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This opinion was issued in the first quarter of 1999.
The lending test under 209 CMR 46.22(1), evaluates an institution's record of helping to meet the credit needs of its assessment area(s) through its lending activities by considering an institution's home mortgage, small business, small farm, and community developing lending. Pursuant to 209 CMR 46.22(2)(e) an institution's lending performance is evaluated pursuant to several criteria including the institution's use of innovative or flexible lending practices in a safe and sound manner to address the credit needs of low- and moderate-income individuals or geographies. It is the position of the Division that it is possible for refinance mortgage loans made in conjunction with some type of foreclosure prevention counseling program targeted to low- and moderate-income individuals and geographies to be considered innovative or flexible under the lending test of the Commonwealth's Community Reinvestment Act. In making such determination, the Division must consider the degree to which such lending programs are not routinely provided by other lenders. These loans would not be considered if they are done on an unsafe or unsound basis or if the program results in disparate treatment. These loans would also not be considered if they triggered the high rate, high fee disclosure provisions of 209 CMR 32.32 in the Commonwealth's Truth-in-Lending regulations.