 3
COMMERCIAL LENDING 2011, GLEN ALLEN October 18-20
COMPLIANCE WITH FEDERAL REGULATIONS SEMINAR, SANDSTON December 13
WEBINARS BUSINESS CONTINUITY AND DISASTER RECOVERY – 10 PROVEN STEPS TO BUILDING AN EFFECTIVE PLAN October 11
MERGERS AND ACQUISITIONS IN THE CURRENT ENVIRONMENT October 11 STRATEGIC PLANNING FOR A NEW ENVIRONMENT October 11 DEVELOPING A REFERRAL PROGRAM THAT WORKS October 12 IRA REPORTING October 12
MORTGAGE DISCLOSURE COMPLIANCE, SANDSTON December 15
Information and online registration is available at the VBA website. Please either go to www.vabankers.org or use this form to check the box next to the program you want information about, then fax the form to the VBA office at 804-643-6308. The VBA will send you information about the program as soon as it is available, usually eight weeks before the program. Name_________________________________________________
Address_____________________________________________________________________________________________________________________ City________________________________________________________________ State/Zip____________________________________ Phone___________________________ Fax_________________________ Emai____________________________________________________ For more information go to www.vabankers.org.
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A Debt of Gratitude
Bruce Whitehurst President and CEO, Virginia Bankers Association
tough couple of months with our banking legends,” is how one banker responded when he heard about the passing of Austin Roberts so soon after we lost Bill “Tree”Rountree. That statement resonated with me as it underscored the fact that recently we have lost two great banking industry leaders in Austin and Tree. It also occurred to me that these two men had a great deal in common. Just a few years apart in age, both graduated from the College of William & Mary and both made a significant career out of banking. Both worked at Farmers & Merchants Bank earlier in their careers. Austin and Tree lived and worked on or near the water. They were both promoters of people and of communities; their actions spoke louder than their words.
Friends and colleagues, Austin and Tree were active in the VBA in various ways, providing great industry leadership and answering the call whenever they were asked. Both men cultivated strong relationships with state and federal legislators and worked hard for their industry. They touched many lives in their decades as bankers. Austin and Tree loved good wine, loved life, and most importantly, loved their families and friends. Facing the adversity of health challenges – for over two decades in Tree’s case and for a couple of years in Austin’s – both of them pressed ahead, minimizing their physical challenges and discomfort and staying fully engaged in their banks, their communities and their industry. I had the pleasure and good fortune to Continued on page 7
Bruce Whitehurst can be reached by email at firstname.lastname@example.org.
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September/October 2011 | Virginia Banking 5
VBA BANKPAC AND ABA BANKPAC PARTNER FOR SUCCESS
In July, at the ABA’s Summer Leadership Conference, state associations and bankers joined together to deliver an amazing $865,803 to ABA BankPac. That brings BankPac’s total receipts for the year to $1,227,956! The Virginia Bankers Association would like to thank our members for your leadership and support of our BankPAC and ABA’s over the years – especially this year – which is nothing short of incredible. In this current environment, we face many unique challenges and fundraising for the PAC is one of them. We know how important it is to support the national and state PACs, and we are glad that so many bankers are rising to the occasion this year and have joined all of us in this fight.
FREEDOM BANK OF VIRGINIA NAMES NEW CEO In July, Craig Underhill, president of Freedom Bank of Viriginia, also become CEO, upon the retirement of CEO John Rohrback. Rohrback will remain on the company’s board. Underhill, who joined the bank in 2007 as executive vice president and senior loan officer, was appointed president in 2010. Underhill is also a gradu6 Virginia Banking | September/October 2011
ate of the VBA’s Executive Leadership Institute. Additionally, the bank named Robert Willey Jr. executive vice president of corporate banking to help increase commercial banking activities. Congratulations to these bankers on their new roles.
SBA HONORS VIRGINIA COMMERCE BANK’S TERRY ELLIOTT The U.S. Small Business Adminis-
tration’s (SBA) Virginia District Office has announced the 2011 small business award winners, including Terry Elliott, vice president of commercial lending at Virginia Commerce Bank, as Virginia’s Financial Services Champion of the Year. Each year the president of the United States designates one week as National Small Business Week in recognition of the small business community’s contribution to the American economy. The 2011 observance of National Small Business Week was May 16-20 in Washington, D.C., where more than 100 outstanding small business owners from around the country were honored and the National Small Business Person of the Year was announced. Virginia’s Small Business Week event, which was held in Richmond on June 17, honored Virginia’s Small Business Persons of the Year along with five other award winners, including Elliott. Nominations for all of the awards were accepted last fall, and winners were selected by an independent panel of judges.
WE WILL MISS… Austin L. Roberts III, of White Stone died on Aug. 22 at home in the arms of his wife, Barbara, and holding his son’s hand. Roberts was a loving husband and father, and a respected leader in the community. Roberts was born in Washington, D.C. to Austin and Barbara Roberts and grew up in Bethesda, Maryland. He graduated from Walt Whitman High School and from the College of William & Mary, where he received a bachelor’s degree in accounting in 1969 and an MBA in 1971. Roberts had a long and distinguished career in banking, starting after college with First and Merchants Bank, later Sovran; and in 1976, at the age of 29, he became the youngest bank president in the commonwealth of Virginia (First Peninsula Bank & Trust www.vabankers.org
in Hampton). He later helped found Commerce Bank in Newport News. In 1990, Roberts moved to the Northern Neck to become president and CEO of Bank of Lancaster. During Roberts’ 21-year tenure with Bank of Lancaster, he provided extraordinary leadership and vision, and the bank grew from one banking office with assets of approximately $89 million to nine banking offices with $335 million in assets. Roberts contributions extended beyond his community to the state and national level, where he held leadership positions in the Virginia Bankers Association, serving on numerous committees; the Virginia Association of Community Banks; and the American Bankers Association (ABA). Roberts served on the ABA’s board of directors, and on its Education, Communications and Legislative committees. He also served as chairman of the ABA’s Community Bankers Council for the entire nation, an honor never before bestowed upon a banker from the Northern Neck, and one he accepted with humbleness and led with dignity. Roberts was further honored by the ABA when he was asked to testify before Congress on behalf of the banking industry, with particular emphasis on the regulatory burdens and accounting treatments affecting banks’ abilities to lend to small businesses. He will be missed by the banking industry. Please see Bruce Whitehurst’s thoughts on Austin in his Insights column, starting on page 5.
Continued from page 5 work with these fine men for nearly twenty years and am grateful to them for their support, their friendship and their tireless devotion to this great banking industry. Bank of Lancaster (where Austin was longtime president and CEO), Monarch
Bank (where Tree was founding president and CEO), William & Mary football games and VBA events won’t be the same without Austin’s and Tree’s presence. Virginia banking owes them a debt of gratitude and our hearts are with the Rountree and Roberts families. Rest in peace, good men.
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September/October 2011 | Virginia Banking 7
Are You Up to Date with OFAC AKAs? By Donna Rakes and Jim Dray Thomas Compliance Associates, Inc.
he term “AKA” seems like it should be on one of those post office “Wanted!” posters – which actually might be appropriate: AKAs, also (and perhaps better) known as “weak aliases” in the Office of Foreign Assets Control world, are an important part of the government’s catch-the-bad-guys screening process. According to the OFAC, a weak AKA is a relatively broad, perhaps generic, alias that may generate a large volume of false hits. Weak AKAs include nicknames and unusually common acronyms, such as “Erik the Red” or “Mr. Smith.” The OFAC lists these AKAs because targets often use the aliases to refer to themselves, and their compatriots use the AKAs to refer to the suspect as well. Consequently, the OFAC believes the AKAs may be useful for identification purposes, particularly in confirming a possible hit triggered by other identifier information. The OFAC reviewed each alias on the Specially Designated Nationals (SDN) list, based on criteria defined by the OFAC. A computer program identified potential weak AKAs. OFAC subject matter experts reviewed each automated response and made final recommendations on whether or not the alias in question would be considered weak.
Screening for Weak AKAs In general, the OFAC does not expect bankers will screen for weak AKAs – but does expect that such AKAs may help determine whether a hit arising from other information is accurate. If your bank employs manual processes to determine whether new customers, wire transfer beneficiaries and the like are subject to OFAC sanctions, not screening for weak AKAs could cut down on your workload. Current processes at banks that employ automated systems to screen customers and transactions likely will not be affected. However, processes for vetting potential matches on weak AKAs should reflect the OFAC’s stance on these aliases. Due to the nature of the SDN list and the variety of ways the list is formatted, weak AKAs appear differently depending on which file format is utilized. In the text and PDF versions, weak AKAs are encapsulated in double-quotes within the AKA listing. In DEL, FF, PEP and CSV file formats, weak AKAs are listed in the 8 Virginia Banking | September/October 2011
Remarks field (found at the end of the record) of the SDN file. In these formats, weak AKAs are bracketed by quotation marks. In the XML version of the SDN list, there is a Type element for each AKA. The Type can be either weak or strong. According to the OFAC, a person who processes an unauthorized transaction involving an SDN has violated U.S. law and may be subject to enforcement action. Generally speaking, however, if the only sanctions reference in the transaction is a weak AKA and the person involved in the processing had no other reason to know that the transaction involved an SDN or was otherwise in violation of U.S. law, the OFAC typically will not issue a civil penalty for processing such a transaction.
Tech Advances It often is necessary to revisit technological advances with respect to the complexity of search engines. Based on the risk to the bank, methods for complying with OFAC regulations vary greatly. From manually searching the SDN list to complicated computerized search engines based on computational linguistics, the method employed by your bank should reflect the inherent risk to your organization from an OFAC perspective. The process of manually searching the SDN list generally can be performed at little to no cost to the bank. For transactions and new accounts, each individual responsible for searching the list must have the most recent version available. The customer the bank wishes to review is keyed into a search field within the SDN list; if no matches are returned, the bank could print the screen as evidence of this fact and retain the printout for documentary evidence of compliance. The difficulty arises when the OFAC SDN list is updated and the bank needs to screen its customer portfolio against it. The bank would have to find the updated list (or the updates) and manually key each of the SDN names into its core processing customer database to determine whether a match exists. The problem with this process is maintaining documentary evidence that the customer database is being periodically compared against updated lists. Matching technology involves maintaining a customer database file extract on a core processing or third party vendor solution and uploading the SDN www.vabankers.org
Jason Caskey, CPA Financial Services Practice Chair
VBA members seeking information or assistance on fair lending issues should call TCA’s Donna Rakes or Jim Dray. The toll-free number is 800-934-7347. Rakes is manager of TCA’s East Coast regional office in Rustburg. Dray is president of TCA. TCA is the VBA’s endorsed provider of compliance services. www.vabankers.org
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list into the software solution. The bank has the ability to enter a single name into the software search box, and, depending on the relative correlation setting used by the bank, the software would return a match if enough characters match on a percentage basis. The process for periodically screening the customer database is to upload the new SDN list into the software solution and run the database scan for the current customer database against the newly added list. Any potential matches would be returned to the bank after the comparison is completed by the software. This process makes sense for banks with low to moderate inherent OFAC risk. Core processing and other third party vendors have developed computer programs based on Soundex. This algorithm allows vendors to search for words that sound the same. Usually, options are limited to the number of characters that need to sound the same in order to return a potential match. The process doesn’t work particularly well for names translated from Arabic, Cyrillic and character-based alphabets such as Chinese and Korean. Computational linguistics encompasses a field of research dealing with statistical, or rule-based, modeling of language from a computational perspective. As applied to the OFAC, vendors employ highly technical models for translating phonetic variations and any significant transliteration associated with the variances to detect possible matches based on the common list.
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Stonier partners with the Wharton Business School September/October 2011 | Virginia Banking 9
Supreme Court Prohibits Class Actions in Arbitration
Mel Tull General Counsel, Virginia Bankers Association
anks and other companies that prefer to resolve employee and customer disputes through bilateral arbitration can continue their dispute resolution practices thanks to a recent decision by the United States Supreme Court. In the case AT&T Mobility LLC v. Concepcion, the Supreme Court upheld AT&T’s arbitration agreement with its customers and struck down a California law that required companies to provide class action arbitration to its customers. The dispute in AT&T stemmed from an offer for free cell phones with the purchase of AT&T service. The Concepcion family purchased the AT&T service and received free cell phones, but they had to pay $30.22 for the sales tax based on the phones’ retail value. The Concepcions filed a complaint against AT&T, and their complaint was later consolidated with a class action alleging that AT&T engaged in fraud and false advertising. AT&T moved to compel arbitration in accordance with the terms of its contract with the Concepcions. The contract provided for arbitration of all disputes between the AT&T and the customer, but it required customers to bring claims in an “individual capacity, and not as a plaintiff or class
In signing the contract, the Concepcions waived their right to proceed with dispute resolution through arbitration.
member in any purported class or representative proceeding.” In signing the contract, the Concepcions waived their right to proceed with dispute resolution through class arbitration. The Concepcions resisted AT&T’s motion to compel arbitration, arguing that the arbitration agreement was unconscionable and inconsistent with California law because it prohibited class-
wide arbitration procedures. The United States District Court for the Southern District of California and the United States Ninth Circuit Court of Appeals ruled in favor of the Concepcions. The Supreme Court reversed the lower courts’ decisions, holding that California’s classwide arbitration law was inconsistent with the purpose of arbitration and created a scheme inconsistent with the Federal Arbitration Act (FAA). In his majority opinion for the court, Justice Antonin Scalia declared that the financial and procedural benefits of arbitration are sacrificed when the dispute expands from bilateral to class arbitration. Furthermore, state law that prohibits class action arbitration waivers interferes with the FAA, which strongly prefers arbitration according to a contract’s terms to facilitate streamlined proceedings. Banks often prefer arbitration to civil litigation because it has financial and procedural advantages. Arbitration does not involve lengthy discovery practices, nor does it involve a judge and jury. This informality means that disputes can be resolved with greater predictability and more efficiency. These procedural advantages translate into lower attorneys’ fees as lawyers spend less time on a dispute. Classwide (as opposed to bilateral) arbitration nullifies many of the benefits of conducting arbitration. As expressed by Scalia, “the switch from bilateral to class arbitration sacrifices the principal advantage to arbitration – its informality – and makes the process slower, more costly, and more likely to generate procedural morass than final judgment.” Going forward, AT&T marks an important victory for many in the financial services industry as it advances the belief that courts should enforce arbitration agreements according to the contract’s terms. Thus, banks with arbitration provisions in their customer contracts can rely on those terms and take advantage of the benefits arbitration has to offer.
Mel Tull can be reached by email at email@example.com. 10 Virginia Banking | September/October 2011
Dodd-Frank By the Numbers
Frank Keating President and CEO, American Bankers Association
hile July 21 marked the one-year anniversary of the enactment of the Dodd-Frank Act, as well as the
effective date for some of its major provisions, it’s
no cause for celebration. On that day, the Consumer Financial Protection Bureau became responsible for certain consumer protection rules formerly housed in seven other federal agencies. The Office of Thrift Supervision was closed, and the supervisory responsibility for federal savings associations now rests with the Office of the Comptroller of the Currency. Regulation Q – which had prohibited the payment of interest on demand deposits – was repealed. Several other provisions also became effective on the one-year anniversary, and many more will be implemented over the next several months and years in what amounts to the largest-ever overhaul of financial services industry regulation. In marriage terms, a one-year anniversary is described as a paper anniversary. This is fitting for the Dodd-Frank Act: A paper anniversary for a lot of paper. To put things in scale, let’s look at some numbers. As of July 21, the Dodd-Frank Act has resulted in: • 78 proposed banking rules totaling 2,845 www.vabankers.org
• • •
Federal Register pages – which laid end-to-end would be more than twice the height of the Empire State Building. 42 final rules spanning 1,097 Federal Register pages – roughly twice the height of the Washington Monument. 552 employees the CFPB expects to employ. 28 new DFA-related offices created at 10 federal agencies. $1.26 billion in funding through the 2012 fiscal year needed to implement DFA at 10 federal agencies. We need to put the significance of these numbers
to work in telling our story about what has clearly been a huge legislative and regulatory overreaction. Too many policymakers in Washington appear to have forgotten – or are overlooking – the indispensible role that banks play in a market economy. They have forgotten what banks do for their constituents and their communities. It’s up to all of us to remind them about the devastating impact that excessively burdensome laws and regulations have on banks, their communities and our national economy. Gov. Frank Keating can be reached by email at firstname.lastname@example.org. September/October 2011 | Virginia Banking 11
Virginia Bankers School of Bank Management 2011
uring the first week of August, 181 Virginia bankers from across the Commonwealth met at the Darden Graduate School of Business at the University of Virginia in Charlottesville for the Virginia Bankers School of Bank Management. The university, with its wide respect in the national business community and beautiful grounds designed by Thomas Jefferson, provided the ideal setting for this learning experience. The location, combined with a top-notch faculty, a group of excellent fellows, and fun social and community involvement events sprinkled throughout the week, made for a perfect Bank School Summer Session. The Virginia Bankers School of Bank Management is so successful because of the quality of the instructors, who make the school one of the best in the nation. The faculty members include: Richard S. Coughlan, Ph. D, Robins School of Business; Lori Evans, Evans Communications; Mark M. Faircloth, Faircloth Performance Partners; Gary F. Higgins, Bank of America; Jeffrey S. Kane, Federal Reserve Bank of Richmond, retired; Kerry S. Sauley, Ph. D., Louisiana State University; Jimmy Sawyers, Sawyers & Jacobs LLC; Edmond J. Seifried, Ph. D., Sheshunoff CEO Affiliation Program 12 Virginia Banking | September/October 2011
& m.rae resources, inc.; and Charles E. Wilson, Banking Industry Group, Inc. The classes they taught this year, including new additions like “Payments, Technology & Risk Management,” “Consumer and Small Business Lending” and “Capital & Money Markets,” all tie into the curriculum, which is designed to provide students with specific skills in the functional areas of banking, an understanding of how commercial and savings banks fit within the financial services industry, sales and business development strategies, the ability to solve problems, work in teams and make decisions in a managerial setting, and exposure to the increasingly complex and important areas of banking law and regulations. In addition to the required classes that students attend during their three one-week summer sessions, bank school students must complete eight home study problems – four after each of the first two years. The typical assignment requires research and the preparation of a paper based on the research. The home study problems reinforce many of the concepts learned during the oncampus sessions and give participants a heavy dose of hands-on analysis of real-world banking situations. The school also requires participation www.vabankers.org
in a bank executive simulation. This phase of the school allows third-year students the opportunity to make decisions acting as senior officers of a bank. Working in teams, students make operating, lending and pricing decisions for eight fiscal quarters that influence bank profitability and bank stock prices. As in the real world, good decisions lead to improved profits and higher stock prices and bad decisions generate reduced earnings and reduced stock prices. A group of eight fellows are on staff to lead and assist the students with the BankExec program. They are: Frank Bell, Chesapeake Bank; Donald S. Buckless, SunTrust Bank; J. Peter Clements, The Bank of Southside Virginia; A.J. Duke, Federal Reserve Bank; Leton L. Harding Jr., First Bank & Trust Company; Edmond J. Seifried, Ph. D., Sheshunoff CEO Affiliation Program & m.rae resources, inc.; H. Watts Steger, III, Bank of Botetourt and William L. Johns. By the time the summer sessions are completed, bank students have developed a range of skills that will enhance current performance and qualify them as candidates for advancement. Since the students work very hard and are in class all day, it is important to also allow them the opportunity to have a little fun and make connections that will last throughout their entire banking careers. Throughout the week, socials and mixers were held, which allowed the students to get to know each other outside of the classroom. Additionally, the senior class organized a bowling tournament to benefit the Juvenile Diabetes Research Foundation. The event raised $7,250 for the foundation, which is quite an accomplishment! On August 5, 51 seniors completed their third year of Bank School and graduated from the program. Completion of the program is based upon attending all classes, satisfactory performance in class discussions, examinations, home study problems and completion of any other assignments. The accomplishment is bittersweet, as many of the students look forward to attending Bank School every summer. Each year, the VBA recognizes the student in the senior class with the highest GPA. This year, the Honor Graduate was Megan C. Poppe from Old Point National Bank, who had a GPA of 98.1. We would also like to congratulate all the students who graduated this year and want to make special mention of the top 10 percent of the class of 2011: Penny N. Bladich, Cardinal Bank; Whitney S. Burnett, American National Bank & Trust Co.; Bonnie J. Purefoy, Old Point National Bank; Raymond Santelli, First Capital Bank; and Joan K. Sumner, EVB. Congratulations, graduates! www.vabankers.org
Pictured, from left, are the officers of the 3rd Year Class: Dale Schuurman; Rafal Winiarek, TowneBank; Ward Currin, Bank of Lancaster; and Brian Laird, Shore Bank.
Pictured, from left, are the officers of the 2nd Year Class: Charles â€œChipâ€? Jones, Union First Market Bank; Jason McDonough, Cardinal Bank; Sharon Martin, Old Point National Bank; and Wendy Small, Bank of Hampton Roads.
Pictured, from left, are the officers of the 1st Year Class: Diane Smith, Fulton Bank; Russel Marsh, Virginia Commerce Bank; Robert Gutierrez, Virginia Commerce Bank; and Andrew Stone, Virginia Community Bank.
Tammy Sharpe presents a check for $7,250 and two Best Buy gift cards for $50 each to Charlotte Kidd, Executive Director, Greater Blue Ridge Chapter of the Juvenile Diabetes Research Foundation in Roanoke. The senior class raised this money through their bowling tournament. September/October 2011 | Virginia Banking 13
Federal Lawmakers Waver, but Banking Industry is Steadfast
W Matt Bruning Director of Government Relations, Virginia Bankers Association
hether it was the precipice of financial crisis or simply a crisis of leadership, the recent back-and-forth brinkmanship in Washington over raising the federal debt ceiling displayed the political posturing, inability to cooperate productively and willingness to play chicken with the underlying financial stability of our country that justifiably earns Congress and the president their dismal approval ratings. After a series of meetings, threats, lines in the sand, walkouts and maneuvering, Congress was finally able to pass and the president sign a bill that avoided the fiscal uncertainty with Treasury’s possible default deadline. No one involved in the process was pleased with the outcome, but there is no one for them – or voters – to blame, but themselves. Sen. Mark Warner noted his disappointment in the final bill because “this doesn’t get us to the core problem of how do we take on tax reform, how do we take on entitlement reform.” The president continues to desire higher taxes as part of the deficit reduction strategies and conservatives either believe the cuts were not enough or that they hit defense spending too hard. In the end, the bill that passed – overwhelmingly and with a bipartisan vote in both chambers despite the crying and gnashing of teeth – sadly reflects the art of the possible rather than a sustainable solution. The debt ceiling was raised by $400 billion immediately to avoid default, another $500 billion basically assured in the interim and an increase of another $1.2 to $1.5 trillion potentially by the end of the year dependent on certain budget reduction targets being met. This two tranche approach kicks the pain of another debt ceiling debate until 2013, conveniently after the presidential and congressional elections. On the spending side, federal spending is pared down by $917 billion over the next decade, most of which will not hit until two or three years down the road. The remaining deficit savings falls to a new “super committee” of 12 legislators to determine. If the
three members appointed by each party in each chamber agree on a package of at least $1.2 trillion, it goes for an up-or-down vote to Congress. If they fail to reach agreement, it would trigger a $1.5 trillion across-theboard (mostly) cut, including defense spending. The bill also requires a vote on a balanced budget Constitutional amendment, but does not guarantee passage. Since the bill’s enactment, our economic outlook has only grown murkier. Perceiving the action on the deficit as underwhelming, S&P downgraded the U.S. credit rating, which in turn spooked investors here and abroad. The volatility of the market continues with daily contradictions and uncertainty, especially in the financial services industry. The Federal Reserve indicated their willingness to keep interest rates near zero through mid-2013 days after lower than expected job figures were released. Fears have increased over another economic dip, not just a slow recovery. The lack of clarity on the direction and outcome of the newly-appointed super committee will hang over our collective heads until the end of the year, only heightening those fears. By law, that group must have their initial meeting before Sept. 16, but, based on Congress’s previous proclivity for deadline dealings, it is likely that they will use every second of time up to their Nov. 23 deadline. Without restrictions on what they can consider, there are several areas impacting our industry that the group might consider. Previous deficit panels have contemplated caps on the amount of mortgage interest that can be claimed on income taxes. In a recent joint letter in the Richmond Times-Dispatch, VBA President and CEO Bruce Whitehurst, along with Virginia Association of Realtors CEO Scott Brunner and Home Builders Association of Virginia CEO Mike Toalson, noted that should this occur, “homes become much more expensive to build or buy, property values go down, and local taxes have to be raised (or services cut) to make up the shortfall.” The VBA will continue to advocate against changes to
Matt Bruning can be reached by email at email@example.com. 14 Virginia Banking | September/October 2011
the mortgage interest deduction. Lawmakers might also choose to look at new revenues, such as the current tax exempt status of credit unions. It will be interesting to see how those credit unions that have certainly been trying to act like banks respond to that suggestion. Finally, a proposal has been floated to institute a new financial transaction tax on trades of derivatives, stocks, currency, and other financial instruments as further punishment on our industry. Overall, we will continue to monitor the developments of the committee and work with our allies to advocate for solutions that do not inflict further harm on our industry. While the posturing and politics of the recent debt deal will regrettably remain as this debate goes on and the resultant financial uncertainty lingers, it is important for you and your customers to remember that our industry remains well-capitalized, FDIC-insured and ready to aid in our recovery.
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September/October 2011 | Virginia Banking 15
Are Banks Reaching for Yield? By Raleigh A. Travillion Senior Vice President, UMB Bank
recently attended a regulator panel discussion on interest rate risk and investment portfolio management issues. Present at this discussion were representatives from the Office of Comptroller of the Currency, the Federal Reserve Board, Federal Deposit Insurance Corporation and various state regulators. I was struck by the concerns of all of the regulators in attendance regarding the risks they perceived many banks were taking in the investment portfolio. Specifically, they cited examples of banks reaching for yield in the portfolio by extending maturities significantly and assuming what they believed to be significant op-
tion risk (call and prepayment risk) and interest rate risk. The bankers present cited increasing concern over narrowing net interest margins and the declining yields available to them in the securities market – valid concerns in these times. To be sure, yields have declined significantly over the past four years and the most recent announcement by the Federal Open Market Committee (FOMC) to hold shortterm rates at the current levels until at least mid2013 has had the added consequence of flattening the yield curve by approximately 70 basis points. The flattening of the curve places further pressure on reinvestment options and the net interest margin. The regulators pointed out, and perhaps correctly, that they feared many banks lacked the necessary tools to adequately measure and manage the potential risks they were assuming. The tools available for many community banks to measure these risks can be somewhat limited, but they do not have to be. Historically, many banks have used a rate shock analysis to measure potential market value changes in the investment portfolio for a given rate change (e.g. 100, 200 and 300 basis points). These same rate assumptions are used to project the risks to net interest income and to calculate the longer-term risks to capital using the economic value of equity calculations. A rate shock, while designed to capture a “worst case” scenario in many cases, ignores other changes that occur with the interest rate market, as well as the changes that occur within the bank’s balance sheet. Generally, as interest rates change – either increasing or decreasing – the relationship between long-term and short-term interest rates change too. For example, typically as interest rates decline short-term rates will decline at a faster pace than longer-term rates, causing the yield curve to steepen (the difference between long-term and short-term rates becomes greater). By the same token, as interest rates rise, short-term rates generally increase at a faster pace than long-term rates, causing the yield curve to flatten. This relationship can cause additional pressure on the net interest margin since many, but not all, banks have a ma-
Raleigh A. (Andy) Trovillion is senior vice president at UMB Bank. He can be reached at firstname.lastname@example.org or 1-800-443-5962. 16 Virginia Banking | September/October 2011
jority of their funding sources priced at the short-term end of the yield curve and a portion of their assets are priced at the longer-term end of the yield curve. This pricing relationship is a risk that many interest rate risk systems miss by only using a rate shock analysis. An additional risk historically excluded from these reports is the potential changes that can occur in a bank’s balance sheet make-up. In general, interest rates decline due to the FOMC lowering short-term interest rates in response to a slowing economy. As the economy slows, loan growth in many banks decline, causing an increase of funds into the investment portfolio: higher yielding loan dollars will flow into lower yielding investment securities. This scenario, coupled with the general decline in interest rates, can put pressure on net interest margin unless banks are able to lower their interest expense at a sufficient pace to offset this reduction in interest income. The opposite can occur as interest rates rise: an expanding economy will present – in many cases – more lending opportunities permitting lower yielding investment securities to roll-off and fund higher yielding loans. But if a bank is unable or unwilling to allow the investment securities to fund the loan growth, either through the sale of the securities or as they mature, the bank will miss an opportunity to increase net interest income as those lower yielding assets could be re-priced into higher yielding loans. I believe this scenario is at the crux of the concerns for many bank regulators. This scenario is a real risk to many banks and in many cases is not accurately measured by most interest rate risk programs. So what is the solution to this risk management problem? Certainly, we as bankers must continue to measure our risks, both in the investment portfolio as well as the entire balance sheet, using the tools available to us. With the availability of more sophisticated interest rate risk models, many bankers are beginning to model not only the traditional interest rate shock environments, but also scenarios that incorporate changes in the shape of the yield www.vabankers.org
curve and balance sheet changes. A typical analysis will likely assume a flattening of the yield curve as interest rates rise and a steepening of the yield cure as interest rates fall. Another step would be to model the change in net interest margin income under a rising rate environment that includes an outflow of short-term deposits into longer-term certificates of deposits. The key to any additional interest rate risk or portfolio analysis is to verify the validity of your assumptions. A strong partner with significant experience in this area is important. But perhaps more important is a clear understanding of your bank’s balance sheet and how it behaves under different interest rate and economic environments. The opinions expressed in this article are those of the author and do not necessarily represent the opinions of UMB or UMB Financial Corporation. This is provided for informational purposes only. UMB Bank, n.a. and UMB Financial Corporation are not liable for any errors, omissions, or misstatements.
ABOUT UMB BANK UMB Bank has been providing community banks throughout the country with solid, proven strategies for their investment portfolios and interest rate risk management procedures since 1928. They have a proven track record of supporting their clients through good times as well as tough times, and they have the capital, earnings and depth to support their services. UMB provides a full range of correspondent and investment services for their correspondent banks, including a state-of-the-art interest rate risk management system that can provide projections for virtually any interest rate and balance sheet scenario. Contact them today so they can assist you in developing a comprehensive approach to managing your bond portfolio and interest rate risk position … as well as building a partnership dedicated to your success.
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September/October 2011 | Virginia Banking 17
A Refresher on the Basics By David Mizelle Senior Operations Coordinator, Investors Title Insurance Company
s the economy continues to struggle, many of us in the finance and title industries encounter bankruptcy related problems far more frequently than in the boom years. A quick refresher on key concepts and review of higher-risk scenarios will help prepare you for the next time a bankruptcy-related file crosses your desk. When a person or organization files a bankruptcy petition, an injunction is entered that is referred to as the automatic stay. Once the automatic stay is in effect, all of the debtor’s property and debts become part of the bankruptcy estate. In order to understand how bankruptcy transactions work, it is best to visualize the bankruptcy estate as a completely separate entity which is under the control of the bankruptcy court. While involved in an active bankruptcy case, the debtor and the creditors are unable to take any action unless the bankruptcy court is clearly aware of what they intend to accomplish. The automatic stay is entered the instant the bankruptcy case is filed in order to give the debtor some breathing room and allow the bankruptcy court to address all debts and assets in an orderly manner. TYPES OF BANKRUPTCY The first designation of current bankruptcy chapters under Title 11 of the U.S. Code was established with the Bankruptcy Reform Act of 1978. With the addition of the family farmer reorganization Chapter 12 in 1986, and the addition of global business Chapter 15 in the 2005 overhaul, there are now chapters 7, 9, 11, 12, 13 and 15. The most commonly seen chapters in the title business are
chapters 7 (liquidation) and 13 (individual debt adjustment). Chapter 11 (reorganization) cases are common in commercial transactions. JUDGMENTS IN BANKRUPTCY The most frequently asked bankruptcy-related questions that title insurers receive involve judgments. One misunderstanding often perpetuated throughout the industry relates to the affect of a bankruptcy filing on judgment liens. Many people, understandably, presume that if someone goes through a bankruptcy then everything is wiped out and there is no possibility of a judgment that had been included in that bankruptcy case ever causing a problem again. That presumption, however, is incorrect. A bankruptcy discharge relieves the debtor from personal liability for the debt and associated obligation to pay, per section 524(a) of the Bankruptcy Code; however, if the security for the debt is duly perfected in the form of a judgment, prior to commencement of the bankruptcy case, then it becomes a lien on all of the debtor’s property. Until the lien is satisfied and released from the property, the creditor can enforce their lien by foreclosing. The U.S. Supreme Court, in a 1991 case, decided that a creditor’s right to foreclose on a lien survives the discharge in bankruptcy, because the discharge only absolved the personal liability of the debtor, but did not affect the status of the lien as an in rem encumbrance on the real estate. See Johnson v. Homestate Bank, 501 U.S. 78, 82-83, 111 S. Ct. 2150, 2153, 115 L. Ed. 2d 66, 73-74 (1991). As a result, bankruptcy can wipe out the personal liability for a judgment debt, but the lien against
David Mizelle is senior operations coordinator in the underwriting support unit for Investors Title Insurance Company. 18 Virginia Banking | September/October 2011
the property will remain unless additional action is taken during the bankruptcy case. See 11 U.S.C. 522(c)(2). That additional action typically comes in the form of an order avoiding judicial lien, pursuant to Title 11 Section 522(f) of the Bankruptcy Code. One important side note is that this order avoiding liens only becomes fully effective in a Chapter 12 or 13 case when the discharge order is entered. A lien avoided in a Chapter 12 or 13 case may not be removed from title unless there has also been a discharge. There are occasions where the order avoiding liens is not necessary. For example, say a judgment is filed in January 2009, and the judgment debtor then files a Chapter 7 bankruptcy in October 2009. Later, in December 2010, the debtor purchases the subject property after the bankruptcy case is discharged and closed. In this case, the order avoiding liens would not be necessary because the subject property was purchased after the bankruptcy case had been discharged. A judgment filed before a bankruptcy and included in the bankruptcy case cannot be enforced on property that is purchased after the bankruptcy case is discharged and closed, regardless of whether or not an order avoiding lien had been entered. The judgment may survive the discharge with respect to the previously owned property but it would not follow the debtor and attach to subsequently purchased property. SALES, REFINANCES AND FORECLOSURES As discussed previously, when a person or company files bankruptcy, a separate bankruptcy estate is created under the control of the bankruptcy court. Regardless of the chapter involved, for a debtor to legitimately convey or encumber any real property while that property is considered to be a part of the bankruptcy estate, the title insurer will often need authorization from the bankruptcy court that approves the transaction, and that transfers the liens away from the subject property. When dealing with the sale of property during a bankruptcy case, the title insurer will typically need to be sure that the order entered by the court does two things. First, it must specifically approve the sale of the subject property. The terms www.vabankers.org
of the actual sale must be in strict compliance with the order. Second, the order must specifically provide that all liens affecting the subject property are released, with the debts being transferred to the proceeds of the sale. When dealing with a Chapter 11 or Chapter 13 case, depending on how the reorganization plan is structured, there may be alternatives to the “comfort order” approving the sale; however, this type of alternative is rarely encountered because competing liens may not be adequately addressed. If a transaction involves an old, unreleased mortgage that appears in the search, and parties to the transaction are claiming that the unreleased mortgage had been wiped out in a prior bankruptcy, then it is necessary to be certain that the mortgage was somehow released or satisfied through the bankruptcy proceedings. Proof will be required that the mortgage had been, in fact, released. Lastly, there is the case in which a secured mortgage lender is attempting to foreclose while the property is included in a pending bankruptcy case. For a creditor to contest a claim or attempt to collect
or foreclose on a debt during the pending bankruptcy case, that creditor must first obtain the express permission of the bankruptcy court. Failure to obtain that permission would leave the mortgage lender in an unfavorable position because their subsequent foreclosure would most likely be set aside or cancelled by the bankruptcy court. In this case, title insurers generally require receipt of a copy of the order entered by the bankruptcy court which grants the creditor relief from the automatic stay, thus allowing the creditor to foreclose. An order abandoning the property should not be considered as a satisfactory substitute for the order granting relief from the automatic stay. Real estate is one of the largest investments individuals make, and it is also a substantial asset for many organizations. When revenues falter and bankruptcy filings ensue, the two worlds of real estate finance and bankruptcy will inevitably cross paths. As a result, it is important for all of us in the lending and title industries to be cognizant of the common problems that may arise when dealing with bankruptcy.
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September/October 2011 | Virginia Banking 19
New Associate Members
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PO Box 171 Haymarket, VA 20168 Phone: (703) 753-8072 Fax: (703) 743-9116 Website: www.dcmi-midatlantic.com CONTACT:VALERIE RICCARDI Principal Email: email@example.com DCMI Mid-Atlantic Inc. is a comprehensive real estate construction due diligence firm that develops, administers and manages construction projects for lending institutions and private real estate investors. DCMI offers specialized consulting, property condition surveys, cost analysis, progress monitoring inspections and environmental site assessments.
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FBR CAPITAL MARKETS CORPORATION 1001 Nineteenth Street North Arlington, VA 22209 Phone: (703) 312-9506 Website: www.fbr.com CONTACT: KENT CARSTATER Managing Director Email: email@example.com FBR Capital Markets Corporation is a leading investment bank with one of the strongest equities distribution capabilities in the securities industry. We are a full service firm offering banking (capital markets and mergers and acquisitions), advisory, trading and research. 20 Virginia Banking | September/October 2011
INVESTMENT & TRUST SERVICES
LEXINGTON ADVISORS LLC 37 Lexington Road Richmond, VA 23226 Phone: 804/402-6719 CONTACT: JUDSON WILLIAMS, President Email: firstname.lastname@example.org Providing customized investment management to high-net-worth individuals.
BUCKLEYSANDLER LLP 1250 24th Street, NW, Suite 700 Washington, DC 20037 Phone: (202) 461-2961 Fax: (202) 349-8080 Website: www.buckleysandler.com CONTACT: EZRA CRAWFORD Director of Marketing Email: email@example.com BuckleySandler is a leading law firm serving the financial services industry with deep experience counseling banks, mortgage lenders and servicers, credit card companies, insurance companies, and other financial services companies. With over 120 lawyers in Washington D.C., Los Angeles and New York, BuckleySandler provides best-inclass legal counsel to meet the challenges of its financial services industry across the full-range of government enforcement actions, complex and class action litigation and transactional, regulatory and public policy issues.
SANDS ANDERSON PC PO Box 2009 Christianburg, VA 24068 Phone: (540) 260-9011 Fax: (540) 260-0022 Website: www.sandsanderson.com CONTACT: REID BROUGHTON Counsel Email: firstname.lastname@example.org Full-service regional law firm.
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210 Interstate North Pkwy, Suite 400 Atlanta, GA 30339 Phone: (770) 690-8400 Fax: (770) 690-8240 Web Address: www.qbefirst.com CONTACT: DEANNA LEWIS Creative & Communications Specialist Email: firstname.lastname@example.org QBE FIRST offers more options for your tax servicing and data needs than ever before, all based on the industry’s most advanced tax servicing platform, FIRST Property Tax System. Total Escrow Solutions is a collection of services that empowers lenders to manage escrow accounts more efficiently and effectively.
SUMMIT TITLE GROUP, INC. 4101 Chain Bridge Road, Suite 303 Fairfax, VA 22030 Phone: (703) 867-3205 Fax: (703) 830-0519 CONTACT: PAUL W. FISH Vice President Email: email@example.com Summit Title Group, Inc. is a full service title examination company, serving the Northern Virginia area since 1989.
VHDA 601 S. Belvidere Street Richmond, VA 23220 Phone: (804) 343-5507 Website: www.vhda.com CONTACT: BOB HALLORAN Marketing Director Email: firstname.lastname@example.org VHDA, created by the commonwealth of Virginia in 1972, helps Virginians attain quality, affordable housing. They offer mortgages for first-time homebuyers and developers of quality rental housing. They also teach free homeownership classes, provide banks mortgage loan servicing solutions, and help people with disabilities and the elderly make their homes more livable.
Shirtboy.com is a supplier of custom imprinted apparel and promotional products. www.vabankers.org
Flood Insurance Inquiries for FDIC Ombudsman
ankers have recently directed questions regarding flood insurance to the FDIC Office of the Ombudsman. The prime resource for flood insurance information is the Federal Emergency Management Agency (FEMA), which manages the National Flood Insurance Program. FEMA provides an informative Flood Insurance Manual, which was just updated with changes effective May 1, 2011. The manual is available on the FEMA website: www.fema.gov/pdf/nfip/manual201105/index.pdf. The FDIC provided regulatory guidance on federal flood insurance requirements in Financial Institutions Letter FIL 81-2001 and issued FIL 42-2009 to provide access to interagency questions and answers on flood insurance. Both financial institution letters are available on the FDIC website: www.fdic.gov/news/news/financial. Local FDIC examiners and FDIC regional office staff are available to answer questions and provide clarification. If you do not know whom to contact, the FDIC Office of the Ombudsman can provide referrals to subject matter experts within the FDIC. If you desire an independent, neutral or confidential resource, FDIC Ombudsman can research and provide answers to questions about flood insurance or about any FDIC policies or procedures. Concerns expressed and questions asked of FDIC Ombudsmen are confidential unless you provide express permission to share the information beyond the Office of the Ombudsman. If you are having difficulties with the FDIC, the FDIC’s Office of the Ombudsman may be of assistance. The FDIC Office of the Ombudsman can help find a resolution to your problem by listening, clarifying the issues, and working with you and FDIC staff to reach an acceptable solution. The Office of the Ombudsman cannot make or overturn supervisory decisions. While FDIC Ombudsmen are neutral and do not take sides, they do advocate for fair process. www.vabankers.org
Feel free to contact FDIC Regional Ombudsman Linda Beavers for the Atlanta Region at (678) 916-2385. Or you may call the Office of the Ombudsman staff in Washington, D.C. at 877 ASK-FDIC (choose Ombudsman option).
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September/October 2011 | Virginia Banking 21
Bankers on the
Benchmark Community Bank Tabitha Poore, Assistant Vice President and Accounting Officer Cardinal Bank Tahiya Kettles, Assistant Vice Manager Highlands Union Bank Bryan Booher, Senior Vice President and Senior Lending Officer Brenda Williams, Vice President and Branch Manager National Bankshares, Inc. Shelby M. Evans, Vice President of Audit and Compliance
StellarOne Bank Justin Barnes, Manager, Business Banking Relationship Department Rob Furrow, Mortgage Loan Originator Michele Garletts, Financial Center Manager Jeffrey B. Hassler, Asset Management Relationship Manager,Wealth Management Division Michelle Taylor Ruebush, Financial Center Manager
Village Bank Mortgage Corporation Joe Dunn, Vice President and Manager, Construction-Permanent Lending Department Tom Pinczes, Senior Mortgage Banker, Construction-Permanent Lending Department Virginia Commerce Bank Dale Dwaileebe, Network Security Officer
Village Bank Kate Wagner, Vice President of Commercial Lending
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Virginia Bankers School of Bank Management 2011 Summer Session; Flood Insurance Inquiries for FDIC Ombudsman; banks search for higher yield;...