[House Hearing, 108 Congress]
[From the U.S. Government Publishing Office]
SUBPRIME LENDING: DEFINING
THE MARKET AND ITS CUSTOMERS
=======================================================================
JOINT HEARING
BEFORE THE
SUBCOMMITTEE ON
HOUSING AND COMMUNITY OPPORTUNITY
AND THE
SUBCOMMITTEE ON
FINANCIAL INSTITUTIONS AND CONSUMER CREDIT
OF THE
COMMITTEE ON FINANCIAL SERVICES
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED EIGHTH CONGRESS
SECOND SESSION
__________
MARCH 30, 2004
__________
Printed for the use of the Committee on Financial Services
Serial No. 108-76
U.S. GOVERNMENT PRINTING OFFICE
94-689 WASHINGTON : 2004
_________________________________________________________________
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HOUSE COMMITTEE ON FINANCIAL SERVICES
MICHAEL G. OXLEY, Ohio, Chairman
JAMES A. LEACH, Iowa BARNEY FRANK, Massachusetts
DOUG BEREUTER, Nebraska PAUL E. KANJORSKI, Pennsylvania
RICHARD H. BAKER, Louisiana MAXINE WATERS, California
SPENCER BACHUS, Alabama CAROLYN B. MALONEY, New York
MICHAEL N. CASTLE, Delaware LUIS V. GUTIERREZ, Illinois
PETER T. KING, New York NYDIA M. VELAZQUEZ, New York
EDWARD R. ROYCE, California MELVIN L. WATT, North Carolina
FRANK D. LUCAS, Oklahoma GARY L. ACKERMAN, New York
ROBERT W. NEY, Ohio DARLENE HOOLEY, Oregon
SUE W. KELLY, New York, Vice Chair JULIA CARSON, Indiana
RON PAUL, Texas BRAD SHERMAN, California
PAUL E. GILLMOR, Ohio GREGORY W. MEEKS, New York
JIM RYUN, Kansas BARBARA LEE, California
STEVEN C. LaTOURETTE, Ohio JAY INSLEE, Washington
DONALD A. MANZULLO, Illinois DENNIS MOORE, Kansas
WALTER B. JONES, Jr., North MICHAEL E. CAPUANO, Massachusetts
Carolina HAROLD E. FORD, Jr., Tennessee
DOUG OSE, California RUBEN HINOJOSA, Texas
JUDY BIGGERT, Illinois KEN LUCAS, Kentucky
MARK GREEN, Wisconsin JOSEPH CROWLEY, New York
PATRICK J. TOOMEY, Pennsylvania WM. LACY CLAY, Missouri
CHRISTOPHER SHAYS, Connecticut STEVE ISRAEL, New York
JOHN B. SHADEGG, Arizona MIKE ROSS, Arkansas
VITO FOSSELLA, New York CAROLYN McCARTHY, New York
GARY G. MILLER, California JOE BACA, California
MELISSA A. HART, Pennsylvania JIM MATHESON, Utah
SHELLEY MOORE CAPITO, West Virginia STEPHEN F. LYNCH, Massachusetts
PATRICK J. TIBERI, Ohio BRAD MILLER, North Carolina
MARK R. KENNEDY, Minnesota RAHM EMANUEL, Illinois
TOM FEENEY, Florida DAVID SCOTT, Georgia
JEB HENSARLING, Texas ARTUR DAVIS, Alabama
SCOTT GARRETT, New Jersey CHRIS BELL, Texas
TIM MURPHY, Pennsylvania
GINNY BROWN-WAITE, Florida BERNARD SANDERS, Vermont
J. GRESHAM BARRETT, South Carolina
KATHERINE HARRIS, Florida
RICK RENZI, Arizona
Robert U. Foster, III, Staff Director
Subcommittee on Housing and Community Opportunity
ROBERT W. NEY, Ohio, Chairman
MARK GREEN, Wisconsin, Vice MAXINE WATERS, California
Chairman NYDIA M. VELAZQUEZ, New York
DOUG BEREUTER, Nebraska JULIA CARSON, Indiana
RICHARD H. BAKER, Louisiana BARBARA LEE, California
PETER T. KING, New York MICHAEL E. CAPUANO, Massachusetts
WALTER B. JONES, Jr., North BERNARD SANDERS, Vermont
Carolina MELVIN L. WATT, North Carolina
DOUG OSE, California WM. LACY CLAY, Missouri
PATRICK J. TOOMEY, Pennsylvania STEPHEN F. LYNCH, Massachusetts
CHRISTOPHER SHAYS, Connecticut BRAD MILLER, North Carolina
GARY G. MILLER, California DAVID SCOTT, Georgia
MELISSA A. HART, Pennsylvania ARTUR DAVIS, Alabama
PATRICK J. TIBERI, Ohio
KATHERINE HARRIS, Florida
RICK RENZI, Arizona
Subcommittee on Financial Institutions and Consumer Credit
SPENCER BACHUS, Alabama, Chairman
STEVEN C. LaTOURETTE, Ohio, Vice BERNARD SANDERS, Vermont
Chairman CAROLYN B. MALONEY, New York
DOUG BEREUTER, Nebraska MELVIN L. WATT, North Carolina
RICHARD H. BAKER, Louisiana GARY L. ACKERMAN, New York
MICHAEL N. CASTLE, Delaware BRAD SHERMAN, California
EDWARD R. ROYCE, California GREGORY W. MEEKS, New York
FRANK D. LUCAS, Oklahoma LUIS V. GUTIERREZ, Illinois
SUE W. KELLY, New York DENNIS MOORE, Kansas
PAUL E. GILLMOR, Ohio PAUL E. KANJORSKI, Pennsylvania
JIM RYUN, Kansas MAXINE WATERS, California
WALTER B. JONES, Jr, North Carolina DARLENE HOOLEY, Oregon
JUDY BIGGERT, Illinois JULIA CARSON, Indiana
PATRICK J. TOOMEY, Pennsylvania HAROLD E. FORD, Jr., Tennessee
VITO FOSSELLA, New York RUBEN HINOJOSA, Texas
MELISSA A. HART, Pennsylvania KEN LUCAS, Kentucky
SHELLEY MOORE CAPITO, West Virginia JOSEPH CROWLEY, New York
PATRICK J. TIBERI, Ohio STEVE ISRAEL, New York
MARK R. KENNEDY, Minnesota MIKE ROSS, Arkansas
TOM FEENEY, Florida CAROLYN McCARTHY, New York
JEB HENSARLING, Texas ARTUR DAVIS, Alabama
SCOTT GARRETT, New Jersey JOE BACA, California
TIM MURPHY, Pennsylvania CHRIS BELL, Texas
GINNY BROWN-WAITE, Florida
J. GRESHAM BARRETT, South Carolina
RICK RENZI, Arizona
C O N T E N T S
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Page
Hearing held on:
March 30, 2004............................................... 1
Appendix:
March 30, 2004............................................... 95
WITNESSES
Tuesday, March 30, 2004
Bryce, Teresa, Vice President & General Counsel, Nexstar
Financial Corporation, on behalf of Mortgage Bankers
Association.................................................... 20
Butts, George, Program Director, ACORN Housing Corporation of
Pennsylvania, on behalf of Association for Community
Organizations for Reform Now................................... 24
Calomiris, Charles W., Henry Kaufman Professor of Financial
Institutions, Columbia University.............................. 70
Dana, William M., President and CEO, Central Bank of Kansas City,
on behalf of American Bankers Association...................... 22
Garcia, Norma, Senior Attorney, West Coast Regional Office of
Consumers Union................................................ 76
Samuels, Sandor E., Senior Managing Director and Chief Legal
Officer, Countrywide Financial Corp., on behalf of the Housing
Policy Council of the Financial Services Roundtable............ 18
Smith, Geoff, Project Director, Woodstock Institute.............. 78
Staten, Michael, Director, Credit Research Center, McDonough
School of Business, Georgetown University...................... 80
Stein, Eric, Senior Vice President, Center for Responsible
Lending of North Carolina...................................... 26
Theologides, Stergios, Executive Vice President, General Counsel
and Secretary, New Century Financial Corporation, on behalf of
Coalition for Fair and Affordable Lending...................... 28
Yezer, Anthony M., Professor, Department of Economics, George
Washington University.......................................... 73
APPENDIX
Prepared statements:
Oxley, Hon. Michael G........................................ 96
Bachus, Hon. Spencer......................................... 98
Gillmor, Hon. Paul E......................................... 101
Gutierrez, Hon. Luis V....................................... 103
Hinojosa, Hon. Ruben......................................... 105
Sanders, Hon. Bernard........................................ 106
Bryce, Teresa A.............................................. 109
Butts, George................................................ 124
Calomiris, Charles W......................................... 134
Dana, William M.............................................. 141
Garcia, Norma................................................ 150
Samuels, Sandy............................................... 157
Staten, Michael.............................................. 174
Stein, Eric.................................................. 190
Smith, Geoff................................................. 209
Theologides, Stergios........................................ 222
Yezer, Anthony M............................................. 267
Additional Material Submitted for the Record
Watt, Hon. Melvin L.:
The Impact of North Carolina's Anti-Predatory Lending Law: A
Descriptive Assessment..................................... 273
Yezer, Anthony M.:
Do Predatory Lending Laws Influence Mortgage Lending?........ 312
Regulation of Subprime Mortgage Products: An Analysis of
North Carolina's Predatory Lending Law..................... 340
Consumer Mortgage Coalition, prepared statement.................. 368
SUBPRIME LENDING: DEFINING
THE MARKET AND ITS CUSTOMERS
----------
Tuesday, March 30, 2004
U.S. House of Representatives,
Subcommittees on Financial Institutions and
Consumer Credit,
And Housing and Community Opportunity
Committee on Financial Services,
Washington, D.C.
The subcommittees met, pursuant to call, at 10:08 a.m., in
Room 2128, Rayburn House Office Building, Hon. Robert Ney
[chairman of the Housing and Community Opportunity
subcommittee] presiding.
Present: Representatives Baker, Bachus, Royce, Lucas of
Oklahoma, Ney, Ose, Miller of California, Tiberi, Kennedy,
Feeney, Hensarling, Garrett, Kanjorski, Waters, Sanders,
Maloney, Velaquez, Watt, Carson, Sherman, Lee, Moore, Hinojosa,
Lucas of Kentucky, Crowley, Clay, McCarthy, Baca, Miller of
North Carolina, Scott, and Davis.
Chairman Ney. [Presiding.] The Housing Subcommittee and
Financial Institutions Subcommittee hearing on subprime lending
will come to order.
I want to also thank everyone for being here today to
discuss what I think is an extremely important issue in the
United States: subprime lending. It is obviously not without
controversy, but it is an issue I believe that absolutely has
to be addressed.
And I want to also especially thank, my good friend,
Chairman Bachus, for taking the time from his busy schedule to
also chair this hearing with me.
Spence has been a real leader on consumer credit issues,
working diligently to pass FCRA, which I think some people had
some bets would never happen.
I bet on you and made some money on you, so I am just happy
with that.
And he passed FCRA last year and he is now working on
predatory lending. And also want to welcome all the members
from both sides of the aisle.
The purpose of this hearing is to look at the subprime
lending market in the United States. Over the past decade, we
have seen the number of people receiving subprime loans
increase dramatically.
What we do not know is what this trend means for consumers.
This committee has not looked at whether the increase in use of
subprime loans means that consumers are paying more for credit
or if consumers, who had previously not been eligible for
credit, are now getting access to the mortgage market.
And I think we need to determine that.
Furthermore, we have only begun to look at the implications
for consumers if subprime lending is restricted by onerous
State and local predatory lending laws or a hodge-podge of laws
across the United States.
I believe that in order to truly gauge the effect of
predatory lending laws at the State and local levels and in
order to truly be able to assess the need for a national
standard for mortgage lending, Congress first has to understand
the subprime marketplace in order to make decisions.
Our two panels of witnesses today represent a good cross-
section of the lending community, academics and consumer
groups.
I think with all of them we will be able to do a good job
of sharing a picture of who gets subprime loans, what those
loans cost and most importantly, how important are subprime
loans in helping consumers either obtain credit for the first
time or reenter the credit market after previous problems that
they have encountered.
And I know that everybody here has heard stories about
State and local predatory lending laws cutting off credit for
those who need it most. I look forward to hearing those stories
brought out in our hearing today and talked about.
Again, I want to thank Chairman Bachus and all of the
members from both sides of the aisle of this committee. And I
want to thank the witnesses for being here.
Gentleman from Pennsylvania?
Mr. Kanjorski. Thank you, Mr. Chairman. I think that this
is a hearing that we have all looked forward to over the
months.
I have had the occasion to direct my attention to subprime
lending over the last year and I think that from this testimony
today I am trying to extract what I think appears to me to find
a market that has been underserved, but particularly is in a
destabilized condition because of the State variances in the
legislation.
And I hope that in the examination today we are going to
receive evidence that will further encourage the committee to
go forward with examining a national standard, recognizing that
we want to stop the violations that occur and the abuses that
occur.
But on the other hand, provide funding available with those
that are best served and need the subprime market.
I particularly am aware of the fact that we have today in
private bankruptcies more than 1.7 million individuals and
under normal procedures it would seem to me many of those, or
most of those individuals would not be able to get normal,
conventional financing at normal rates.
So, in order to reconstruct their financial positions and
to gain the benefits of homeownership again; many of those
individuals have to go through the subprime market.
On the other hand, we have all heard the ugly stories
across the country that are classified as predatory lending.
And it seems to me that the responsibility of this
committee and the Congress to examine whether in fact these
stories have any merit, if they do, how we can correct them.
And on the hand, provide for this new market that is occurring.
I understand that the market in 1994 was only about $9
billion; today it exceeds $200 billion, obviously, a sufficient
amount to warrant the examination of this Congress.
So, once again, I would like to thank you, Mr. Chairman and
Mr. Bachus, for putting together this hearing and hopefully it
will help us to go forward in a bi-partisan effort to provide
some needed solutions to the problems that exist.
Thank you.
Chairman Ney. Thank you.
Chairman Bachus?
Mr. Bachus. Chairman Ney, I want to commend you on your
leadership on this issue and as well, Mr. Lucas and Mr.
Kanjorski.
There are several other members of our committee that have
done a lot of work and proposed legislation in this field.
I want to commend Congressman David Scott for his work on
H.R. 1864, the Prevention of Predatory Lending through
Education Act and Congressman Mel Watt and Congressman Brad
Miller, who recently introduced H.R. 3974 the Prohibit
Predatory Lending Act of 2004.
I look forward to working with Congressman Ney, Congressman
Kanjorski, who has proposed legislation and those others
working on legislation: Congressman Lucas, Scott, Watt, Miller
and all my other colleagues as we continue to look at this,
what is sometimes a complex issue.
I will just basically hit four points here this morning.
First of all, there is a confusion between the word
predatory lending and subprime lending. Subprime lending is a
very legitimate form of financing for housing, home
improvements, things of that nature.
Many Americans now own their homes because they have been
able to get a subprime mortgage. This is a good thing if it is
not accompanied by abusive lending practices.
In fact, many homeowners would be shut out of the market
because of either past bad credit history or lack of credit
history; perhaps a bankruptcy and they have no choice other
than subprime lending.
And these commercialized mortgage loans work very well for
them.
We probably have a responsibility, and I think Mr.
Kanjorski mentioned that we have basically the one figure: in
1994 there were $34 billion in subprime mortgages, in 2002 the
last year we have total results, $213 billion, so you have had
an astronomic increase in subprime lending.
And the vast majority of those loans are not in default.
However, as I said earlier, with any responsible lending
industry, there are those who are bad actors and their abusive
lending practices. And I think most all of us have had to go
through the litany of some of these practices.
I will simply say that the timing of this hearing, I don't
think, could be better because we have had many States and
localities that had responded to these abusive lending
practices with legislation.
This legislation, however, only covers the OTS and the OCC.
Their rules and regulations, first of all, only cover those
institutions which they regulate.
It does not cover really, the majority of institutions
which makes up prime lending loans.
And so, we have an unbalanced system of regulation here.
The other thing you have, as obviously, anyone on this
committee knows the controversy of surrounding the OCC and the
OTS preempting a part, and not the entire subprime lending
field, but just a part of it: singling out a part of it because
they only regulate a part of it.
There is concern that the OCC and the OTS might not
adequately regulate and address these abusive practices.
And I can note, by looking at our first panel, we are going
to have a wide diversity of views on this. I think it is the
first time that we have had ACORN seated at the table as
opposed to outside in the hall.
But it is certainly a much quieter hearing with Mr. Butts,
with you at the table. And we look forward to hearing from you
and from all our other panelists.
But Mr. Ney, in conclusion, as I have told people in
private meetings and otherwise, I think on our side, you are
going to the lead committee person on this issue and I think
you have a challenging job ahead of you.
I yield back the balance of my time.
[The prepared statement of Hon. Spencer Bachus can be found
on page 98 in the appendix.]
Chairman Ney. I want to thank you.
Ranking member?
Ms. Waters. Thank you very much, Mr. Chairman, for
scheduling this hearing to consider the many important issues
raised by subprime lending.
While there are many topics that need to be covered in
today's hearing, I hope that our witnesses will direct their
testimony particularly to the tremendous harms to minorities,
to the elderly and to low and moderate income borrowers that
stem from the abusive practices known as predatory lending and
to the types of remedies that are required to prevent such
lending.
The amount you pay for a loan should not vary depending on
where you live or what you look like.
I also hope that our witnesses will address the extent of
the correlation between subprime loan rates and foreclosures.
While not all subprime loans are predatory, predatory
lending is concentrated in the subprime loan market. Predatory
lending preys upon poor and minority neighborhoods, where the
best loans are rarely available: neighborhoods where the number
of subprime loan outlets usually vastly exceed the number of
banks available.
Meaningful access to low-cost products depends on branch
access and presence.
Household Beneficial Corporation has six branches serving
upper income clients in California, while at the same time it
has 177 subprime Household Finance and Beneficial branches that
offer higher cost products to California's diverse population.
No bank should have fewer branches than its subprime
affiliate.
Predatory lending often results in home foreclosures and in
borrowers losing their equity. While housing counseling and
better education are valuable and important consumer
protections there is no way that counseling and education alone
can prevent predatory lending.
Unfortunately, there are still unscrupulous lenders in the
market who will take advantage of consumers' lack of
understanding, of complicated mortgage transactions and use
aggressive sales pressure techniques to market loan products
that are harmful to the consumer.
Marketing a subprime loan tends to focus on specific
neighborhoods, often through door-to-door sales or repeated
telephone solicitations.
Surveys of low-income, subprime borrowers indicate that a
large percentage of borrowers had not sought out the subprime
lender and many were not even seeking a mortgage loan, but were
contacted by lenders, brokers or contractors and persuaded to
take out a home repair or home equity loan.
While there clearly is a place for responsible subprime
loans where a higher interest rate is used to address the
enhanced risk posed by borrowers with past credit problems,
there are far too many subprime loans that contain abusive
terms or conditions.
There are far too many loans with rates and fees that are
much higher than can be reasonably justified by the borrower's
credit records.
Many borrowers who may qualify for prime mortgage credit
are paying higher costs for subprime loans. Freddie Mac has
estimated that between 10 percent and 35 percent of AA-minus
subprime borrowers actually qualified for prime rates, but
received and were paying for more expensive loans.
AARP has found that 11 percent of older borrowers with
credit scores that qualify for prime credit owe more expensive
subprime mortgages. Franklin Raines, the chairman of Fannie
Mae, has estimated that perhaps as many as half of those
receiving subprime loans could have qualified for a loan on
better terms.
There are simply far too many borrowers who could have
qualified for prime loans who are receiving subprime loans
because they were steered to subprime products. And because
they lack the knowledge and sophistication and the bargaining
power to insist on and obtain better terms.
Mr. Chairman, when it comes to predatory lending it is
simply not acceptable to say that the borrower should have read
and understood all of the terms in the complicated loan
documents that were given to him.
In my view, this is an area where the doctrine of quote,
let the buyer beware, quote-unquote, can never be good enough.
Financing of excessive fees, charging higher interest rates
than a borrower's credit warrants, larger pre-payment
penalties, refinancing without financial benefits, hidden
variable interest rates, loans with extremely loans-to-value
ratios that result in negative amortization from day one.
These are just some of the outrageous burdens on consumers
as a result of predatory lending.
Then there is the disgraceful practice of sending live
checks to consumers to entice them to address their immediate
financial needs without regard to the costs imposed or the
mortgage terms, including balloon payments, negative
amortization and pre-payment penalties that appear as options
to reduce the interest rate on prime loans are routinely
inserted and higher rate subprime mortgages, sometimes without
the knowledge of the borrower.
Even when subprime loans do not involve deceptive or
abusive practices they tend to expose borrowers to higher risk
than conventional prime loans because of the higher financial
burden they impose.
In October 2003, ACORN released a report entitled ``The
Great Divide: Home Purchase Mortgage Lending'' nationally and
in 115 metropolitan areas.
The ACORN report confirms that minority applicants for
conventional loans are rejected significantly more often than
whites, and the disparity has grown over time, with rejection
ratios in 2002 higher than 2001 and higher than they were 5
years ago.
Minorities of all incomes are rejected more often than
whites of the same income for conventional purpose loans and
the disparity increases as the income level increases.
Minorities with higher incomes are denied more often than
whites with lower income.
Mr. Chairman, I guess some of us have been singing this
song for a long time and frankly, I almost did not come today
because it seems that I have doing this over and over for so
long now and I don't know where it is going to take us.
But I think in the final analysis, if we don't get some
relief from these kinds of practices we are going to have to
employ other more direct responses to those lenders who are
involved in subprime predatory lending.
Again, I recognize that all subprime lending isn't
predatory, but too much of it is and we are just going to have
to rally and protest and bring people to some of these
institutions in ways that banks and some of our mortgage
companies would not like to see. I don't know what else to do.
We talk about it all the time, but nothing changes.
Chairman Ney. I appreciate you being here and your input
and hopefully we will get something, I don't want to say fair
and balanced, that pertains to Fox News, but hopefully we will
get something that is decent for consumers and still allows the
market to flow.
Thank you.
Chairman Baker?
Mr. Baker. Thank you, Mr. Chairman. I will be brief. I
appreciate your courtesy in calling this hearing on this
important matter.
Certainly doing whatever we can to facilitate extension of
credit to all interested parties is an admirable goal and
should be pursued with every ability we can muster. At the same
time, unreasonable constraints on common sense business
practice do not make sense not only for the business person,
but for the consumer as well.
Denying someone the opportunity for homeownership simply
because the rate or the terms of repayment are different from
an AAA-credit rated individual doesn't make sense.
I would like to commend those in the industry who have
spent considerable time and effort on trying to identify first
what constitutes predatory action, not already prohibited by
either State or federal laws.
Secondly, on one's finding, whatever that might be,
eliminating that loan from their portfolio and taking action
not to allow those activities in the course of ordinary
business practice be incorporated into the portfolio of these
organizations.
I do believe there is a need to continue to improve. I do
believe that there is evidence that there are individuals who
take advantage of the uninformed consumer.
I do believe that the current body of law is sufficient to
catch the bulk of the adverse practitioners, but we should take
additional steps to ferret out the very last and most offensive
of these practices and open up the access to the lines of
credit for homeownership for everyone.
And to that end, Mr. Chairman, I will strongly support your
efforts in this regard.
I yield back.
Chairman Ney. I want to thank Chairman Baker.
Further opening statements?
Gentlelady?
Mrs. Maloney. First, I would like to thank both of the
chairs for calling this and we continue to make a practice on
this committee of praising the virtues of homeownership as a
wealth creator for our constituents and the success represented
by near-70 percent homeownership in this country.
These are incredible successes that demonstrate the
competitiveness of our housing industry, which is constantly
evolving and coming up with new products that put more people
in their homes.
Subprime lending as an innovation deserves some of the
credit for the vibrancy of these housing markets.
It is a great thing that people with damaged or limited
credit histories have a much better chance of buying a home
today because of credit innovations and the competitiveness of
the subprime market.
At the same time, the explosion of subprime has coincided
with increased opportunities to fleece borrowers and a rise in
foreclosure rates and predatory lending.
While it is perfectly acceptable for lenders to charge
higher prices to riskier borrowers, the fact that a
disproportionate high number of subprime loans go to
minorities, the poor and the elderly, demand that this market
receive very strict oversight.
With this in mind, one of my biggest concerns is that
subprime loans only go to those borrowers who need them and
that more credit-worthy borrowers be given the opportunity to
receive prime loans when appropriate.
I would like to hear from the panel today what can be done,
in their view, to attack this problem.
Is it simply a matter of education or are specific policies
needed on the books at lenders that have both subprime and
prime units, mandating that borrowers be referred to the prime
units if they qualify?
Besides ensuring that subprime loans go to those that
qualify for them, I have a major concern with the question of
assigning liability.
I strongly believe that borrowers who are victims of
predatory lending deserve to be made whole; it is not their
fault that the predatory lender who sold them their loan no
longer has it on his books and doesn't have any money.
At the same time, legal certainties for the secondary
market is extremely important.
The secondary market is really the goose that laid the
golden egg in regard to the U.S. mortgage markets. The last
thing we want is to scare away investors and home mortgages
which provide the liquidity that keeps the whole system funded.
Yesterday a report came out from the bond association on
this question and one of the main points of their white paper
was that they prefer a national standard which they say would
be more efficient than the current 40 different standards they
face.
I am not personally sold that a national standard is
necessary, but I am sympathetic to the argument that the
secondary market should only be assigned liability for lending
violations that can be detected in a review of the regular loan
documents.
I must add, since this is also a housing hearing, the
really inappropriate funding levels of federal support for
public housing in America.
I yield back the balance of my time and I look forward to
the comments of the panel.
Chairman Ney. The time of the gentlelady has expired.
Further opening statements?
No further opening statements? Mr. Sherman?
Mr. Sherman. Thank you. I would like to thank the chairs
and the ranking members of the two subcommittees for holding
these important hearings.
As other speakers have indicated, this is a hugely
important part of our economy and it is important that we get a
balanced view because in our work as individual members of
Congress, we naturally hear about the bad side of subprime
lending.
We hear about the predatory practices and we hear about the
situations where it was just bad luck, where somebody got a
loan that perhaps they should have gotten, but then something
happened and now they are in desperate straits.
We need to hear also the other side, the success stories of
people who were rejected for conventional lending and then got
a subprime loan to the benefit of their family or to finance a
business.
As we seek to protect consumers, we have to understand that
the best consumer protection is competition. That is what
drives prices down, that is what gives people better terms.
And that competition is imperiled by the idea of every
municipality in my state adopting their own laws about lending.
What that does is it will create a lender who specializes
in one municipality, to the exclusion of all others. And you
will log into ditech.com, having endured 500 annoying
commercials, only to find, ``Hey, you can't get the loan, you
have to go to that very banker that they vilify in their
commercials, who has a captive market in that municipality.
Now, it is true that computers allow subprime lenders to
deal with the complexity of, but there is a limit to how much
complexity you can deal with if every municipality adopts its
own, or even every state, has its own different set of laws
with draconian penalties when you violate the slightest one of
numerous requirements.
I should point out also, that as an old tax collector, I am
not sympathetic to those in your industry who make it easy for
somebody to come in and say, ``You know, I have a lot of
income, I just don't put it on my tax return.''
I would appreciate that one of the standards for giving
someone a loan is that it is based on the income that they
actually report to the agency represented by those of us here,
namely the federal government.
I want to think our Ranking Member Maxine Waters has
identified some of the bad practices that we need to look at.
But I want to disagree with her on just one small point: I
don't think it is bad for a lender to concentrate on subprime
lending or to specialize.
If it is good to be in that market and some company decides
to be exclusively in that market and all of their outlets in
our state are subprime lending facilities, that makes sense,
just as some other financial institution might specialize in
the other end of the market.
I know that a number of states have adopted confusing laws,
creating inefficiencies, allowed their municipalities to come
up with draconian penalties and confusing statutes and I want
to thank those states and municipalities, because what they
have done is they have inspired industry----
Chairman Ney. Time has expired.
Mr. Sherman. If I could just continue----
Chairman Ney. Finish your statement surely. I just wanted
to----
Mr. Sherman.--because it is those actions, inefficient
actions, which have inspired industry to come to us and say you
want national standards and I assure you those national
standards should not be set at and will not be set at the
lowest common denominator. We will get effective consumer
protections for all the citizens of the country.
Thank you. I yield back.
Chairman Ney. Thank the gentleman.
Gentlelady?
Ms. Lee. Thank you, Mr. Chairman. I want to thank you and
Mr. Bachus and our Ranking Member Waters and Sanders for
convening this very important hearing on subprime lending. I
would also just like to welcome all of our witnesses today who
will discuss the costs and benefits of the subprime market.
The subprime market exists because it provides credit
access to borrowers who otherwise would not and could not
obtain loans. However, far too often, people in the subprime
market, particularly minorities and the elderly, are truly
victims of predatory lending.
These individuals are actively and purposely preyed upon by
lenders who know there is no true punishment or strong federal
mandate that will stop them from unjustly profiting off of our
most vulnerable communities.
So Mr. Chairman, we must begin out of this hearing, to stop
this growing trend and establish a base federal standard that
punishes bad actors and champions local and State ordinances
against predatory lenders.
And I am very proud to say that my hometown of Oakland,
California has passed a local ordinance against predatory
lending which will, hopefully, stop the growing trend that we
see in Northern California, of not only first-time predatory
home loans, but also more often the predatory refinanced loans.
So, I hope that we can work with everyone in the industry:
our consumer groups, members of the community, to truly educate
and protect people before, during and after the homeowner
process.
Of course, education starts with financial literacy,
housing and foreclosures counseling, and really good faith from
the lending community. So, I believe that we can work together
and create the protections and guidelines that will benefit
everyone.
So, today's hearing is a very good start. I hope the
dialogue will grow, but I also hope that we come to some
realistic approach to deal with the very bad actors that are
out there, some of which are subprime, some of which are not.
Thank you, Mr. Chairman and I yield the balance of my time.
Chairman Ney. Thank you.
Gentleman?
Mr. Hinojosa. Thank you Chairman Ney and Bachus. And I want
to also acknowledge Ranking Members Waters and Sanders.
I thank you for calling this very rare joint hearing of two
important subcommittees on the topic of particular concern to
me and to my constituents: subprime lending and predatory
lending.
I hope that this will be the first in a series of hearings
that you will hold on this subject in both subcommittees and
then the Full Committee. As many of you are aware, subprime
lending has increased abusive lending practices, particularly
aimed at vulnerable populations, such as the Hispanic
populations in my district.
These constituents do not qualify for prime loans and must
trust subprime lenders not to impose unnecessary fees or to
trap them into schemes where they end up losing their homes,
thereby, transforming a subprime lender into a predatory
lender.
I was concerned to read in Mr. Smith's testimony that a
study by ABT and Associates in Atlanta found that foreclosures
attributed to subprime lenders accounted for 36 of percent in
all foreclosures in predominantly minority neighborhoods in
1999. While their share of loan originations was between 26 and
31 percent in the preceding 3 years.
However, I understand that lenders need to maintain
appropriate capital levels and to weigh the risks of the loans
they make to lenders. The need exists for a subprime lending
market for individuals that pose more of a risk to the lending
institution.
However, subprime lending has yet to be defined and some
claim that it is impossible to define. If that is the case,
then I wonder if we are chasing our tails here today. Perhaps
we should wait until it is defined.
Regardless, legislation has been introduced on subprime
lending and predatory lending by my esteemed colleagues,
Congressman Ney and Lucas and Congressmen Miller and Watt. I
intend to review those proposals, carefully, prior to taking
any positions on the legislation. It is also my understanding
that our Ranking Member, Paul Kanjorski, is working on draft
legislation that will be available in 30 to 60 days on this
same subject.
My staff has already expressed to his staff my desire to
work with him on his legislation to ensure that it addresses
the needs of the Hispanic population, and other minority
populations in the United States, to ensure that our views are
protected under its clauses and provisions to every degree
possible.
My ultimate goal is to protect my constituents from
predatory lenders, while ensuring that they receive fair,
subprime loans if they do not qualify for the prime loans. I
have yet to review the preemption issue at any great length.
Mr. Chairman, I yield back the balance of my time.
Chairman Ney. Thank you.
Mr. Royce, gentleman from California?
Mr. Royce. Thank you, Mr. Chairman.
The title of today's hearing is Subprime Lending: Defining
the Market and its Customers. Personally, I have always been
surprised with a debate on non-prime lending.
What non-prime lending does is it prices risk, which is the
borrower's ability to repay. This is not a phenomenon reserved
solely for non-prime mortgages.
If we took a look at other examples in the U.S. bond
market, investors demand that State and municipal governments
pay a higher rate of interest than the U.S. government pays on
treasuries.
That does not mean that the investors are engaged in
predatory lending in that case, I would assume. What you are
actually doing is you were looking at the question of risk.
Banks and investors tend to charge start-up companies a
higher rate of interest on loans than they charge a Fortune 500
firm. Question is: ``Is this predatory?"
Insurance firms usually charge higher premiums on drivers
convicted of DWIs than on drivers who have perfect records. Is
this a predatory practice?
On balance, I think that non-prime lending has greatly
benefited millions of Americans and on balance, I think it has
helped our economy and I think we should keep that in mind as
we move forward with this debate.
And I thank you, Mr. Chairman.
Chairman Ney. I thank the gentleman.
Mr. Baca?
Mr. Baca. Thank you very much, Mr. Chairman and Ranking
Members Waters and Sanders for having this hearing.
First of all, let me thank the panelists for appearing here
today. I look forward to hearing your testimony. I look forward
to hearing, about the important issues that pertain to the
Hispanic and low-income communities: the issues of subprime
lending and predatory lending.
Today, there are over four million Hispanic homeowners
throughout the nation and more and more are becoming
homeowners, especially in my district.
The subprime market plays an important role in increasing
access to homeownership for Hispanics; especially those with
poor credit histories, subprime loans represent 20 percent of
home purchase loans to Hispanic versus 7.5 percent to white
borrowers.
Similarly, subprime loans represent 18 percent of the
mortgage refinancing loans to Hispanic versus 6.7 percent to
white borrowers. That is why predatory lending practices that
sometimes occur in the subprime lending industry are so
troubling.
Our committee and Congress must look at protecting all
consumers from such abusive lending practice.
That means helping consumers learn how to protect
themselves through effective financial literacy programs and
making substantive changes in HOEPA.
We must be careful to do so without adversely affecting the
ability of minorities and others to receive affordable credit.
Again, I look forward to hearing you testimony and learning
more about these important issues.
Thank you very much, Mr. Chairman and ranking members.
Chairman Ney. Thank you. Thank you.
Gentlelady from Indiana: Ms. Carson?
Ms. Carson of Indiana. Thank you very much, Mr. Chairman
and certainly all the conveners. This issue of predatory
lending has been around for a long time, we just haven't given
it any public hearings.
I am sure those of you who are in the mortgage business,
who have been around a long time remember the reprehensible
district in my district, Indianapolis, about 15 years ago where
a young man who was being foreclosed, who did not look like me,
did not live like me, who took on the mortgage lender and
walked the president down the street behind a gun for like
three hours, since they were taking his property.
And interestingly, the man who was doing the gun holding
aroused a lot of interest and support in the community for his
actions.
I don't believe that we can hold one entity responsible for
the problems that emanate from this whole issue. In my district
alone, Indianapolis, Indiana, ZIP Code 46201, has the highest
incidence of foreclosures in the nation in Indianapolis,
Indiana.
Indiana and Indianapolis, unfortunately, exhibit high rates
of foreclosures among homeowners. And I have convened several
meetings and was inspired to create a 1-800 number, which is
overwhelmed now: 1-800-888-7228.
And what I want that number to do before people sign their
names for any reason on anything, they call that number and
they get the help of a consumer counselor, and they also get
the help of legal services, if they are in the midst of being
foreclosed, or if they are being threatened with foreclosure,
because we have to protect the consumer.
And I also recommend that the lending institutions have got
to assume more responsibility before they approve these loans.
I know that you don't do it alone, necessarily, but it is
like the mathematical axiom: that the sum equals the whole of
its parts, and while you might have a lender that has a wealth
of integrity, that lender may be dependent on some appraiser,
who is just a fly by-night appraiser, who is going to escalate
the value of a home charged a bunch of money and before the
consumer realizes it, a big moving truck is being put out on
the street in front of their house that they did not send for.
You have title companies that has jumped into the business
now that are major culprits that perpetuate this problem
abound.
And I think as we look at this, we can't just look at
Countrywide or Irwin Mortgage or other companies that is in the
business of lending money, but we have got to look at the whole
equation, in terms of how do people end up in this kind of
predicament.
Do lenders rely solely on some appraiser that comes in and
tells them that a house is valued at so much money or not?
Do the lenders, and should the lenders, take some
responsibility before they write the check over in behalf of
the consumer and end up in a very precarious situation?
Mr. Chairman and the conveners, thank you very much for
your time and I will yield back.
Chairman Ney. Thank you.
Anyone else on this side?
Mr. Miller?
Mr. Miller of North Carolina. Thank you, Mr. Chairman.
For most Americans, the purchase of a home is the most
important investment they will ever make. For Americans living
in poverty or near-poverty, the purchase of a home is a huge
step into the middle class. The equity they build in their home
becomes the bulk of their life savings.
American homeowners borrow against the equity in their
home, their life savings, for a variety of reasons: for their
children's education, for unexpected medical expenses, for
retirement, for home repairs, for all the various rainy days
that all of us experience in life.
I am committed to protecting access to credit for American
consumers to buy homes and to borrow against the equity in
their home when they need to.
Yes, many lower income borrowers present a higher credit
risk to lenders. Yes, that risk could be reflected in interest
rates and lenders should make a fair profit from the credit
they extend to higher risk consumers.
But there has been a dramatic increase in unconscionable
practices that take advantage of the most vulnerable consumers
and take from them the equity in their home: their life
savings.
Consumers sign long documents, page after page of
indecipherable legalese, knowing only how much money they will
get at the closing and how much they will have to pay each
month.
What they don't know is that they paid exorbitant fees at
closing that came straight out of their life savings, straight
out of their equity in their home. And once they sign those
documents, it is gone forever.
Consumers learn that there is a balloon payment or that the
lender can call the loan requiring that it all be paid
immediately and they can't possibly make the payments.
They borrow again, losing still more equity, more of their
home's equity, or they lose their home to foreclosure.
And just as purchasing a home is a huge step into the
middle class, losing a home to foreclosure is a huge step back
into poverty.
The profit that lenders derive from those practices go well
beyond what is fair. But those unconscionable practices that
strip the home equity of vulnerable consumers are all perfectly
legal under federal law.
Mr. Watt and I have introduced legislation to provide
protections to all America's consumers that North Carolina
consumers now have under state law passed in 1999.
I am delighted to accept Mr. Bachus' invitation to work
with him; to work with Mr. Ney; to work with Mr. Kanjorski; to
work with Mr. Watt; to work with industry, with banks, mortgage
bankers and brokers, with consumer groups; with all of God's
children to try to achieve workable legislation to protect
vulnerable consumers from abusive lending practices and still
make credit available on fair terms.
I look forward to the testimony today.
Mr. Bachus. [Presiding.] I appreciate that Mr. Miller. And
I think it is our goal, all our goals should be here today, to
preserve this affordable lending, but to crack down on the
abusive practices.
Mr. Scott, did you have an opening statement?
Mr. Scott. Thank you very much, Mr. Chairman.
I want to thank Chairman Ney, Chairman Bachus and Ranking
Member Waters for holding this joint hearing with the financial
institutions subcommittee today regarding subprime lending. I
also want to thank the distinguished panel of witnesses today
for their testimony on this subject as well, for it is indeed,
a most important subject.
About half a typical family's wealth is in home equity, yet
many communities are clearly missing out on one of the basic
assets of wealth building.
I have heard from some representatives from the mortgage
industry that subprime lending provides homeowner opportunities
for many individuals who normally would not qualify for prime
loans.
I have also heard from consumer advocates that subprime
mortgage lending provides ample opportunity for amazing and
tragic predatory lending practices and gives incentives to
liberally approve loans to individuals who cannot afford a
loan.
I look forward to today's hearing to help identify the true
benefits of opening credit markets to more consumers, while
examining the unsavory lending practices and high default rates
that accompany the expansion of credit to at-risk communities.
Advocates from consumer advocates and subprime lenders
both, would like to see the creation of a national predatory
lending law. But what I want to know is, if such a law is
indeed necessary, and if so, how should we preempt state laws.
We must fight predatory lending without harming legitimate
businesses that offer mortgage services to consumers with less
than perfect credit histories.
As a former member of the Georgia State Senate, I can speak
of the impact that overly strong regulatory measures can have a
housing market. I was one of the first individuals at the State
level to put forth a predatory lending act in response to the
difficult problems we had with fleet finance coming into
Georgia and using our usury laws unfairly.
But 2 years ago, the Georgia Fair Lending Act had several
provisions, including assigning liability to secondary markets,
which caused financial companies to pull out of my State and
withdraw some lending products.
The Georgia General Assembly had to revisit that law last
year to prevent additional companies from leaving the State. In
an effort to stop unscrupulous lending practices that fair
lending act caused hardship to legitimate lenders.
While it is not a panacea, we must bring homebuyer
education directly to communities to help stop predatory
lending practice.
That is why I am pleased to have worked with Chairman Ney,
other members of this committee, Congresswoman Velazquez, to
introduce H.R. 3938, the Expanding Housing Opportunities
through Education and Counseling Act.
Several sections of H.R. 3938 are similar to the
legislation that I introduced last year.
H.R. 3938 will establish a housing counseling commission in
HUD and will create a real 1-800 toll-free number for consumers
to call to learn about loan policies and home owners' issues.
That bill will also provide grants to local home counseling
agencies and study predatory lending practices. No, it is not a
panacea, but education is the key.
If we can arm our most vulnerable populations with the
education information they need and put a 1-800 number out
there, so that they can have a lifeline to call and speak to a
human being on the other end of the line, we will go a long way
in helping to provide them with the ammunition to protect
themselves so that they can have a way to call a number before
they sign on the dotted line.
I look forward to hearing today's testimony to help address
the devastating impact caused by predatory lending practices.
And again, Mr. Chairman, I commend you and thank you for
recognizing me.
Mr. Bachus. Thank you.
And just for the record, Mr. Scott, you have 1865? Is that
not the correct number of the bill that you have now: the
Prevention of Predatory Lending through Education Act or is
3938?
Mr. Scott. It is 3938. What happened was we incorporated
some of the features, most of the features from my previous
legislation into that.
Mr. Bachus. Okay.
Mr. Scott. Chairman Ney was kind enough to oblige me and I
appreciate it.
Mr. Bachus. Have you, is 1865 still? Is that still pending,
too?
Mr. Scott. Yes.
Mr. Bachus. Okay. All right. Thank you.
Ms. Velazquez. Mr. Chairman?
Mr. Bachus. Are there----
Ms. Velazquez. Mr. Chairman?
Mr. Bachus. All right.
Without objection.
Thank you.
Are there other members who wish to make opening
statements? If not, we will proceed to our first panel.
First panel is made up of six individuals. First, from my
left is Sandy Samuels--and I understand that Mr. Sherman would
like to introduce Mr. Samuels.
Before he does, I would direct everyone's attention to Mr.
Samuels' testimony. I think it debunks several of the fictions
about who takes out a subprime loan and the demographics of
those borrowers. I think it is a very useful opening statement
in that regard. He goes into a lot of facts and figures about
who their customers are.
Mr. Sherman, I will introduce you at this time.
Mr. Sherman. Thank you, Mr. Chairman, for the opportunity
to introduce Sandy Samuels to the members of both
subcommittees.
Sandy joined Countrywide in 1990 and is Senior Managing
Director and Chief Legal Officer for Countrywide Financial
Corporation. In this capacity, he oversees the transactional,
regulatory and litigation affairs of Countrywide.
He holds an undergraduate degree from Princeton and far
more importantly, a law degree from UCLA.
He has roughly 20 years of experience dealing with the very
issues that these hearings address. I have known Sandy for many
years. He represents the largest financial institution based in
the Los Angeles area, which plays such an important role, not
only in the Los Angeles area in general, but the valley Las
Virgines area, in particular.
Sandy?
Let me just add. Sandy, I have read your testimony. I have
to rush off to a non-proliferation hearing.
Mr. Bachus. Now, if you introduce a witness, you have to
stay for their testimony.
Mr. Sherman. I will inform Chairman Hyde to delay the start
of the hearing on nuclear proliferation.
Mr. Bachus. Thank you.
Before you go, Mr. Samuels, let me introduce the rest of
the panel and then we will start with your testimony.
Our next panelist is Ms. Teresa Bryce; she is the vice
president and general counsel of Nexstar Financial Corporation
in St. Louis, Missouri. She heads the legal department for
Nexstar.
Prior to NexStar, she held a number of senior positions in
the legal divisions of various mortgage companies, including
Bank of America Mortgage, Bank of America Corporation; PNC
Mortgage Corporation of America and Prudential Home Mortgage
Company.
And you are testifying, Ms. Bryce, on behalf of the
Mortgage Bankers Association. So, we welcome you.
Our next panelist is William M. Dana, president and CEO of
Central Bank of Kansas City, testifying on behalf of the
American Banking Association. He serves on the ABA's community
banking counsel and on its communications staff counsel.
And I guess that is why you are here, communicating with us
today?
Mr. Dana has had varying degrees of experience in all
levels of community banking management for over 30 years. You
began your career as a teller and worked in every phase of
banking to his current position as CEO, which you have held for
the last 11 years, as I understand it.
Mr. Dana has been a featured speaker at various national
conventions on banking and community development. We look
forward to your testimony.
Mr. George Butts. Mr. Butts is program director of ACORN
Housing Corporation of Pennsylvania and is testifying on behalf
of the Association for Community Organization for Reform Now.
From 1991 to 2003 Mr. Butts served as president of the ACORN
Housing Corporation.
We welcome you, Mr. Butts.
Mr. Eric Stein, senior vice president for the Center for
Responsible Lending of North Carolina and that is an affiliate
of Self-Help. Mr. Stein holds a law degree from Yale Law School
and a B.A. from Williams College.
In addition, his work experience includes Fannie Mae's
office of Low and Moderate Income Housing and he works with
Congressman David Price for U.S. Fourth Circuit Court of
Appeals Judge Sam J. Irwin III.
Is that Senator Irwin's son? Okay. Good.
Self Help is a North Carolina-based non-profit community
development lender that includes a credit union and a loan
fund. Mr. Stein manages its home loan secondary market,
commercial lending and real estate development programs.
So we appreciate your testimony, as well as Mr. Butts.
And last Terry Theologides. He is executive vice president,
general counsel and secretary of New Century Financial
Corporation and is testifying on behalf of the Coalition for
Fair and Affordable Lending.
He is a frequent speaker on predatory lending prevention
and avoidance from the perspective of loan originators and
secondary market participants.
Received his law degree from Columbia University School of
Law; earned his Bachelor's degree from Princeton University.
Mr. Theologides runs the Compliance Legal and Fair Lending
functions at New Century which is the country's second largest
non-prime lender.
So, we welcome our panelists, obviously very knowledgeable
panelists. We look forward to you informing our committee about
the day-to-day practices of the subprime lending market.
Mr. Samuels, I am sorry, this is the first I have called
your first name, but if you will, Sandor, if you will open the
testimony.
STATEMENT OF SANDOR E. SAMUELS, SENIOR MANAGING DIRECTOR AND
CHIEF LEGAL OFFICER, COUNTRYWIDE, ON BEHALF OF THE HOUSING
POLICY COUNCIL OF THE FINANCIAL SERVICES ROUNDTABLE
Mr. Samuels. Good morning Chairman Bachus, Chairman Ney,
Ranking Members Waters and Sanders and members of the
subcommittees.
I am Sandy Samuels, Senior Managing Director and Chief
Legal Officer of Countrywide Financial Corporation.
If I seem a little nervous it is not just because this is
my first time testifying before a House committee, my 16-year-
old daughter is taking her driving test this morning. So I am a
little nervous about that.
We appreciate the opportunity to testify today on behalf of
the Financial Services Roundtable's Housing Policy Council. In
today's testimony we want to give the subcommittees a better
picture of the non-prime borrowing market served by Countrywide
and the member companies of the Housing Policy Council.
While the market knows us primarily as a prime lender,
Countrywide entered the non-prime lending market in 1996 as a
natural extension of our commitment to reach those outside of
mainstream mortgage markets.
Despite the industry's ongoing successes in expanding
access to prime loans, the fact remains that a large segment of
the borrowing public does not meet the eligibility criteria for
prime loans.
Two recent examples of actual Countrywide borrowers will
illustrate this. Earlier this year, Countrywide made a non-
prime loan to Mr. and Mrs. S. from Nicholasville, Kentucky, who
were struggling to make ends meet.
They had a high rate second mortgage at more than 14
percent. This and other consumer debts pushed their monthly
debt service to over 50 percent of their $3,000 monthly income.
Although the S's had an excellent credit score in excess of
700, the loan-to-value ratio necessary for them to consolidate
their first and second mortgages exceeded the guidelines for a
prime refinance loan.
Our non-prime affiliate, Full Spectrum Lending, was able to
make them a $94,000 loan at a loan-to-value ratio of 99
percent. The new loan had a 30-year fixed rate of 7 percent
with points and lender fees totaling $2,500, and lowered the
couple's monthly payments by more than $200.
Their monthly debt-to-income ratio is now a much more
manageable 43 percent. However, had Mr. and Mrs. S. lived in
North Carolina or New Jersey their loan would have been
considered a high cost loan and Countrywide, which does not
make high-cost loans, would not have offered it at those terms.
Our second example, Mr. C. from Clovis, California, had a
510 credit score and monthly mortgage and other debt payments
that exceeded 60 percent of the income from the tanning salon
he owned.
We helped Mr. C. consolidate his 7.75 fixed-rate mortgage,
his adjustable-rate second mortgage and his other debts into a
30-year fixed rate first mortgage at 6.875 percent with total
discount points and lender fees equal to 4 percent of the
$264,000 loan amount.
This loan lowered Mr. C's monthly payments by more than
$1550 and reduced his monthly debt ratio to a much more
manageable 43 percent of his income.
Mr. C's low credit score precluded any rate reduction
refinance or debt consolidation with a prime loan. Again both
New Jersey and North Carolina law would consider this a high
cost loan, and therefore, we would not have been able to make
it at these terms.
Let me share with you some of the broad demographics of
Countrywide's prime and non-prime first mortgage borrowers
based on our most recent three months of production through
February of 2004.
The average age of our non-prime borrower was 43, identical
to the average age for our prime customers; 6 percent of our
customers were over 60; 10 percent of our prime customers were
over 60. Not surprisingly, the average FICO score of our non-
prime borrowers was 608 compared to 715 for our prime
borrowers.
The average amount borrowed was virtually identical between
prime and non-prime customers: $179,000 for non-prime, $182,000
for prime.
Even the incomes between our prime and non-prime customers
are remarkably similar: $69,000 for non-prime compared to
$74,000 for our prime borrowers.
The average note rate on a non-prime loan was 7.12 percent
over the three-month period; the APR on our non-prime products
for the period was 7.83 percent compared to 5.44 percent on our
prime products.
As illustrated in the additional borrower profiles in my
written testimony, several elements, in addition to credit
scores, can move a borrower from prime to non-prime status
including the borrower's ability or willingness to document
income, stability of borrower's income, lack of financial
reserves, loan-to-value ratio on the mortgage property and the
characteristics of the property that affect its collateral
value.
Non-prime products give borrowers more choices and make
credit more readily available because we, and other lenders,
can price loans according to the level of risk.
Before the advent of risk-based pricing, the mortgage
banker's only other choice was to reject those borrowers who
did not fit the prime lending standards.
Of course, in taking more risk we find that credit problems
leading to delinquency do occur more frequently in the non-
prime market. However, our experience indicates that they occur
for predominately the same reasons that they occur in the prime
market: life disruptions that interfere with the borrower's
ability to repay.
Fortunately, responsible non-prime lending can be a second
chance for individuals to get their economic houses in order
and reestablish good credit.
Just as these life disruptions represent temporary, not
permanent setbacks of families, Countrywide's internal data
show that non-prime status is a temporary condition for many of
our borrowers.
Of our non-prime customers who refinance with Countrywide
approximately 45 percent graduate into prime products. This is
compelling evidence that non-prime loans do indeed, provide a
second chance for families who have experienced adverse life
events.
The industry recognizes that bad actors have taken
advantage of vulnerable segments of our communities and they
must be stopped.
This is why the HPC supports congressional efforts to
accomplish four main objectives: enactment of strong, uniform
national standards to directly address these predatory
practices; effective enforcement of those standards by both
federal and state regulators; stronger financial literacy
programs that begin in our school and reach to those who never
got the chance to gain literacy skills in their formative
years; and expanded access to high-quality home ownership and
credit counseling for those who seek it and for those who need
it.
The industry supports a strong new federal standard, but
this standard must not unduly increase costs, eliminate choices
or reduce the availability of credit to the types of borrowers
that I mentioned earlier my testimony.
Non-prime loans play a crucial role in promoting home
ownership and providing financial options to customers outside
of the main stream: a mission I know the members of these two
subcommittees share.
We look forward to working with the Congress to advance
these mutual goals. Thank you very much for your attention and
I would be pleased to answer any questions the committee may
have.
[The prepared statement of Sandor E. Samuels can be found
on page 157 in the appendix.]
Mr. Bachus. I want to thank the witness for your testimony.
Next we go on to Ms. Bryce.
STATEMENT OF TERESA BRYCE, VICE PRESIDENT AND GENERAL COUNSEL,
NEXSTAR FINANCIAL CORPORATION, ON BEHALF OF MORTGAGE BANKERS
ASSOCIATION
Ms. Bryce. Good morning, Mr. Chairman and members of the
committee.
My name is Teresa Bryce and I am the general counsel of
Nexstar Financial Corporation, a national mortgage lender and a
mortgage loan processor for other financial institutions, both
large and small.
Today, I appear on behalf of the Mortgage Bankers
Association as a member of its board of directors. Thank you
for giving us the opportunity to share our views.
Mr. Chairman, the mortgage banking industry is vital to the
nation's economy. Today, more than two out of every three
American families own their own home.
This is a truly amazing historic achievement and MBA
members continue to push for even greater availability of
credit, especially in those communities that have traditionally
lacked access to financial opportunities.
The so-called subprime market that we are exploring today
serves a traditionally underserved group of borrowers that
would otherwise have little or no access to credit because of
blemished or other credit problems.
We can make loans to these consumers through risk-based
pricing and other innovative financing options that were not
available 20 years ago.
The future growth of the subprime market is however,
confronting very serious hurdles. In the zeal to protect our
more vulnerable consumers, State and local governments are
passing far-reaching laws that are creating a confusing and
fragmented mortgage market.
As we have testified in the past, over the past 3 years
close to 30 states have enacted different anti-predatory
lending laws with more pending.
We are beginning to see that this bewildering patchwork of
State and local laws is forcing reputable lenders out of the
market and deeply stifling the flow of capital to many
deserving communities.
Mr. Chairman, in my capacity as legal counsel, I have spent
considerable time tracking and focusing on the issue of
predatory lending.
Even though over the years I have been very involved in
promoting the expansion of credit to underserved communities I
have advised my company to avoid operations in the subprime
market.
I am very disappointed to reach this conclusion, but it is
a decision premised on the enormous legal risks that have
evolved in this market segment.
Risks that, in my opinion, very much outweigh any possible
benefits that could be derived from subprime operations.
Mortgage lending is subject to pervasive federal consumer
protection and disclosure laws. On top of these strong federal
regulations, the layer upon layer of state laws is making it
increasingly impossible to ensure compliance and legal
certainties.
Even lenders who concentrate on prime market loans have to
spend much time and money in trying to navigate this maze of
State and local anti-predatory laws.
At Nexstar, we have purchased an expensive and
sophisticated software package to evaluate each individual
transaction subject to those laws to ensure that our loans do
not trigger coverage.
Notwithstanding these efforts, there is still no assurance
of compliance because some of the tests imposed by these
disparate laws are so complicated or subjective that they
cannot be programmed into a software system.
For instance, the Georgia reasonable tangible net benefits
test worksheet is three pages long and still requires very
subjective decision making that is always reviewable by a
judge.
Even using the best tools available in the market, there is
no way for a mortgage company to proceed with certainty in
knowing that it has successfully complied. This increasing
legal disarray is a real albatross for small businesses.
The penalties under these laws for even unintentional
violations are often draconian and pose too much financial
risk. These penalties are dreadful for large institutions, but
they are potentially fatal for small businesses.
Since these high cost laws impose assignee liability most
investors simply refuse to fund them. Moreover, our investors
are now requiring us to give strict representations and
warranties that we are not selling them loans covered by these
State and local laws.
Again, this adds great cost and much risk and is a burden
that falls especially hard on small lending institutions.
In summary, the legal risk associated with subprime
operations are so great and the liability so enormous that I
cannot in good conscience recommend that my company enter this
market.
Nexstar Financial originated over 17,000 loans last year.
None of these loans were in the subprime market.
It is truly regrettable that our company and other
reputable lenders are opting to entirely forego this neediest
segment of our mortgage market.
We must act to remedy this situation because in the long
run only true market competition among a large number of
lenders will work to expand choice and lower costs for those
communities that are most in need.
Mr. Chairman, industry participants are in agreement: we
need a single national standard so that we may bring order to
the bewildering fragmentation of our mortgage market and
thereby preserve competition in this segment.
Thank you for the opportunity to appear before the
committee. I look forward to answering your questions.
[The prepared statement of Teresa Bryce can be found on
page 109 in the appendix.]
Mr. Bachus. Thank you.
Mr. Dana?
STATEMENT OF WILLIAM DANA, PRESIDENT AND CEO, CENTRAL BANK OF
KANSAS CITY ON BEHALF OF AMERICAN BANKERS ASSOCIATION
Mr. Dana. Thank you.
Chairman Bachus, my name is William M. Dana, president and
CEO of Central Bank of Kansas City, Missouri.
We are designated as a community development financial
institution. I am pleased to testify on behalf of the American
Bankers Association. I commend you for holding these hearings.
Subprime lending, or more precisely, lending to those with
less-than-perfect credit ratings is an important category of
lending that has helped better lives of many Americans.
As with all lending, it must be done in a straightforward
manner with all appropriate disclosures so borrowers understand
the obligations they are undertaking.
Subprime should not be confused with predatory lending
which is characterized by practices that deceive or defraud
consumers.
Predatory lending has no place in our financial systems and
there should be aggressive enforcement of laws and regulations
designed to prevent such practices.
Subprime lending is an extremely important part of my small
bank's business.
The community my bank serves has many individuals and
families who are not wealthy and often lack a perfect credit
score, who need credit and look to our bank to provide it. In
many cases the loans for which they qualify are subprime.
We provide full disclosure of all the terms of these loans
and work hard to make sure our borrowers understand the
obligations they are assuming.
It does our bank no good and certainly our borrowers no
good if they do not fully understand this important financial
obligation.
I would like to share some examples of the kinds of
lending, subprime lending, my bank does and the impact on our
community if we do not extend these loans.
We have helped people who have been victims of predatory
loans like a retired couple with a $19,000 annual income.
They had taken a second mortgage against their home with a
siding contractor paying 19 percent annual interest. My bank
refinanced their mortgages on much better terms and eased their
worry about losing their home.
My bank also helped new businesses get started like a loan
to buy an accounting and tax service business targeted to
Spanish-speaking immigrants.
The applicant had a low credit score and her business
partner had an even lower score. Nevertheless, Central Bank
financed the acquisition at 8.5 percent using the business and
a personal residence as collateral.
Without our loan, these women would not be in business
serving our large Hispanic population. They were both inviting
targets for predatory lending by unscrupulous lenders, but
instead they have a good loan at a fair price benefiting them
and the customers they serve.
We have also helped those in trouble in our community. A
local church came to us when they had a church van repossessed
and another lender had begun foreclosure proceedings against
the church.
The Pastor came to us and even though he had a troubled
credit history, he agreed to guarantee a loan made by Central
Bank. Working together we were able to help him save both the
church and the van.
Without Central Bank's participation in the subprime
market, these borrowers, and many more like them, would not
have these opportunities to help themselves and their
communities. Instead they would likely have been targets for
predators.
A desire to do more to prevent predatory lending is
understandable. It is important to note however, that the
practices typically associated with predatory lending are
already illegal. What is often lacking is proper enforcement.
Laws that add additional requirements only raise the cost
of these types of loans. Complying with many different State
and local requirements adds a regulatory burden, impedes
efficiency, raises costs and reduces the amount of credit
available.
In ABA's opinion, a national standard to prevent predatory
lending may be desirable to ensure that all lenders, whether
they are depository or non-depository, operate under the same
requirements.
The ABA looks forward to working with the members of the
Financial Services Committee to explore legislative options for
a national standard to combat predatory lending.
Thank you.
[The prepared statement of William M. Dana can be found on
page 141 in the appendix.]
Mr. Bachus. Want to thank the gentleman for his testimony.
And Mr. Butts?
STATEMENT OF GEORGE BUTTS, PROGRAM DIRECTOR, ACORN HOUSING
CORPORATION OF PENNSYLVANIA, ON BEHALF OF ASSOCIATION FOR
COMMUNITY ORGANIZATIONS FOR REFORM NOW
Mr. Butts. Thank you.
My name is George Butts and I am the program director of
the ACORN Housing Corporation of Pennsylvania.
Equal Housing has offices in 34 cities throughout the
United States. We are one of the largest providers of housing
counseling services in the country. We have put 52,791 people
into homes.
ACORN Housing works closely with our sister organization:
ACORN, a leader in the fight-to-win economic justice for all.
When we first started this fight it was about access. There
wasn't any money coming into low-income neighborhoods. That is
what creates a vacuum that subprime and predatory lenders
rushed in to fill.
Now the question is not access, but what kind of access.
The fight is becoming making sure that the subprime market is
cleansed of discrimination and predatory lending.
Let us be clear: we are not against subprime lenders. They
have a role to play in our marketplace; everybody is not going
to qualify for an A loan.
But we also know that there is a lot of work to get to a
well-functioning market in this industry. Recent steps taken
because of public pressure are helping get us there.
For example, in recent years Ameriquest, Household
Financial, Citigroup, Fannie Mae and Freddie Mac have all made
changes to help stop predatory lending.
However, for every reformed household, there is an
unrepenting Wells Fargo Financial and a dozen small subprime
brokers who routinely engage in predatory practices.
The subprime market is still an unregulated mess. These
problems run deep, are systemic and occur to people from all
backgrounds, but they are particularly targeted to elderly,
low-income and minority homeowners.
Let me start with a story of a family from Louisiana.
James was a veteran of 25 years in the Marine Corps. He and
his wife, Doris, bought a home through the G.I. Bill in 1994.
Their mortgage had an interest rate of 8.5 percent.
Wells Fargo Financial first contacted----
Mr. Bachus. Excuse me, Mr. Butts, if you could just speak
up. Thank you. We want to make sure we get it. Thank you.
Mr. Butts. Okay.
Wells Fargo Financial first contacted them by sending live
checks in the mail and they cashed one which resulted in a very
high interest rate loan.
Then Wells began pushing them to consolidate debts into
their mortgage, promising lower monthly payments. In December
2001, Wells gave them a nine-year mortgage.
The loan officer never told them that it included almost
$11,000 in finance fees. This was over 11 percent of the amount
financed compared to the typical 1 percent charged by banks.
James and Doris already had insurance but were forced to
finance in single-premium credit life and disability insurance,
which stripped away another $6,400.
Instead of their current interest rate of 8.5 percent,
Wells put James and Dorothy into a higher interest rate of 11.4
percent. The massive fees put the loan well over the house's
appraised value.
When the couple fell behind on payments, Wells convinced
them to refinance, promising lower rates which added in
thousands in new fees, an unnecessary insurance policy and a
higher interest rate of 13 percent.
James and Doris wanted to refinance to a lower rate, that
is when they discovered that they had a five-year prepayment
penalty which would add $10,000 to the cost of the loan.
This is just one story among tens of thousands.
Unfortunately, too many loan features that are totally legal
are profoundly uncompetitive and non-transparent.
Higher finance fees, prepayment penalties and yield-spread
premiums are all easy to hide. Strip equity from borrowers and
reward lenders and brokers for the number of transactions they
complete rather than how many performing loans they set up.
The annual study we released earlier this month, Separate
and Unequal Predatory Lending in America, shows that African
America and Latino homeowners are at least two times more
likely to receive a subprime loan.
What makes this especially troubling is a recent report in
Inside B&C Lending indicating that nearly 83 percent of
subprime loans went to customers with A-minus or better credit
ratings. This happens particularly to people of color. This,
itself, is a form of predatory lending.
There is no reason to accept claims that fair regulation of
subprime loans will lead to lenders leaving the market. In
North Carolina, for example, the State was able to reduce
predatory loans without hurting the subprime market.
Other states have passed strong laws against predatory
lending. Federal laws should not preempt this progress.
In my home state of Pennsylvania, Philadelphia's predatory
lending law was preempted by the State's much weaker and
ineffective law. On a federal level, the Community Reinvestment
Act needs to be strengthened; banks should be given more credit
for prime loans than subprime loans.
By strengthening the CRA, we can help create a stronger
market of good loans in underserved communities. This will help
drive out the predators.
This is going to be hard, but that is okay. As Frederick
Douglass wrote, ``If there is no struggle, there is no
progress. Power concedes nothing without demand. We have seen
the system move before and it can move again.''
Thank you for the opportunity to address you today and I
will be happy to answer any questions that you may have.
[The prepared statement of George Butts can be found on
page 124 in the appendix.]
Mr. Bachus. Want to thank the gentleman for his testimony.
Mr. Stein?
STATEMENT OF ERIC STEIN, SENIOR VICE PRESIDENT, CENTER FOR
RESPONSIBLE LENDING OF NORTH CAROLINA
Mr. Stein. Thank you very much. I am Eric Stein with the
Center for Responsible Lending, which is a research and policy
non-profit.
Thank you Chairman Ney and Chairman Bachus for the
opportunity to testify; and Ranking Member Waters.
The Center for Responsible Lending is affiliated with Self-
Help, which is also a community development financial
institution. And we have done $3 billion worth of financing
across the country to 37,000 families for one purpose: and that
is to make people build wealth through homeownership.
As a lender, starting in the late 1990s, we started seeing
families come to us who had loans that were directly attacking
our mission because they received loans but these were loans
that put their homeownership at risk.
I will just give one quick example.
A woman who works for the Durham Public School System came
to us with a loan from Green Tree Financial. A $99,000 loan,
$16,000 of which were upfront fees, including single-premium
credit insurance.
She is an elderly African American woman. She had a very
high interest rate, higher than her credit warranted and she
had a prepayment penalty, which meant she couldn't get out of
that loan.
There was nothing we could do to help her. And everything
that was wrong her loan was legal under state law and federal
law at that time.
We got together with industry groups in North Carolina, a
really remarkable coalition: large banks, small banks, credit
unions, mortgage bankers, mortgage brokers. We all negotiated
on a bill, along with community groups and civil rights groups
that really had one primary strategy: and that was to squeeze
down on fees and allow interest rates to adjust.
The reason that we thought to do this was that most of the
subprime lending are refinance transactions. The reason that
Mrs. V., it is the borrower that I mentioned, paid such high
fees is that she didn't realize what she was doing.
If you have a refinance loan and an unscrupulous lender
wants to charge high fees, they tack it on to the loan balance.
And all that does is decrease the equity available on the
house.
It is not like you are paying out cash at closing, like in
a purchase transaction, but it is really an easy thing to do
and the same thing happens on the back end as happened to her,
in terms of a prepayment penalty: she would have had to pay
that later and she didn't feel the pain when she signed the
loan document.
So, in North Carolina, we wanted to squeeze fees, let
interest rates adjust. We believe in risk-based pricing; we do
risk-based pricing or we wouldn't still be in business.
If the lender overcharges on interest rates, the best
protector of that are responsible lenders who will come back
later and refinance that borrower out and give them an
appropriate interest rate.
But, if a lender charges fees that are too large, there is
nothing you can do once you sign those loan documents. That
family wealth is gone forever; it is not there to pass on to
future generations.
That was the strategy that we all agreed to in North
Carolina and the results 4.5 years later are in and the results
are positive. Other states have taken the same strategy.
First, what we found is that equity stripping is down; that
stripping of wealth that we tried to address is down.
University of North Carolina did a study that is the most
comprehensive by far, and found that the number of refinanced
loans with predatory aspects to it is down in North Carolina
significantly after the law.
Loans like Mrs. V.'s were flipping, which did not benefit
the borrower. Those types of loans are now illegal, so those
types of loans have decreased as well.
Second, steering is the second predatory characteristic
that has decreased in North Carolina.
The UNC researchers found that loans-to-borrowers with
credit scores above 660, those who are much more likely to be
able to get lower cost conventional loans are down 28 percent
in North Carolina, whereas conventional lending was up 40
percent in North Carolina.
Which I think leads to an important point: in the next
panel, you might hear that if the number of subprime loans
decreases, that inherently means that the State law is a
disaster. But what you need to do is to look what type of loans
aren't being made, because it is not that credit is reduced, it
is the number of subprime loans are down and that might be a
good thing.
In North Carolina, the UNC research has found that it was a
good thing that there were equity-stripping loans that were not
being made and there were subprime loans that could go to
conventional that weren't being made.
The third problem in subprime that we addressed in North
Carolina is foreclosures. There is going to be more discussion
next panel. It is too early; we don't know what the research
says about that in North Carolina.
What we do know is there was a study in Louisville that a
third of all the foreclosures there were due to subprime loans
with predatory features, exactly those features that North
Carolina made illegal and UNC found were reduced as a result.
So we can be hopeful there.
The other point I would like to make about North Carolina
is that while the number of abusive subprime loans are down,
credit is still widely available.
UNC found that subprime purchase loans, the ones that
actually buy a home and increase homeownership are up, faster
than the national average.
Subprime refinanced loans to borrowers who have no other
options, who have credit scores below 580; they are up as well
by 19 percent.
The other point is that Inside B&C Lending found this, and
UNC found it as well, if credit really were scarce in North
Carolina, one would expect interest rates to increase because
credit would have been rationed and the way to address that is
by raising the price of it, which is interest rates.
In fact, that hasn't happened. Interest rates have not
risen in North Carolina, compared to the rest of the country.
The Banking Commissioner received tons of complaints about
mortgage lending; not a single one by a borrower who couldn't
get access to credit.
The last point I would make is that the subprime industry
increased this year compared to last year: 2003 over 2002 by 50
percent, to $332 billion. And it is not an industry that is in
peril, is the point I would like to make.
[The prepared statement of Eric Stein can be found on page
190 in the appendix.]
Mr. Bachus. Thank you.
And we will move on.
Just to explain, the bells have rang, so we have two votes:
one 15-minute, one five-minute vote.
But we will go on with Mr. Theologides, his testimony. And
then we will do the votes and members will come back for
questions.
STATEMENT OF STERGIOS THEOLOGIDES, EXECUTIVE VICE PRESIDENT,
GENERAL COUNSEL AND SECRETARY, NEW CENTURY FINANCIAL
CORPORATION, ON BEHALF OF COALITION FOR FAIR AND AFFORDABLE
LENDING
Mr. Theologides. Thank you, good morning.
The Coalition for Fair and Affordable Lending and New
Century Financial Corporation, the second largest non-prime
lender, appreciate the opportunity to testify.
I am Terry Theologides, executive vice president of
Corporate Affairs for New Century, one of CFAL's founding
members.
We believe that in today's nationwide housing finance
market, uniform, federal statutory standards for non-prime
lending should be enacted to apply equally to all types of
mortgage lenders and to provide strong protections to all
Americans, while preserving access to affordable, non-prime
mortgage credit.
New Century and other CFAL members look forward to
continuing to work with you to help craft legislation that can
be passed with very broad bipartisan support.
It is my honor to appear before you.
Chairman Ney, Chairman Bachus, Congresswoman Waters, we
commend you for holding today's hearing to further members'
understanding of the non-prime market and the Americans who
rely on it.
Non-prime mortgage lending originations were roughly $325
billion in 2003, representing 10.5 percent of all mortgage
originations.
The non-prime mortgage market's expansion since the early
1990s has significantly increased access to affordable credit
for millions of Americans who historically have been unable to
qualify for credit under so-called prime mortgage underwriting
standards.
We acknowledge that unfortunately, there have been
unscrupulous lenders, who have engaged in abuses that are
fraudulent, deceptive and illegal.
Clearly, enhanced enforcement, together with more financial
education and counseling opportunities are needed to help
prevent these abuses from occurring.
More importantly, however, we believe that it is imperative
for Congress promptly to pass new federal standards to
strengthen consumer protections while preserving access to
affordable credit. We want to work with you to craft such a
law.
In my testimony this morning, I want to summarize four key
points, which I addressed in much more detail in my written
testimony.
These are: what is the profile of a typical non-prime
borrower; how do we ensure that non-prime borrowers we lend to
have the ability to repay those loans; how do we determine the
appropriate risk-based price for loans we make to our
borrowers; and why don't these borrowers qualify for prime
loans.
The profile of the typical non-prime borrower is that they
are middle-class, in their 40s and 50s and their racial and
ethnic mix is representative of the U.S. population as a whole.
They had an average income, in 2002, of $71,500.
Before you and in my written testimony, we have several
charts that summarize these demographic characteristics.
When responsible non-prime lenders underwrite a mortgage
loan, we look to assure ourselves that the borrower will have
the ability to repay that loan.
In doing so, we recognize that borrowers who have more
challenged credit profiles, or exhibit other higher risk loan
characteristics represent a greater risk; therefore we analyze
each loan carefully before we approve it.
As a result, our industry has a 52 percent loan denial rate
for non-prime loans, compared to a much lower denial rate of 13
percent for prime lenders.
The pricing of loans in the non-prime mortgage market is
very much a function of both competition and risk. As a result,
the spread in the interest rates between prime and non-prime
mortgages continues to compress and it now averages between
1.75 to 2 percent above today's typical prime mortgage rates.
The handout accompanying my oral testimony and my written
testimony demonstrate how our interest rates and points and
fees track by risk grade. Our risk-based pricing starts with
the categorization of applicants into one of six separate risk
grades, based on a variety of factors.
An automated computer program assigns our applicants' risk
grades. Once an applicant is categorized into a risk grade, her
interest rate depends on a variety of additional factors,
including loan program, loan size, credit score band, loan-to-
value ratio, income documentation, property type and a variety
of other factors.
Many Americans have difficulty qualifying under the more
stringent prime mortgage underwriting guidelines.
To help illustrate why our borrowers end up with a non-
prime loan instead of a prime loan, we took our key
underwriting guidelines and juxtaposed them to Fannie Mae
guidelines. We then ran through our entire population of 2003
loans through these screening criteria.
We found that 81 percent of our customers had a credit
score below 660, which alone would have disqualified them from
the prime market.
Moreover, when we dug further and looked into credit income
documentation and other loan characteristics, we found that
96.5 percent of our borrowers had characteristics that would
have precluded them from qualifying for a conforming mortgage,
based on the published Fannie Mae guidelines.
Of the 3.5 percent that could potentially have qualified
for a conforming mortgage, they end up in our top credit grade
and today, those rates are 5.5 to 6.5 percent.
Mr. Bachus. Not to interrupt the witness, but the time has
expired.
We are going to go to the vote, and so the committee will
be recessed approximately 15 to 20 minutes.
We will be back.
Mr. Theologides. Thank you, Mr. Chairman.
Mr. Bachus. Thank you.
And then we can conclude.
[Recess.]
Mr. Bachus. Members will be arriving in and out. We have a
member, I am sorry. Four members. Five.
Not that I am not paying attention to you, Mr. Clay, I just
got back here and was a little unnerved over a close vote. How
about that?
Well, what we will do is we will go ahead and did you have
any final comments, because the bells were ringing, Mr.
Theologides?
Mr. Theologides. I did. Just a couple more comments.
Should I start, Mr. Chairman?
Mr. Bachus. Real brief.
Mr. Theologides. Sure.
Before you all left for your vote, I was indicating that on
credit, about 81 percent of our customers had credit scores
below the level that is used by regulators and many financial
institutions to demark where is a prime and where is a non-
prime loan.
And that looking at other characteristics, you actually get
down to about 3.5 percent of our borrowers that maybe would
have qualified for a prime loan. And they receive very
attractive rates from us in the 5.5 to 6.5 percent range.
We recognize there are some bad lenders and brokers who
take unfair advantage of borrowers.
We accordingly support strengthening current federal law,
as well as enhancing enforcement in consumer financial
education opportunities.
We also understand that many State and local legislators
who have stepped in to try to fill the gaps in the federal
HOEPA law had been well-intended; however, the irrational
patchwork of State and local anti-predatory lending laws that
is developing is not workable.
New Century and CFAL strongly support prompt congressional
action to provide clear, effective, and workable uniform
national fair lending standards for non-prime mortgage loans.
Thank you.
[The prepared statement of Stergios Theologides can be
found on page 222 in the appendix.]
Mr. Bachus. Thank you.
One of the ideas that has been proposed or bandied about
was to prohibit charging separate points and fees on a subprime
loan, and I guess you would call it front-loaded or put into
the interest rate.
Do you have any comment on that? Or anybody on the panel? I
am sorry.
Mr. Theologides. I would be happy to comment on that, Mr.
Chairman.
Certainly, if people are being charged points and fees that
are not disclosed to them that is not proper. And certainly
that is characterized appropriately as an abusive practice.
But forcing everything into the rate does have its
downside.
Many borrowers cannot afford the monthly payment if the
compensation is packed into the rate. So, offering them an
option of electing either to take some points and fees upfront
to buy down the rate and lower that payment gives them a
choice.
And certainly, that is our position. Our rate sheet, which
is included with our testimony, shows that trade-off. If you
want to pay a little bit more in points or a little bit less in
points, the rate can adjust accordingly.
So----
Mr. Bachus. You would also, wouldn't you have to look at
the longevity of the loan and the cost if you put it into the
interest rate versus outright payment?
Mr. Theologides. That is right.
Mr. Bachus. Or if anybody has calculations or examples of
that, I would be interested in that too.
What it would cost versus----
Mr. Theologides. Right. The paying additional points can
lower the interest rate 50 basis points or more for each point.
Which again, on an average loan, can mean $100, $200 in
difference in payment.
And so, just as in the prime world, people are making that
trade-off, we are concerned that if everything is driven into
the rate, that works well for someone who can has the extra
cash and can put it into the rate, but it removes some choice
from a borrower who may want to make that well-informed choice
to buy down their rate, sir.
Mr. Bachus. Anyone else like to comment on that? No?
Mr. Stein. I would like to make one point, if I could.
As I mentioned in my testimony, the North Carolina law's
goal is not to get rid of points and fees, but to squeeze them
a little bit, because that is where most of the abuse occurs.
And you are still allowing five points, which is five times
the points and fees paid on a conventional mortgage. It is not
like they go away, but it is just favored.
High-cost loans can still be made, but again, there are
more protections in place because that is how equity is
stripped.
Mr. Bachus. Thank you.
Mr. Samuels. Mr. Chairman?
Mr. Bachus. Yes?
Mr. Samuels. One of the issues that we are confronting is
trying to make as many loans available to people who have the
ability to qualify and to afford the loans.
And one of the things that we are discussing is where
should the appropriate lines be on these triggers, as to what
constitutes a high-cost loan, where should they be drawn? The
lower they are drawn, the more people are going to be cut out
of the credit market.
Certainly, there are abuses that have been talked about,
bad practices that are legal that need to be addressed, such
as: people who are made loans without the ability to repay
them; people who are made loans who derive no benefit from
them; people who are steered to subprime if they could qualify
for prime.
Those things, I think, if they are addressed in the
legislation, I think that drawing an appropriate line for high-
cost triggers that allows people choice, that gives people the
opportunity either to finance their points and fees up to a
certain level, or to pay them upfront, I think is something
that we want to be able to do because it will expand the
opportunity for people to get credit.
Mr. Bachus. Well, thank you.
Go ahead.
Ms. Bryce. I would just add that is what we have seen in
the marketplace is that in the purchase market, in particular,
there has been difficulty with consumers being able to come up
with the amount of money they need for closing costs and down
payment, even on prime loans.
So as a result, I think you need to leave the option of
doing either one because they may need to finance in some of
their points and fees in order to be able to get the loan.
Mr. Bachus. Thank you.
One question I have, Ms. Bryce, is you talked about the
patchwork of state laws, and some of the complications that
arise over that.
I wonder if you could just give us an example.
And I am going to finish my questioning in the back and
forth here, and we will have some additional time.
But very quickly, if you can give me one example of a
complication of state laws; different patchwork, but also, I
also I would even take it a step further, I guess, as we go on
here, of municipalities.
I mean dealing with the State is one thing, but I can tell
you in municipalities, and I know in Ohio, I think it is been
unfair to people.
If you are in Cleveland it is going to be a different story
for you than maybe if you are in Dayton or somewhere else and
defined of the State law by the locals, so you have a
hodgepodge of laws all over our state.
But right now, if you could just tell me about a
complication involving state laws.
Ms. Bryce. Sure.
I would echo what your comment is about Cleveland, because
with----
Mr. Bachus. Not to become Cleveland, but----
Ms. Bryce.--but for instance, a good example is in the
State of Illinois, with the City of Chicago.
Where you already have the federal HOEPA laws, but the
Department of Financial Institutions of Illinois also has
issued a set of regulations on mortgage loans.
Cook County has also passed an ordinance related to these
practices, as has the City of Chicago, in addition to the
already expansive mortgage lending laws that cover our lending
practices.
So in fact, in the City of Chicago, you are subject to at
least four sets of laws, not including the federal law.
Mr. Bachus. Thank you.
And my final question, and then I will move on to other
members, would be for Mr. Butts.
In the separate and unequal study, I think it is asserted
that a large number of the current subprime borrowers actually
qualify for prime loans, I think is what it said.
Now, I think if you have a credit score below 660 you can't
receive prime credit. So, how can that study say that 35 to 50
percent of the subprime borrowers qualify for prime rates when
about 80 percent of those individuals have credit scores below
660, which would be a cutoff rate?
Mr. Butts. Because in a lot of cases a lot of mainstream
banks have products that are not just based on credit scores,
but they are based on the credit report and what the credit
report says.
And people who come to counseling agencies like us, because
we have things to help mitigate the risk. So, our rate right
now for a fleet loan with a credit score of 580 is 5 percent.
And a lot of people----
Mr. Bachus. Sorry, 580 is 5 percent?
Mr. Butts. Five percent.
So, people can qualify. And I mean that is one of the
reasons that we put that statement at the beginning, where we
say what really needs to happen is that the mainstream
financial institutions need to work harder at providing
alternative products to what the predators are doing.
I mean this is some of the things that are happening in
Philadelphia right now, with our Mini-PHIL and PHIL-Plus
programs.
That was a consortium of banks and counseling agencies, and
the city, where we all put together and got a product that
directly addresses what the predators were doing, which was
going after people with home improvement loans and giving them
high interest rates.
Now they can come to a regular mainstream bank with a
credit score, for some institutions, as low as 550, and get a
regular home improvement loan and not have to go to the
predatory loans.
Mr. Bachus. Can I ask the lender? I just haven't heard of
below 550 at 5 percent.
Mr. Dana. Mr. Chairman, maybe I can address a little bit
from our experience, as a community development bank.
We typically make loans regularly on credit scores that
would not qualify as what you would consider a prime rate. Most
of our clientele that we deal with have had some type of credit
experience or difficulty with credit in the past.
So, basically it becomes an issue of working with those
borrowers on a one-on-one basis regardless of what their credit
score is to get them a product that will accomplish what they
are looking for, which is in most cases, wealth-building of
some type.
Mr. Bachus. So it can happen with 580 and you can get 5
percent? Statistically, you know what percentage of individuals
can do that?
Mr. Dana. I can't quote statistics, I can just speak to
what happens in our individual institution, but if there are
statistics like that, we could see if we could find some and
get back to you.
Mr. Bachus. Mr. Theologides?
Mr. Theologides. We are the second-largest non-prime
lender, so we are working with programs that can be offered,
sort of, nationwide.
And for a 580 borrower a 5.5 percent interest rate is
probably not impossible, but it is pretty tough. It has to fit
into a lot of other parameters. But that borrower would today
get in the sixes or in the sevens.
And again, we have grown to be the second-largest in this
industry not charging more than everybody else. We have been
among the most competitive.
So, I think while there might be some specialized
programs----
Mr. Bachus. Because not a down payment might be a factor
also, I suppose?
Mr. Theologides. Amount of down payment, loan-to-value
rates----
Mr. Bachus. If they have a lower credit score, but they
have a certain amount of holdings or assets?
Mr. Theologides. Absolutely.
What I would illustrate is, and what we have put in our
testimony is there are lots of variables; it is not a black
box. You look at the different variables of what the credit is,
what the loan-to-value is, what the assets are, and it is
available on our Website.
It is not mystery pricing, it is looking at all of these
variables and how they affect the risk to the lender and
everyone. We are competing vigorously against Mr. Samuel's
company and when his rates go down in the morning, I hear it
from my people in the afternoon.
We are always struggling to try to compress how we can
balance the risk, the increased risk, but at the same time
maintain competition in this segment of the market.
Mr. Butts. I also think the key to mitigating that risk ha
been loan counseling.
We do a lot of what we call character lending, where we are
actually looking at the circumstances and we are suggesting.
And a lot of times we have access to the underwriters who are
actually drafting, approving these loans.
And we are making the case that based on this set of
factors we think you should make this loan. And more often than
not, because of the parameters that we have set up with them,
we are able to do that.
Mr. Bachus. Now in some cases, when you are talking about
the 580 or below, is the CDFI subsidizing, well, giving the
full-faith backing?
Community Development Finance----
Mr. Dana. I can speak to that.
We are a CDFI, and on an individual loan-by-loan basis, the
CDFI does not grant grants based upon individual loans. They do
it on the overall picture based upon your increase in lending
into distressed communities.
Mr. Bachus. Not a grant, but I mean a subsidation.
Ms. Bryce. I think you do have to look at certain bank
programs because some of them are created for CRA purposes and
they are a negotiated program.
And sometimes they are essentially unprofitable programs
for the banks, but they decide to do those programs at any
rate.
So, I think you have to know what you are looking at and
how it compares to what else is available in marketplace.
Mr. Bachus. Well, in a generic basis, a broad-brush basis,
are these loans exceptions to the rule or it happens a certain
amount of time, or it happens a lot, to put it kind of in
layman's terms because we don't know statistics.
Are these exceptions to the rule, the below 580 credit
score at 5 percent or do they have them with certain frequency
or?
Mr. Dana. Yes, Mr. Chairman, I would agree with Terry, that
it is an unusual situation. You would have to look at the
circumstance.
Certainly, you can buy down the rate to very, very low, but
with 580----
Mr. Bachus. Not to interrupt you, but let me put this
caveat in there.
Let us just talk about market-based loans; no CDFI, no type
of special, first-time homebuyer rates, market-based loans. Are
a lot of people getting these loans below 580?
Mr. Samuels. I mean one of the things I mentioned in my
testimony is that our average rate for the last three months
ended in February, was just a little over 7 percent for our
non-prime borrowers. That is the interest rate.
The APR would be in the high sevens. So, a 5.5 percent rate
for someone who is clearly in the subprime category, which
somebody of 580 or below credit score would be, that would be
unusual. But again, we would have to take a look at the
circumstances.
Mr. Bachus. I apologize; I have run way over my time.
Ms. Velasquez? Mr. Watt?
Mr. Watt. Thank you, Mr. Chairman.
Let me just say first of all, since this is the first
hearing or opportunity since H.R. 3974, the bill that Mr.
Miller and I dropped, let me make a couple of comments.
I know this is about subprime lending, but most everybody
has talked about predatory lending and is sometimes difficult
to know where the line is between subprime and predatory
lending.
So, what I wanted to ask each of the panelists, and maybe
other people in the audience, to do is now that the bill has
been dropped, essentially reflecting what the North Carolina
standard is, in as many respects as the North Carolina standard
fit at the federal level.
There were some respects where we had to make some
adjustments just because it was not a perfect fit at the
federal level.
I want to invite comments and feedback from those
participants in the industry who understand this dynamic and
want to emphasize that as North Carolina's purpose was not to
drive lenders out of the market, neither was Representative
Miller, and my purpose to drive any lender out of the market.
And we are trying to find what the appropriate balance is.
We think our balance is better on balance than the Ney-Lucas
bill, I would have to say.
But----
Mr. Bachus. You always have time to reflect and maybe
change your mind.
Mr. Watt. But we also understand that reasonable minds can
differ on a number of the issues, and so this is the stage at
which feedback is welcome.
We couldn't get feedback from everybody before we dropped
the bill, but that is the purpose of dropping a bill, that is
the purpose of having hearings and hopefully through a series
of hearings we will get to a bill that is an appropriate
standard.
Having said that, we know that there are and have been
specific benefits that have resulted from the North Carolina
law, and since Mr. Stein is here from North Carolina, perhaps I
would give him the opportunity to put some of those benefits
into the record as we start to build this record.
Mr. Stein?
Mr. Stein. Thank you Mr. Watt.
You probably won't be surprised to hear that I think your
bill is an excellent one.
I think based as it is on the North Carolina law, which was
negotiated by industry and consumer groups, I did mention a lot
of the benefits, and going back to the previous question about
are people getting the appropriate loan, and I think for people
in North Carolina that is increasingly the case.
Since borrowers with credit scores above 660, again, there
are fewer of those in North Carolina getting subprime loans,
they are getting conventional loans.
There is less equity stripping because fees are squeezed
into a five-point bucket, which isn't squeezing so far again,
that is five times the amount of fees in conventional, but UNC
found that abusive equity stripping loans are gone from the
market, and yet credit is still widely available.
I think it has been a pretty unqualified success in North
Carolina as a result of the law.
Mr. Watt. Perhaps we could get a copy of the study that was
actually done.
And Mr. Chairman, I might ask unanimous consent to make
that University of North Carolina study a part of the record of
this hearing so that everybody would have the benefit of it.
[The following information can be found on page 273 in the
appendix.]
Mr. Bachus. Without objection.
Mr. Watt. I think my time is about up.
I wanted to go a little bit further into this issue that
the chairman raised about the interplay between points on the
one hand and interest rates on the other hand. But I think we
will have opportunity to do that over time.
So trying to keep within the spirit and the letter of the
five-minute rule, Mr. Chairman, I will yield back.
Mr. Bachus. I want to thank the gentlemen.
Mr. Hensarling?
Mr.Hensarling. Thank you, Mr. Chairman.
I certainly appreciate the serious nature of this hearing
and the serious legislation that has been drafted to attempt to
address it.
But there is a great challenge for the committee because,
as I listen to the testimony very closely and listen to the
opening statements, as we are dealing with the issue of
subprime lending, and I guess it is evil cousin predatory
lending, there doesn't seem to be an acceptable definition of
what constitutes predatory lending.
If so, it is going to be very difficult for us to legislate
against something that we are having a little trouble defining
in the first place.
I, for one, believe that absent any compelling evidence of
force or fraud, I am loathe to outlaw a commercial transaction
between consenting adults.
When we are dealing with the issue of fraud, obviously
these subprime loans are subject to a number of disclosure
regulations already, so the first question I will place to a
couple of members of the panel.
What disclosures are presently missing from HOEPA that you
would like to see in legislation? What is not being disclosed
to the consumer in the offering of this credit?
Why don't we start with you, Mr. Samuels?
Mr. Samuels. Thank you, Mr. Hensarling.
First of all, I want to thank you for your leadership in
Plano, Texas, where we have a large facility and we appreciate
all your help in moving a lot of employees over to Plano.
Let me address what predatory lending is, and then we will
get to the disclosures.
I think that predatory lending can be defined in a number
of ways, and we are talking about bad practices, including
fraud, including making loans to someone who cannot repay,
including making a loan to someone where there is no benefit to
that individual.
And I think that those are the areas that we really need to
focus on in crafting good, solid, uniform federal legislation,
preemptive federal legislation that can really address directly
the issues that we are talking about.
In addition, however, in direct response to your question,
we have a number of disclosures that Countrywide uses to help
people understand what the nature of the loan is.
For example, there is been a lot of talk about prepayment
penalties.
One of the things that we do is we provide our borrowers
with a choice between a loan with a prepayment penalty and a
loan without a prepayment penalty.
And we have a disclosure form that very clearly sets forth
what the loan looks like with a prepayment penalty and what the
same loan would look like without a prepayment penalty, and
what benefit would be gained from taking a prepayment penalty,
and what the amount of the prepayment penalty would be, to give
people a good idea of whether it would make sense for their
particular circumstance to take a loan with a prepayment
penalty.
If they take the loan with the prepayment penalty, they
will get a benefit on the price of the loan. You see? So we
have that disclosure.
We are also creating a disclosure that I have talked to
several of your colleagues about. That is, a summary of loan
terms, because as you know, we have a very thick stack of
documents at closing.
What we want to do is to take the summary of loan terms and
we call it, ``Understanding Your Loan,'' that basically says,
``Here is what your loan is. Here is the interest rate, here is
the monthly payment.''
``Is it a 30-fixed? Is it an ARM?'' All of the basic and
important terms of the loan, so that somebody could see that
before they sign on the bottom line.
Also, they would be able to use that document if they
decided they wanted some counseling and they wanted somebody to
look at that loan, the counselor would not have to pour through
hundreds and hundreds of pages, they would have a document that
says, ``This is what the loan looks like, is it a good idea or
not''.
Those kinds of disclosures. We have broker disclosures,
having our borrowers understand what the role of a broker is,
and how a broker is compensated.
So we have a number of things that we do to try to help the
borrower understand the loan process.
Mr. Hensarling. Thank you.
Mr. Samuels, the time passes quickly, I see my time is
about to run out.
No pun intended, but I was hoping on giving Mr. Butts a
chance to rebut.
I notice in your testimony you mention that a predatory, if
I am reading this correctly, that you cite prepayment penalties
as a predatory feature, yet Mr. Samuels says there can be a
rate differential, based on prepayment penalty.
So, it seems to me that if we are taking away consumer
options, how is this helpful to the consumer? And why is a
prepayment penalty, per se, a predatory lending practice, Mr.
Butts?
Mr. Butts. Well, like financed fees it is so easy to hide
prepayment penalties.
I think the problem that we have with them, generally
speaking, is that one: they are too long, two: that they are
not really fairly disclosed to people.
That you understand that you can't, if you take this loan
with this prepayment penalty, you are, sort of, stuck in this
loan for a certain period of time, and you need to know that
upfront before you sign the paperwork.
And the fact that there is no real disclosure about it a
lot of times; I know because I have had loans like that before.
God has a wonderful sense of humor; most of the stuff that
we have been through, my wife and I, is stuff that we talk
about all the time.
So, I saw the paperwork that said prepayment penalty when
we sign for a loan that we got, and we said, ``Well, why do we
have to?"
Well, at the time there at settlement, we had to sign the
paperwork, whatever the terms were that they were giving us, we
still had to sign it because our circumstances with such that
we were told, ``Well, you have to. The loan is going to be this
much interest rate and we have got the table with a different
interest rate that said, well, you can finance down later on.
Just take the loan now.''
Those are the kinds of things we hear all the time. And the
prepayment penalty was just another part of the process, and
another thing they told us not to worry about when we had to
sign the papers, because you had to sign it because otherwise
you wouldn't get the loan to get out of the mess that you were
in.
Mr. Hensarling. I see my time is up Mr. Chairman.
Mr. Bachus. Thank you.
Gentlelady from California?
Ms. Waters. Thank you very much. There are a couple of
questions I would like to raise.
First, I am just curious how many lenders represented here
today support preemption. Do you support preemption Mr.
Samuels, do you support?
Mr. Samuels. Yes ma'am.
A federal preemptive bill.
Ms. Waters. And what about you, Miss----
Ms. Bryce. Yes, we do.
Mr. Dana. Speaking on behalf of our bank, we are a state
nonmember bank, so we are not regulated by the OCC. So, it
would be difficult for us to speak to that issue, but the ABA
can get back to you on that.
Ms. Waters. All right.
Let me ask about mandatory arbitration. Can a borrower be
refused the ability to get the mortgage, rather, if they
disagree with mandatory arbitration? Can you be turned down and
turned away?
Ms. Bryce. Well, there are a lot of mortgage products, or a
lot of mortgages in the marketplace today that don't require
that don't require mandatory arbitration.
So, I think there is certainly availability of those
products without mandatory arbitration.
Ms. Waters. Now, let me back up.
I personally have been looking at properties and went to
escrow in one and talk with realtors about others, and talk
with bankers, talk with everybody, and it seems that this is
almost a standard practice now to have these mandatory
arbitration clauses.
Ms. Bryce. I can only speak to our company. We do not have
a mandatory arbitration clause.
Ms. Waters. Oh, good.
Ms. Bryce. And we have discussed that issue, because
frankly, having been in the mortgage industry for quite some
time now, I have seen a lot of class actions.
And unfortunately, a lot of them have not been because
there has been any real damage to the borrower, if any, but
rather, because the class-action lawyer was looking for fees.
And so, the whole issue of mandatory arbitration came up in
the industry as a way to really have a way to address disputes
with a particular borrower.
They really had an issue and have a forum, an alternative
way to deal with that, in lieu of finding the industry involved
in a lot of class actions.
Ms. Waters. Yes, I know the reason for it.
What is represented, but I guess the question becomes: Can
a customer, can a consumer be denied simply because they
disagree with the mandatory arbitration?
Mr. Dana. We do have mandatory arbitration, Congresswoman
Waters. And it is one of the required documents that we ask a
borrower to sign.
We have worked very hard to make sure that our arbitration
agreement is extremely fair.
Ms. Waters. But could you turn somebody down because they
disagree?
Mr. Dana. You mean if they refuse to----
Ms. Waters. Yes, if they refuse to sign that? Just that
one; that is the only thing they have an issue with in there?
Mr. Dana. But it could happen. It could happen, yes madam.
Mr. Theologides. If I could comment on that as well,
Congressman Waters?
Ms. Waters. Yes?
Mr. Theologides. We have not made a loan ever with
mandatory arbitration; it is not in our standard package. But
we, CFAL, group Coalition Repair and Affordable Lending,
believe this is an area, again, for appropriate federal
regulation.
Now, the Countrywide arbitration clause, from what I have
heard, is a pretty fair one and they bear all the fees, but
there are abusive arbitration----
Ms. Waters. General standards.
Mr. Theologides. Yes.
Ms. Waters. What I am told is you don't know who will be
selected to be the arbiters; you don't know whether or not you
have to travel long distances to get involved.
And there are no standards, so what one company could call
fair, well, everybody could call theirs fair, but it is all
different. There are no standards, is that right?
Mr. Theologides. Well, New York adopted some pretty good
standards about what goes into a fair, as opposed to an
abusive, arbitration clause.
So that is something that this committee should discuss, as
it is evaluating how to regulate non-prime lending, to the
extent lenders have some standards about what is a fair.
What are the rules; how is the arbitrator selected; who
pays; it doesn't seem fair for the borrower to have to write a
check just to pursue their rights about a potential dispute.
Ms. Waters. Why isn't it voluntary?
Mr. Samuels. I am sorry?
Ms. Waters. Why isn't it voluntary? Why can't the consumer
have a choice?
Mr. Samuels. Frankly, because at the time of the dispute,
when the lawyer gets involved, they will always want to get to
the jury lottery, and they will not choose the arbitration.
And by the way, I agree with you in terms of standards, and
we think that one of the things that a good piece of
legislation ought to have are standards so that the venue is in
the place where the property is located or where the borrower
lives.
Ms. Waters. Would you accept preemption if a mandatory
arbitration was eliminated altogether?
Mr. Samuels. Would I accept preemption? That is a difficult
question.
What I would do----
Ms. Waters. You support it now?
Mr. Samuels. I would----
Ms. Waters. And if it had everything in it you wanted
except mandatory arbitration would you support it?
Mr. Samuels. It is a negotiation process, I would say, and
I would say that that would be part of the negotiation.
And if we got everything that industry wanted, I think that
that might be something that we would be able to certainly
discuss.
Ms. Waters. Yes, sir.
Mr. Theologides. If I could comment on that?
Ms. Waters. Okay, yes.
Mr. Theologides. One of the reasons that many companies
elect to have arbitration clauses is this concern about
lawsuits. One way to address that might be to provide a
meaningful right to cure.
I know that responsible companies, you make a mistake. We
had 160,000 loans last year; you are going to make a mistake.
If you are a responsible company, you want to hop on that,
address it, fix it.
Right now, in the federal HOEPA, there is not, we feel, an
adequate right to cure. So if you have made a mistake, God help
you.
And so that, as a result, lenders respond to that saying,
``Well, I lost my ability to fix it, now I need to defend,''
and be concerned about that.
So I think many, not speaking for Countrywide, but I think
many lenders philosophically, if they had a right to fix their
errors, may be more receptive to constraints on mandatory
arbitration because then you don't have to worry about it.
Look, I will clean up. If one of my people made a mistake,
it is my job to fix it, give me that chance for 30 or 60 days,
upon proper notice, and then shame on me if I haven't fixed my
mess.
Ms. Waters. Would you agree with that, Mr. Samuels?
Mr. Samuels. Yes ma'am.
Ms. Waters. Thank you.
I yield back.
Mr. Bachus. Thank you.
The gentleman from Vermont: Mr. Sanders.
Mr. Sanders. Thank you very much, Mr. Chairman.
Before I ask a few questions, I do want to point out that I
always am amazed that conservatives, who often tell us how bad
the big mammoth federal government is, now want to preempt
those little old states where democracy flourishes.
So, I always find that interesting.
I maybe think that what we need is a very strong federal
floor, in terms of predatory lending, but we have to allow
states to address their own needs, and if they want to go
further than the federal government, I think that they should
be very clearly allowed to do that.
Let me ask Mr. Stein a few questions, if I might.
Mr. Stein, how has North Carolina's subprime mortgage
market changed since the enactment of the 1999 anti-predatory
lending law?
Mr. Stein. The market has changed by limiting upfront fees
that borrowers pay, which has eliminated a lot of the equity
stripping abuses that have happened.
It has also changed in the sense that borrowers, who
qualify for conventional loans, are actually getting
conventional loans more than they are getting subprime loans.
So, both of those factors mean that there are fewer
subprime refinanced loans that are happening in the State, but
that is not the same thing as saying credit is not widely
available, it is just the fact that the borrowers can go to the
conventional market and get a loan.
And I think that the market has improved significantly.
Mr. Sanders. So, you have touched on this.
My second question and that is, Has North Carolina's anti-
predatory lending law hurt Self-Help's ability to make subprime
home loans?
Mr. Stein. No.
This is a national statistic, but we made $3 billion worth
of loans nationally. In North Carolina it is probably $1.25
billion worth of loans.
And the interesting thing about the North Carolina law is
that it was the representatives of the large banks, of the
community banks, of credit unions, and when those are agreeing
to actually voluntarily be regulated, then that is something to
take notice of.
North Carolina is not a hotbed of government regulations,
and they were supporting a bill that imposed regulations on
them. They haven't asked to be preempted from it.
And so all of us have been able to make responsible loans
in North Carolina following the implementation of the law.
Mr. Sanders. Has anyone ever brought to your attention a
prospective borrower who could not get a mortgage loan because
of North Carolina's laws, provisions?
Mr. Stein. No. We have never seen such a borrower.
We have seen a ton of them who receive loans that they
shouldn't have received because there is no benefit to the
borrower.
The Banking Commissioner is the one who probably would have
heard the complaints more than us.
Seventy-5 percent of all the Banking Commissioner of North
Carolina's complaints are due to mortgage lending.
Not a single one has ever been from a borrower who couldn't
get access to credit, and we haven't seen that borrower either.
Mr. Sanders. There are contradicting studies of the effects
of the North Carolina law.
Could you briefly tell us why you think the University of
North Carolina study gives a better picture of North Carolina's
subprime market than the study conducted by the Credit Research
Center?
Mr. Stein. Sure.
UNC has the most recent and far-reaching study. They used a
loan database called Loan Performance, which is the only one
that actually looks at the terms of the loans that were
happening in North Carolina.
They looked at seven quarters before the law was
implemented, and seven quarters after the law was fully
implemented, and compared those two, compared it with the
country.
The Credit Research Center, their research ended the day
before the law became fully implemented. You can't really learn
much there.
And all they could do is say that credit had decreased a
little bit.
But what UNC did is they took it a step further.
What subprime loans were not made because to say that
subprime loans were not made could be a good thing; could be a
bad thing.
And what they found was that the loans that weren't being
made were the ones that the law intended to prohibit, which are
equity-stripping or abusive loans.
So, they used a much more comprehensive database, they
looked at the terms, and they used a longer time period.
Also, it is a publicly accessible database, as opposed to
Credit Research Centers which is proprietary with anonymous
lenders.
Mr. Sanders. Okay.
My last question is how does the North Carolina law prevent
the flipping of subprime home loans?
Has the provision helped curb abuses?
Has the tangible net benefit under all the circumstances
created problems for responsible lenders?
Mr. Stein. That was a very controversial provision when it
was placed in there and we have had a lot of discussions about
what should the standard be.
And it is kind of like obscenity, in the sense that it is
hard to put an exact definition to it.
And what we said was if anybody could think of a better
standard we are happy to implement it. And nobody could, and so
nobody loved it, but everybody lived with it.
And I think it is had as much impact as the rest of the
law. The important thing about it: I agree on class actions, in
this case.
This is not something where you can really do a class
action because it is the individual circumstances of the
borrower looking at their new loan, looking at their old loan,
looking at all their circumstances.
So, there is been very little litigation in North Carolina
about it. I think that provision is largely responsible for the
fact that North Carolina borrowers who are eligible for
conventional loans are getting those instead of subprime loans.
Mr. Sanders. Okay.
Thank you very much, Mr. Chairman.
Thank you.
Mr. Bachus. Thank you.
Ms. Velazquez?
Ms. Velazquez. Thank you, Mr. Chairman.
We all know, or we all heard that they are hanging on their
sub-default on foreclosures in the subprime market.
And the numbers are, unfortunately, skyrocketing in some
low-income communities, like my district in New York.
It has been brought to my attention that some lenders and
loan servicers have developed relationships with large housing
counseling agencies, in which they contact the housing
counselor when one of their borrowers becomes delinquent. Then
the counselor contacts the family to offer assistance.
Can any of the lenders and consumer groups comment on this
type of relationship and whether you think it would be helpful
in preventing recipients of subprime loans from going into
foreclosure?
Yes?
Mr. Stein. May I respond?
We think that is a wonderful idea, and frankly we are
working with the 3-1-1 program in Chicago, where that is one of
the features of the loss mitigation tools.
Our biggest challenge in helping people avoid foreclosures
is getting people to call us.
That is the biggest challenge that we have, because when we
can talk to someone, we more often than not, and way more often
than not, can do a workout with them. You see?
Our company loses on average $30,000 for each foreclosure.
It is not in our interest, it is not in our investor's
interest, and it sure isn't in the borrower's interest to go
through a foreclosure.
And we spend a lot of time and effort and resources to
mitigate these losses.
We have a very large Loss Mitigation Unit, and we would be
delighted to work with housing agencies or counseling agencies.
Ms. Velazquez. Okay.
Mr. Stein. There are privacy considerations, but they can
be overcome, and we can develop those kinds of arrangements.
Ms. Velazquez. Yes?
Mr. Butts. When we initially bring people in for
counseling, one of the forms that they sign is a disclosure
form, stating that it is okay for the lender to get back in
touch with the counseling agency if the loan goes to 30 days
late, or even 15 days late in some cases, so that we can
intercede on the lender's behalf to try to see if there is
something we can work out.
A lot of times, what we have been finding especially
lately, with the high foreclosure rate in Philadelphia, is that
a lot of people haven't been driven to us to get that help in
the first place.
The sheriff's department had a record 1,000, over 1,000
foreclosures last month and it worried everybody to such an
extent that everybody in the area got together: the lenders,
the city, the counseling agencies, everybody.
And we held this big symposium on the 18th, where we had
people who were about to lose their homes, the sheriff's sale,
come in and try to get work outs and everything done.
They had to sign disclosures saying that it was okay. But
it was the unification of will, I think, that sort of helped
get that done.
And what we are finding, looking at a lot of these cases
now, that people are starting to come in from the sheriff's
sale, is that a lot of them, when you look below the surface,
had bad loans to begin with.
They had servicing problems with the servicers that caused
defaults. They had problems with the lawyers. Then the banks
wanted to work out an agreement, but they couldn't because the
lawyers wanted their money upfront.
And there wasn't enough money there to solve the default
and pay the lawyers. All kinds of wild and unusual problems
that are showing up here that are causing these defaults and
foreclosures.
Ms. Velazquez. Thank you.
Many borrowers who may qualify for prime mortgage credit
are paying higher costs for subprime loans.
What role do you think consumer education can play in
ensuring that families that qualify for the prime mortgage do
not end up with higher costs of a subprime loan?
Yes Ms. Bryce?
Ms. Bryce. Well, I think with consumer education there is
an opportunity there to let people know that they have so many
options.
And that is why it is so important to promote competition
in the marketplace.
It is important for people to know that they should shop
for a loan. We have encouraged that, the whole disclosure
scheme that we have is designed around trying to shop, but in
fact, a lot of----
Ms. Velazquez. But that is part of education.
Ms. Bryce. Right. A lot of people don't do that, and so we
need to promote that.
Ms. Velazquez. Okay.
On the other side, we have many borrowers who are not
financially prepared to purchase a home that are targeted for
subprime loans and are a greater risk of default and
foreclosure.
Do you think requiring subprime lenders to advise families
to seek housing counseling before purchasing a subprime loan
will help mitigate the effects of predatory lending?
Mr. Butts. I think that is absolutely true, that that would
be one of the things that we would actually need.
I mean in some ways, education is the easiest part of this
to fix, because everybody is out there doing education.
It is the systemic problems that are in a lot of the
industry that we really need to fix, because we can't get at
that if people going door-to-door talking people into getting
loans that they can't afford.
Ms. Velazquez. Can we hear from the lenders side?
Ms. Bryce. It is also an opportunity to deal with fraud and
misrepresentation.
I think that has come out in a couple of situations and
discussions here, and those are the kinds of practices that you
can only get to through some type of counseling to understand
that that is going on.
Those are already practices that are illegal, but
identifying them up front would help then move a borrower into
another situation.
Mr. Samuels. Right, we very much encourage people, if they
wish it and seek it, to get counseling, and we provide the 800-
number for the HUD counseling services.
We believe if there is an educated borrower, we win.
Ms. Velazquez. But you don't have any problem if that is a
requirement?
Mr. Samuels. A requirement, you mean mandatory counseling?
The problem is the expansiveness of the requirement. There
are people who need it, certainly, but there are people who
really feel that they don't need it.
And a lot of these people feel very insulted and actually
discriminated against. That is what our experience has been.
We had a HUD required counseling program. Many people were
very upset about it. We think that counseling programs need to
be available; people need to know about them; they need to have
an 800-number that they can easily access; and we should
encourage people who feel that they need that to access it.
A mandatory counseling program, however, you are talking
about, you know, millions of counseling sessions.
Mr. Bachus. Time has expired.
Ms. Velazquez. Yes.
Mr. Bachus. Go ahead, if you want to finalize it.
Mr. Theologides. Well, I would concur with Mr. Samuels.
That every borrower within three days of application gets
the 800-number from us of a counselor. Some elect, many do not.
We think borrowers should have the choice, should they feel
they need it, but making it mandatory for two or three million
loans is a lot of counselors that today don't exist.
And so we would be concerned about making it mandatory,
because it would slow down the ability of people to re-fi or
buy a home.
Ms. Velazquez. Thank you, Mr. Chairman.
Mr. Bachus. Excuse me.
Thank you.
Mr. Miller?
Mr. Gary G. Miller of California.Thank you, Mr. Chairman.
I have been in the development industry for over 30 years,
and I agree with what you are saying.
Most people come in, they want to know what their down
payment is going to be, their closing costs, and what interest
rate, and that is it.
You want to try to steer them to the proper people, but
mandatory could make it very, very difficult.
And like we were discussing RESPA reform, and putting a
reform measure out there that really made it very difficult for
mortgage brokers to stay in the business really bothered me,
because a lot of people will go to a lender who don't have time
to go out and worry about a person's credit report, and they
will get turned down, because they don't qualify for prime.
And they will go to a mortgage broker, and they will work
with them and find a way to help them with their credit report,
look for a lender who makes the subprime loan and get them into
a home where they might not otherwise be able to do that.
I am not putting lenders down, don't get me wrong, it is
not intended to do that, but it is a difficult, complicated
marketplace. It is like a puzzle, anytime you impact part of
it, you impact the whole.
And oftentimes we start debating subprime and predatory,
and we blur the distinction between the two.
And we need not do that. I mean I have been very concerned
with looking at what we have done in about 30 states and
municipalities, especially Oakland in California and Los
Angeles.
Things they have done on the Georgia line really, really
bother me because there is a lot of people out there who have
credit ratings that are not quite what they would like them to
be, and what some lenders in the prime marketplace have to look
and categorize as less than prime.
And if you start allowing the direction I think they went
in Georgia and Oakland in California, you start eliminating the
option for many people who otherwise would be able to buy a
house, you put them in a position where they have to be
renters.
And above all, we want to avoid that because we look at the
major opportunity for people to acquire private wealth, it is
owning your home.
I voiced today the issue of, you know, section 8 vouchers.
They are fine temporarily, but we have to do something to have
a move up market, where people can get out of the section 8
into a home of their own.
And I guess I would like you to, Ms. Bryce, maybe you could
answer this one: could you please expand on how the
additionally newly passed and soon-to-be effective laws that
are very similar provisions to the Georgia law, how those
really impact people who want to borrow money to get in a home?
Yes, madam? And anybody on the panel who would like to
address that.
Ms. Bryce. Well, I think what happens is as each one of
these laws comes down, and there is almost not a day that goes
by that I don't get an e-mail about something new that is
pending, we are having to step back and look at what the
ramifications are in that particular marketplace and decide
whether that is something where we have to pull back in that
marketplace.
And that is something that we are just not accustomed to
having to deal with.
And so, I think that what it does is it reduces the amount
of competition because that means there is less availability of
credit in that marketplace, and competition is really what is
going to drive better terms in the subprime market.
And I think what we want to do is balance what we do to
protect consumers who have been preyed on and still preserve
that competition and in fact, increase that competition in the
marketplace.
Mr. Samuels. Some of these laws and regulations at the
local level and the State level have created difficulty for the
secondary market.
I think it is reasonable to say that if within the loan
documents and the loan papers that a secondary lender looks at
them, if they can understand that this is a predatory loan they
should back off, but if the secondary marketplace reviews the
loan documents and goes through the normal recourse, and there
is no information in the report that shows, in any way, that
that is a predatory loan.
Some of these local ordinances and laws have put a
secondary marketplace where they are liable regardless. What
detriment do you think that is going to have if we don't
clarify this in the law?
Ms. Bryce. Well, I think we have already seen some of the
rating agencies come back and say that they are not going to
rate pools of loans for mortgage-backed securities that include
loans in some of these jurisdictions.
And that essentially creates a situation where the lender
doesn't even have a choice because if you are someone like us,
we don't have a portfolio, so we have to sell our loans into
the secondary market.
And so, if the rating agencies say, ``We won't rate them,''
then essentially everybody pulls back.
And I think it is important, whatever standards there are,
they need to be clear so that each of us knows as we go about
doing our business what the rules are so that we can comply
with those rules and not have a situation where later someone
is going to second-guess whether it was right or wrong.
Mr. Samuels. I mean I have watched and listened to the
debate at the local level, city council in passing ordinance on
this, and they are well-intended. I don't argue that they have
the wrong goal in mind, but the consequence is disastrous to
people who want to own a home.
And you often look and say, ``Well, states should have
rights to make certain laws and requirements and ordinances
that people should comply with,'' but don't you think it is
time for a national standard on this?
Because why should people in one part of the country or one
specific city be a jeopardy of the concept of owning a home
just because an unintended consequence occurred by a local
ordinance or a state rule?
Don't you think at this time we have enough information
that we can clearly define predatory and subprime and come up
with a national standard to comply with?
Ms. Bryce. Well, I think certainly the federal government
has the resources to come up with a good national standard.
Mr. Samuels. I believe we do too, but don't you think it is
time that that happened?
Ms. Bryce. I think it is definitely time that we need to do
that.
And frankly, I don't see why for a consumer who is sitting
in Washington D.C. that there are different rules if you decide
to buy in Washington D.C., Maryland or Virginia.
And there are a lot of places that are the same for those
people who live in St. Louis who might decide to live in
Illinois or people in the New York metro area.
I think if you have one standard then it is also much
easier to educate consumers so that they know what their rights
are, and they know how to identify the practices that are
illegal.
Mr. Samuels. Would anybody else like to respond?
Mr. Stein. And one other benefit is our ability to lower
the costs of homeownership, because if we have one standard as
opposed to having this patchwork quilts, where our compliance
costs are just going through the roof, if we are able to do it
at all.
From a macro level we have to decide whether we are going
to stay in a jurisdiction or pull out of a jurisdiction, or
restrict our lending in a jurisdiction.
And from a micro level, looking at the borrowers that I
described in my testimony earlier, these people would not be
able to get their loans.
And so, you can look at it from the business standpoint, we
also need to look at it from the consumer standpoint and what
the benefits of these types of laws----
Mr. Bachus. Time has expired.
Mr. Samuels. In closing, Mr. Chairman, we need to have a
standard that is transparent, that it is not vague and
ambiguous, leaving the secondary market at risk for an
unintentional act on their part trying to do well.
Thank you, Mr. Chairman.
Mr. Bachus. Mr. Lucas?
Mr. Lucas of Oklahoma. Mr. Chairman, on behalf of the Ney-
Lucas bill, I think that certainly, the North Carolina standard
has done a lot of good.
And as Mr. Watts and Mr. Miller have some legislation out
there, but I think the testimony and comments have been very
enlightening here today, and it is very beneficial to me.
But I think all we are really trying to accomplish here is
to come up with some good public policy where it is a win-win
situation: where the law of unintended consequences isn't over
burdensome.
Certainly, Mr. Butts, the case you talked about, with the
Marine veteran for 25 years and what happened to him was very
egregious, and those things should never happen.
But I think we have got to be careful when we come up with
new standards that they aren't overly burdensome. We are never
going to come up with anything perfect.
I guess what I would like to hear from anyone on the dais
that would comment is is there anyone who would speak against a
uniform national standard; a state standard, Mr. Stein?
Mr. Stein. I think if, for example, the Miller-Watt bill
were passed, and that is inherently preemptive in the sense
that it overrules anything that directly conflicts with it.
Plus, it is a strong standard, so there would be no
incentive for states to pass another law because it will be an
ineffective one.
I think Mr. Miller's point really goes to the question of
federalism.
Should states be allowed to make rules on what happens
within their state? There is an interesting article by the
American Enterprise Institute that talks about if you have
something that is a local activity, where the commercial actors
there can exit, they can leave if they don't like what the
politicians do, then that is something that should be left to
the State.
If Georgia goes too far in seeking assignee liability,
which they did, then the rating agency is totally within its
rights to say, ``I am not going to rate any loans there.'' And
lenders then can't make loans there.
But what happened was the General Assembly realized that,
and they quickly corrected that problem. That was federalism at
work.
If HOEPA preempted back in 1994, North Carolina never would
have been able to say that single premium credit insurance is
an abusive product.
The question is does Congress have, while, there is a lot
of wisdom in Congress, are they necessarily going to get it
right?
A state has much greater ability to change on the fly when
there are abuses or when there are loopholes. Debt cancellation
agreements are a supplement to single premium. States can fix
that, and it is much more difficult for Congress to do so.
So I think you can have a national standard, but it should
be a floor, and I think that floor will govern most of the
country, but if North Carolina realizes that there is a single
premium credit insurance problem, it should be able to correct
that problem.
And the last point I would like to make is that it is not
like the subprime industry has been driven into the ground by
state laws. I mean it increased by 50 percent last year.
How many industries increased by 50 percent in one year? I
think that the subprime industry is very strong and vigorous,
as it should be, but if states see an abuse, they should be
able to fix it and protect their citizens.
Mr. Bachus. Okay. Others?
Mr. Butts, comments?
Mr. Theologides. If I could figure out my microphone. There
we go.
The comment on that last point, I mean we do feel that
there needs to be a national standard, that a lot of states
don't have protections comparable to some of the leading states
at this point.
But in so doing, we have to take greater about how that
standard is designed. And although I say we learned a lot from
the North Carolina experience, and we, New Century, are lending
there, and I think we learned a lot of good lessons from North
Carolina about how to structure it.
There are also a negative consequences, and you know, in
the two of our top 20 states, the two states where we have the
highest interest rates, are North Carolina and New Jersey.
Why is that? Not because our rate sheet is automatically
higher for those states, but because we are not able to use all
of the different tools that we have in the toolkit that can
offer a borrower a chance to lower their payment.
And so more gets driven into the rate, and in those states
the rates are slightly higher. Now, many of the borrowers can
make that adjustment, but there are some borrowers who can
qualify at that $1200 a month payment, but they can't at the
$1400.
And if we take away the tool, whether it is a prepayment
charge or the ability to finance some points and fees, to bring
them down to that $1200, those borrowers are not getting
credit.
And that is our belief that at the margin, in the lower
credit grades and in the smaller loan amounts, that are the
most sensitive to those variations that borrowers today in New
Jersey, in Georgia and North Carolina, are not getting access
to credit that their neighbors in neighboring states can get
today.
Mr. Bachus. Good point.
Any other comments?
Ms. Bryce. I would just add that I think the numbers are
telling, in that MBA, our estimate, is that about 6,000 lenders
are out there nationwide and about 150 of them are in the
subprime market.
And I think this is a driver of why that number is so low.
Mr. Bachus. Time has expired.
Go ahead if you would like to.
Mr. Butts. The aim here should be to have a good floor.
I think the experience in Philadelphia is instructive here,
because what we did in Philly was pass one of the strongest
predatory lending bills in the country, and it got preempted by
the State legislature and replaced with a much weaker,
ineffective bill.
And we wouldn't have had a problem with the Philadelphia
law being preempted if that law was going to be strong and
address the issues that we need to protect our constituents.
But that didn't happen in Pennsylvania's case. And so we
want the same thing here, if there will be a federal preemption
law, that it would be a strong protection in it for our
constituents.
Mr. Bachus. Well, gentlemen, I also want to thank the
gentleman from Kentucky for his hard work on this bill and
support throughout the whole process.
Mr. Miller, from North Carolina?
Mr. Miller of North Carolina. Thank you, Mr. Chairman.
Mr. Samuels?
Mr. Samuels. Yes, sir?
Mr. Miller of North Carolina. I had a question or two about
the examples that you gave on page seven of your testimony.
Mr. and Mrs. S, $94,000 loan, lend-to-buy ratio 99 percent,
30-year fixed rate of 7 percent, points in lender fees totaling
$2,500; and you say that that could not have been done under
North Carolina law.
What is the provision in North Carolina law that would
prohibit that loan?
Mr. Samuels. It was the points and fees trigger, sir.
Mr. Miller of North Carolina. Well, that is $2,500 on a
$94,000 loan that is 3.65 percent.
Mr. Samuels. There is also a prepayment penalty involved in
this, and that would have been also included in the points and
fees trigger.
Mr. Miller of North Carolina. That is not listed in the
hypothetical. There is no mention of that in the hypothetical.
Mr. Samuels. No, no.
Mr. Miller of North Carolina. Okay.
And in the second hypothetical----
Mr. Samuels. The reason I took it out, frankly, was to try
to get it under 5 minutes. But anyway, that is----
Mr. Miller of North Carolina. Okay.
But the only thing that made it illegal was the only thing,
was what you took out to shorten your testimony?
Mr. Samuels. I am sorry?
Mr. Miller of North Carolina. The only thing in the
description of this loan that would have prohibited it, under
North Carolina law, is what you took out to shorten your
testimony? I visualized a prepayment penalty.
Mr. Samuels. I know it was a prepayment penalty.
Yes, the prepaids plus the points and fees put it over the
limit.
Mr. Miller of North Carolina. Okay. Prepayment is not
listed in the facts that you set forth.
Mr. Samuels. Correct.
Mr. Miller of North Carolina. And what you set forth is
3.65 percent of the mortgage.
In the second example, again, there is a fairly long
description. It sounds like a good loan: 30-year fixed rate,
less than 7 percent. Four percent upfront, discount points,
lender fees.
Some language in here about why he needed to borrow the
money; it all sounds like good reasons. And again, the only
thing in this real case, is the prepayment penalty, is that
right?
Mr. Samuels. Well, there are four points here.
Mr. Miller of North Carolina. Okay.
Mr. Samuels. Another issue that is of concern, that is also
not here, again because of the time, has to do with affiliate
fees. These are fees that are paid to our affiliates for
closing costs, appraisals, things like that.
Mr. Miller of North Carolina. Is that in the----
Mr. Samuels. It is not in the testimony, no sir.
Mr. Miller of North Carolina. Okay. All right.
And in the last example that you gave, that would in fact,
well, apparently----
Mr. Samuels. Yes, in the written testimony, that would have
qualified.
Mr. Miller of North Carolina. Okay. Thank you.
Mr. Dana?
Mr. Dana. Yes, sir?
Mr. Miller of North Carolina. How are you, sir?
Mr. Dana. Fine.
Mr. Miller of North Carolina. Ms. Waters asked earlier if
everyone here agreed with the preemption. I think that you said
that you couldn't really state the ABA's position on that, and
then Mr. Stein, I think, leaned forward and whispered in your
ear. Was he telling you that, yes, the ABA does support
preemption?
Mr. Dana. Yes, a preemptive national standard would be
supported by the ABA.
Mr. Miller of North Carolina. That is what I thought he was
telling you.
Mr. Dana, your testimony says, ``Concerns about predatory
lending should be addressed through a unified national standard
and you will recommend that Congress actively consider
proposals for such an approach to predatory lending.''
Have you heard the phrase, ``It takes an act of Congress''?
Mr. Dana. Yes.
Mr. Miller of North Carolina. Okay. What does that mean to
you?
Mr. Dana. Lots of red tape and regulation in order to get
it done.
Mr. Miller of North Carolina. It is really hard.
Mr. Dana. Yes.
Mr. Miller of North Carolina. That is what it means to me,
too.
It used to be just a phrase and in the last year it is
taken a real meaning.
And when I am asked to describe what it is like to serve in
Congress, nimble is not one of the words that comes to my mind.
HOEPA was passed in 1994. I think almost none of the
practices we are talking about were addressed by HOEPA because
they weren't really prevalent or even existing at that time.
If we pass a law that lifts certain practices and prohibits
them, and then says no State or local government can do
anything else, when new practices come along that we haven't
thought of, it is going to take an act of Congress, isn't it?
Mr. Dana. Well, I think one of the things we have to
remember is that we are interested in making our communities
better.
We want asset building, we want wealth accumulation, we
want folks to be able to own housing when they are able to
qualify for it.
Mr. Miller of North Carolina. How are we going to get at
new abusive practices?
Yes sir, I would like an answer.
Mr. Theologides. I believe we have certainly learned a lot
over the last 10 years, and in the first cut we should knock
out the abusive practices that have been identified today, but
accompany that legislation with some authority federally to
provide some means to regulate and provide, again, a federal
standard that would be uniform nationwide to address those
abuses.
I mean we do see responses in the various agencies to
abuses, and usually they can get their faster than the
legislature can, but right now, there is no mechanism in most
of the non-prime lenders, like ourselves.
We have 50 different state licenses and so if there could
be a single approach or mechanism to deal with those abuses,
again, folks that are in it for the long haul want those
abusive practices out of the industry.
And we do want people to be nimble to respond to it, but we
would prefer to have one really good response that covered
everybody instead of 100 different ones, some of which might be
effective and some of which might not be.
Mr. Bachus. Thank you.
Mr. Sherman, then Mr. Clay, and then Mr. Scott and Mr.
Davis.
Mr. Sherman. For the first time in the history of this
committee we have two Brads in a row.
I would like to address Brad's concern that the federal
government is not terribly nimble with a couple of things.
First, whatever law we pass should give substantial
authority to whichever regulatory agency we empower because it
takes an act of Congress is a big deal, it takes a regulation
of an agency is a smaller deal.
And I think that a regulatory agency with expertise might
be about as fast as at least my state legislature.
I would point out also that while the States may look
nimble, if one or two or three states can act quickly, there
are many States that right now don't prohibit any of these
practices.
And so, we shouldn't judge the federal government against
the most nimble, we should try for most nimble for the most
Americans.
And that a federal regulator might be as nimble as the
average State and might be even more nimble than my state.
While talking on federalism, I would also point out that
perhaps we would want to have in our federal law something that
says a state could embrace plan A or plan B.
I don't think you folks can deal with 400 different
municipalities, but you may be able to deal with one or two
different approaches.
I also want to address Ms. Maloney of New York's concerns
for assignee liability.
Assignee liability I think kills the secondary market, and
the secondary market is critical.
At the same time, what we want is really solid assignor
liability. And the problem Ms. Maloney brings up is your
assignor may be a fly-by-night or an undercapitalized
operation.
What I will be proposing in the legislation is that we have
a bond or an insurance requirement. Now, if the assignor is
very solid, the insurance company should sell the insurance
very cheaply. If the assignor is, in the belief of the
insurance company, a risky operation, then they should charge a
lot for it.
But I would think that if an assignee is buying a
portfolio, where the assignor is liable and that liability has
some insurance behind it, that that ought to be enough to
ensure it protection.
I have a question for every member of the panel, and that
is, Could you identify one, two or three states that you think
has a good law that Congress ought to use as one of the models
for drafting federal law?
I guess I will start with Mr. Theologides, as I believe he
is the most anxious to respond.
Mr. Theologides. Right, well, you know, I figured I might
run out of states.
Mr. Sherman. Well, no, you are allowed to name the same
states.
Mr. Theologides. Okay. I would say----
Mr. Sherman. In fact, if you all agree that one state is
the best model you will make our life a lot easier. Go ahead.
Mr. Theologides. Well, I think there are elements, there is
no silver bullet, but there are elements, certainly, of
California, New York, and North Carolina that I think this
process needs to consider very carefully, and elements of those
laws have been very effective.
Mr. Sherman. Mr. Stein?
Mr. Stein. Yes, I think North Carolina, New Mexico and New
Jersey, and I would say that North Carolina does have assignee
liability, as long as damages are is bounded to secondary
markets the rating agencies can rate the loans and the lending
can continue, and the borrowers have a chance to save their
house, as opposed to suing a lender and perhaps collecting
money five years later.
Mr. Sherman. Yes?
Mr. Butts. North Carolina and California----
Mr. Sherman. You like California?
Mr. Butts. Oh, it is all right.
Mr. Sherman. It is a beautiful state.
Mr. Butts. I would say North Carolina and New Mexico.
Mr. Sherman. So you are naming California, New Mexico, and
North Carolina?
Next?
Mr. Dana. Congressman, we feel at the ABA that we will work
with the committee to get the right combination of whichever
laws are most prevalent.
Mr. Sherman. Next?
Ms. Bryce. Perhaps Indiana, but also I would echo that we
would be looking at what the best practices are amongst the
laws that are out there in crafting a federal standard.
Mr. Sherman. You have to start somewhere. And my fellow
Californian?
Mr. Samuels. Right, well, since I'm your fellow
Californian, I will start with California, with a few
modifications. Also New York.
I agree pretty much with what Terry said.
Mr. Sherman. Okay.
If time permits, I will ask a question of Mr. Theologides,
and that is what does New Century do to ensure that it brokers
do not engage in predatory lending?
Mr. Theologides. Well, most mortgages today originate
through brokers, and in our case, 90 percent of our loans come
through brokers.
And the fact that we have grown to be the second-largest
lender in the non-prime world without a major incident or class
action or anything shows that the broker business can be done
well. It is blocking and tackling, it is background checks, it
is a licensing process, it is monitoring the loans, both the
data and the individual files, it is listening to your borrower
complaints. It is putting the bad brokers on a watch list or
getting rid of them, and in extreme cases, even referring them
to law enforcement.
Where we struggle is, again, there is not a national
repository or database of the list of bad brokers. There are a
few state databases and there are some states that don't
regulate brokers at all.
So one thing we did like about the Ney-Lucas bill is it
provides us a place where we can make sure the broker we just
cut off didn't just change his name and moved to the
neighboring state.
I think that is another area where a national registry
would be helpful to us.
Mr. Bachus. Time has expired.
Mr. Sherman. And as part of that registry----
If I can have just 10 more seconds, is we ought to include
those who have been in other financial areas under the
jurisdiction of the committee, in particular, who have a bad
record in stock brokerage shouldn't then just be able to move
over to real estate.
And I yield back.
Mr. Bachus. Thank you.
Next is Mr. Clay.
Mr. Clay. Oh, thank you, Mr. Chairman.
And let me think the panel for being here today. Ms. Bryce,
welcome to the committee, good to see you.
Let me ask you, when a borrower applies for a loan with
your subprime unit but has the credit to qualify for a prime,
do you have procedures in place to ensure the borrower receives
a prime loan and should not subprime lenders have a policy in
place to make sure that each borrower gets the best loans that
they qualify for?
Ms. Bryce. Well, actually Congressman Clay, we don't have a
subprime unit, so that wouldn't apply to our company.
However, in a previous company that I worked with we did
have procedures for making sure that if a prime borrower was
identified that there was a process for trying to move them
into the prime area of the company.
Mr. Clay. Mr. Dana, would you like to address it?
Mr. Dana. Well, all of our borrowers get the same
treatment, whether they are subprime or prime borrowers.
The qualifications of the borrower indicate which rate they
will be charged at. The higher risk credits may indeed require
a higher rate.
Mr. Clay. Now, you know I am going to follow up with that
one.
You know, why is it that African Americans are steered at
five times the rate of white Americans to subprime loans when
they qualify for prime loans?
Mr. Dana. In our institution, which is the experience that
I can talk to, our rates are the same regardless of gender and
race.
Mr. Clay. Excuse me. These costs hundreds of thousands of
dollars over time to people, who are steered, who actually
qualify, have the same background and qualifications as the
next person.
Have you been reading these recent studies lately?
Mr. Dana. Well, we don't discriminate because of race or
ethnic background. Our responsibility is to make our community
as good as it can be. So, we will take in an application and
price it accordingly, regardless of race.
Mr. Clay. Does this not qualify as economic injustice?
Mr. Dana. Well, the fact that we are making these loans to
regardless of what their race is, is not an economic injustice.
Mr. Clay. Mr. Samuels, perhaps you could tackle it.
Mr. Samuels. Yes, sir.
We do have a process. Everybody who comes in through our
non-prime unit is run through artificial intelligence
underwriting.
If somebody looks like he or she can qualify for a prime
loan, that person is flagged and goes to a separate
underwriting unit, and we try to make that person a prime loan.
We do a very good job of making sure that we do not steer
people who could qualify for prime loans to non-prime. It is
probably the thing that we are most proud of because we know
what a big issue it is.
Mr. Clay. Thank you. It sounds like it should be standard
practice for the industry.
Mr. Theologides, would you like to add something?
Mr. Theologides. Yes. Earlier in my testimony I did note
that it has not been our experience that we are seeing
borrowers in significant numbers who would qualify for prime
and who are being steered to non-prime.
But having said that, I agree that if someone qualifies for
prime, they ought to be able to get a prime product or the best
product they qualify for.
Having said that, I think one reason that you see a higher
concentration of lower income people in non-prime, and
Americans of color, is that with lower incomes or lower wealth,
it may be more difficult.
We do see in a prime world there are higher denial rates
unfortunately for certain segments of our community. So that
may be why there is the appearance that there is a higher
concentration in non-prime, although if you look at it loan by
loan, we are not making non-prime loans to borrowers of any
color that would qualify for prime.
Mr. Clay. Okay.
I am going to come back to you.
Go ahead, Mr. Stein.
Mr. Stein. I was just going to support your point.
Harvard Joint Center for Housing Studies just released a
report where they looked at the question, ``If people living in
African American neighborhoods get subprime loans at five times
the rate of white neighborhoods, 49 percent versus 9 percent,
is that based on risk or is it based on some other factor?"
And they said it was not based on risk. I think that the
companies that you are talking to here do a good job of making
sure that they are not doing that, but in the wider subprime
arena, it is clearly happening.
Mr. Butts. I think it is also speaks to my earlier point,
that there aren't branches in our neighborhoods for people to
go to, so the choices they get are with the subprimes or the
creditors.
And they get targeted that way, that is true, and there is
racism involved here too, and that is true. But the fact still
remains that there aren't a lot of branches in mainstream
financial institutions in our neighborhood. And I think that is
one of the reasons for this.
Mr. Clay. One more question, Mr. Chairman, for Mr.
Theologides.
What credit grade do most of your borrowers, especially
those who are minorities, fall into? And are you charging
mostly of your borrowers your highest rates?
Mr. Theologides. Our borrowers, of whatever color, are run
through our same automated engine and they fall into our full
credit spectrum.
Most of our loans are in the higher subprime grades, so
those people are people that maybe have a few dings on the
credit but haven't had a recent bankruptcy or a serious
impairment.
And our average interest rate right now is under 7 percent,
and for the folks in our top credit grades, they are getting
interest rates closer to the low sixes, so we do price
according to the risk.
And I think you have hit on, obviously, a very important
point that needs to be the subject of this committee's
deliberation, is how best to deal with the fact that there are
always going to be some borrowers that walk into a branch that
maybe doesn't have the right product for them.
And maybe one idea is that to the extent it is a New
Century, well, we are a niche player, we are not Wal-Mart, we
focus on one thing.
We certainly wouldn't object if a borrower met certain
basic criteria that it looks like they might qualify for prime.
Let us give them a notice or something saying, ``You might want
to talk to another institution, they might offer a lower rate
than what we would offer.''
Mr. Clay. You all also offer financial education and
financial literacy, I understand.
How does that work?
Mr. Theologides. We have partnered with both national and
local organizations. To offer financial education nationally,
we have partnered with NCRC and Southern Christian Leadership
Conference, the Congressional Black Caucus Institute, WOW, and
the Hispanic Caucus Housing Initiative.
Again, we concur with all the panelists that an educated
borrower is in the best position to make an informed choice and
avoid being victimized. That goes without saying.
Mr. Clay. I thank you for your responses. I thank the
panel.
Thank you, Mr. Chairman.
Chairman Ney. [Presiding.] Thank you.
Mr. Scott?
Mr. Scott. Thank you very much.
Mr. Chairman, the essential question we are here to deal
with is how do we combat predatory lending without damaging the
subprime market?
I take it that everyone sitting at the panel agrees that we
need a national federal anti-predatory lending law. It is
clear.
There are 44 State and local anti-predatory lending laws.
What lessons have we learned from the experiment of these
predatory lending laws at the State level; number one on that
question.
And number two: what recommendations would you make to us
here in Congress in fashioning a federal anti-predatory lending
law that would stress what we should avoid doing?
Anyone?
Yes?
Mr. Stein. Congressman, let me start with the second
question first, as to what should be avoided.
And what I think you have heard pretty much a chorus from
the lenders is that while we do want to stop the bad guys, and
believe me we do, because it is in all of our interests to do
that, we don't want to do it in such a way as to dry up credit
or to eliminate choices and opportunities for people, who can
qualify, should be able to qualify, to obtain credit.
That is a big concern of ours, and you know one of the
things we have talked about is that there is been a
proliferation of credit in all the States, and that is true. We
have experienced historically low interest rate.
These are 40-year lows, and so everybody has been working
seven days a week, 24 hours a day to keep up with the business.
The law of physics is what goes down must come up. And so,
ultimately the interest rates are going to rise, and we have to
take a look at these laws and what the triggers are that we are
going to be imposing.
How are they going to operate when interest rates are not
at 5, 6, 7, 8 percent but they are at 7, 8, 9, 10 and above?
And we have to make sure that what we do is to preserve the
ability for people to have choices in how they manage their
financial affairs, while at the same time targeting the bad
abuses.
Chairman Ney. Okay. Thank you.
Yes?
Ms. Bryce. I would suggest that one of the things we need
to avoid are subjective standards, and I think we have seen
that in a number of the laws that have passed such that lenders
can't really know how to comply with the law, or be sure that
they are complying with the law.
So, I think that is something that we definitely need to
avoid in putting together a national standard and really look
at how do we promote a situation where more lenders are willing
to come into the subprime market to enhance competition?
Chairman Ney. Thank you.
Mr. Dana. I would agree with Ms. Bryce that we have to make
sure that our standards should be clear and not vague in
nature.
The last thing we want to do is restrict the flow of credit
to deserving individuals.
Chairman Ney. Mr. Bachus?
Mr. Bachus. I am very interested in what you have to say
Mr. Butts, because you referenced your comments by saying you
want a strong law.
Mr. Butts. Right. We had negotiations with Ameriquest
around subprime lending and we yelled and screamed at them and
fussed at them and called them predators and did all kinds of
nasty stuff to them and they finally----
Mr. Bachus. I am sorry, if you can talk into the
microphone.
Mr. Butts. All right.
--and we finally settled down and we talked to them and
what we asked from them was to become the gold standard of what
a subprime loan should look like.
And, we believe that our agreement with them sort of
accomplished that. So, you can get a subprime loan from
Ameriquest right now with a $550 fee and that is it; no points
and none of that stuff.
No pre-payment penalties, none of the really nasty stuff
that is in these bills. And they feel that they can market
their products to everybody, and so we know it can happen.
I think it is just the collective will that everybody wants
to really understand what that standard should be. And it
should be a standard that suits the marketplace that we are
going after.
Mr. Bachus. Okay.
Mr. Stein. I tell you, in North Carolina we learned a
couple of things that were important.
The first is that while disclosure and counseling are both
important, on their own they are not going to be enough.
I don't know if you saw this recent GAO study that
addressed that question, but it concluded that disclosure and
counseling will not significantly address predatory lending. If
you have someone in a refinance transaction, they might have
learned something a year ago, 2 years ago, six months ago, but
it is not like they are going to remember it every second of
the day.
And so that is not going to be enough and you are talking
about a lot of the borrowers are less sophisticated. What if
they have 75 sheets of paper then each one?
The other thing is that subprime lending is actually more
complicated than conventional lending, so to expect disclosures
and people understanding all the different loan terms as
opposed to structuring the market in a fair way is to expect
too much.
I think in North Carolina, as I mentioned before, what we
try to do is structure the market so lenders compete primarily
on price. They can charge five points a fee; they can charge
pre-payment penalties within that. They can't do single premium
credit insurance.
But, limit the amount of fees because that is where
borrowers spend their wealth, that they don't realize they are
spending, and let interest rates adjust up and down a little
bit on a floating basis.
North Carolina didn't cap interest rates any more than
federal HOEPA does, but federal HOEPA law's interest rate
trigger hasn't caused a problem.
Mr. Scott. Yes, okay.
Yes?
Mr. Theologides. Two things.
One: we learned from the Georgia experience on assignee
liability that we need to tread lightly in that area to
recognize that if unlimited assignee liability is combined with
vague standards to cap points and fees, leaders will flee the
market and Americans will be unable to get credit.
The second thing is: we also need to tread lightly in
figuring out what that right balance is in limiting points,
fees, and what we count in points and fees: prepayment
penalties, payments to brokers.
That in so doing we may unwittingly eliminate the ability
of a borrower to lower their payment and today in a low
interest rate environment that is not as big of a deal, but
believe me, when rates move up a 100 basis points, 200 basis
points, people are going to want to have every tool in the tool
chest to be able to pick a product that allows them to have a
lower payment and still either refinance their home or buy that
home.
Mr. Scott. Right.
Let me ask you this one quick question, because in Georgia,
which is my home state, and we had a good law, I felt very
concerned about the assignee liability to the secondary market.
In grappling with that, would you say one solution might be
that we assign the liability to the secondary market only for
those lending violations that can be detected from a review of
the regular loan documents?
Mr. Theologides. I think you are on the right track.
Clearly, you don't want people turning a blind eye, they have
it within their powers staring it in their face. You want them
to look at that loan and if it is abusive, push it back.
But we also need to recognize that, well, my company is in
the mortgage business, we can do that, but the teachers'
pension fund that buys our AAA-rated mortgage backed securities
really is not in a position to evaluate those loans and the
assignee liability shouldn't extend that far down the chain.
Mr. Scott. So, and in a federal law, if we did that, if we
just assign it to those that we review those regular loan
documents; you feel that would answer the bond market's
problem?
Mr. Theologides. I can't speak for them, but I believe if
there is some clear standard about when you have done enough
due diligence, what the degree of diligence is appropriate to
make sure that if one loan gets through you don't have an
Armageddon scenario.
I think they can work within those parameters, is our
experience as a lender because they are doing diligence in our
shop every week. They are looking at loan files. So we see it
on the receiving end.
I think it is the being held accountable for something that
they can't possibly detect, or that would require them to
review every page of every single loan of the hundreds of
thousands of loans they buy that becomes just very difficult
for them to deal with in it.
And the way they deal with it is essentially, ``We are not
going to buy your Georgia loans, let us buy them from the other
49 states.''
Mr. Scott. I think he wanted to comment. One more point,
Mr. Chairman.
Chairman Ney. That was your fourth ``one more point, Mr.
Chairman.''
Mr. Scott. This one is very important, Mr. Chairman.
Chairman Ney. Well then, we had better hear it.
Mr. Scott. All right. I hope it lives up to that billing.
Mr. Samuels. In Georgia assignee liability clearly went too
far. The images were potentially unlimited, but then the State
senate passed a bill, which still provided for assignee
liability, it just bounded that. It said it wouldn't be greater
if somebody tried not to buy a high-cost loan.
It wouldn't be greater than the amount of the loan
outstanding and some fees. And it didn't limit it just to what
is written on the loan document.
Problem is, if you do that, what you are saying to an
innocent home buyer is, ``You have a predatory loan and we are
so sorry that in this case the lender sold the loan but we are
going to foreclose on you, you are going to lose your house,
you are going to lose all your wealth. Three, 4, 5 years later
perhaps, because there is not mandatory arbitration, you might
be able to sue against the lender, if they are still there, if
they still have money. And get some money, but you have a
destroyed credit rating.''
So you need assignee liability. You can have it, but these
rating agencies are going to rate loans if it is bounded and
you can't have class actions when it is small. And that is what
Georgia passed in their state senate and that worked fine.
But the person in the pension funds who buys the mortgage-
backed security, they are never going to face assignee
liabilities. The trust is perhaps going to face it.
So you can't limit it to just to what is on the document.
It sounds good, but if you have an innocent homebuyer who was
victimized, you have an innocent secondary market purchaser,
that innocent secondary market purchaser can price for that
risk and it is minuscule because it is limited to the amount of
the loan and there aren't going to be many cases that get
through there.
Mr. Scott. All right.
My final 15 seconds, Mr. Chairman, was this point that I
just had to respond to.
Earlier, my colleague, Mr. Clay, mentioned about the
peculiar emphasis unfortunately of predatory lending on the
African American community. I think it is very, very important
that we make sure we get the record straight on this that race
is unfortunately a real reason why we have predatory lending.
African American communities are targeted.
They are purposely targeted. They are just not targeted at
low income, they are targeted up and down the strata and they
are targeted precisely because they are African American
communities.
A lot of that has to do with the low savings rate, another
part of financial literacy. I bring this point up because
myself, Chairman Ney and some other members of this committee
have been very, very strong on the application of the two-way
toll-free number.
And it is very critical in that community because when they
are targeted, folks come, they leave a card. And if we have a
1-800 number, we have a way of lassoing in and being preemptive
and getting a hold of some of these predators before the damage
is done.
And I would think that if I get an assessment for you all
just to give us your feelings on the value of that 1-800 number
and providing that two-way dialogue and that two-way help.
Would that be a help as we move forward in that predatory
lending?
Wonderful. Thank you. I got everybody shaking their head.
Thank you, Mr. Chairman.
Mr. Bachus. Thank you.
And one problem we do have with the five-minute rule is it
does very much limit substantive discussion and particularly
when you have a member like Mr. Scott who is knowledgeable on
the subject, who had participated in legislation when he was a
member of the Georgia legislature, so I am glad to give the
extra time to my colleague.
Mr. Scott. Thank you very much, Mr. Chairman. I appreciate
that and God bless you.
Mr. Bachus. Thank you.
Now your partner to the right there, Mr. Davis, not right
by political parties but in direction, he on the other hand,
since he has been elected he and I share the Birmingham
newspaper.
And he has totally preempted any publicity that I was able
to get in that newspaper. I am going to yield to him 30
seconds.
[Laughter.]
The gentleman from Alabama has five minutes.
Mr. Davis. Thank you, Mr. Bachus.
And by the way, we have been keeping time today; 30 seconds
would be about five minutes.
For a minute I thought Mr. Scott was running for the Senate
from Georgia, too.
Let me, if I can go back to the questions that Mr. Clay was
getting at earlier and try to get a little bit more specificity
from all of you.
I understand that no one sitting on this panel is going to
acknowledge that any of your institutions are engaged in
predatory lending, so that is not the question I am posing to
you.
Do any of you disagree with the statistics that Mr. Clay
cited? And let me hone in on just one part of those specifics.
I understand that you are going to have a higher rate of
African American subprime loans, in part because you have a
wealth gap. I understand, as I suspect Mr. Clay understands
that.
What is more striking though is that as Mr. Scott just
alluded you have a significant amount of subprime lending and
most likely predatory lending as well that goes on in the upper
income black community.
In fact, the statistics that I have seen are that you are
twice as likely to find a subprime loan in affluent black
neighborhoods than in low-income white neighborhoods.
Now, first of all, that appears to be a complete deviation
from any kind of market reality. Obviously, there is no reason
one would think at all that you would have subprime loans in a
fairly high income market.
It is typically subprime loans, as I understand them, are
intended for low-income individuals with credit problems,
recognizing some people may make a bad choice to get in the
market, there is no question that is who they are intended for.
So, let me ask you this question. Why is this happening?
Because as I understand that everyone says my bank is not doing
it, my institution is not doing it, but can someone grapple
with just this question?
What set of practices are happening in this country that
are leading to such a high subprime rate in affluent black
neighborhoods?
Yes sir?
Mr. Theologides. It is a very difficult question to answer,
but let me take a cut at it.
Two things. One: most of our borrowers contrary to popular
belief are not low-income.
So, white or any color, our loans are actually not
concentrated in the low-income area, although they do share a
common element of presenting a higher risk for credit or for
other reasons.
Two: even across income strata, our data, our lending data
do show that even in the higher income grades our African
American applicants are falling into a lower credit grades when
run through our automated scoring engine. And believe me; we
spend a lot of time trying to figure out why that is.
Based on our initial analysis, it is not necessarily
income, it may be wealth, it may be credit, it may be in the
case of the Hispanic community, there are high self-employment
rates that we see, too.
And no doubt there is some element clearly of the predators
have targeted communities of color and the elderly. I mean,
that is some element.
Mr. Davis. Let me ask you this question. I have touched
off; let me ask you this question.
Do any of you have any data on the degree of subprime
lending in African American communities that have good credit
histories? Has anybody looked at that very narrow question?
Mr. Theologides. Yes, we did look at that narrowly. We ran
through all of our borrowers through Fannie and Freddie proxy
to see how many and of our African-American borrowers, 2
percent of them could potentially have met those guidelines.
So, 98 percent of them are squarely in need of a non-prime
product to hopefully migrate up into that market.
But, again I think more analysis needs to be done. I think
the studies that look at income oftentimes are looking at
income by census tract, so we are not comparing $100,000 high-
income white to necessarily $100,000 high-income minority.
Mr. Davis. Mr. Butts, do you agree with that? Because you
have been the person on the panel who is been most direct about
the prevalence of subprime on the black community and
presumably part of your argument is that it is not just a low-
income, high credit risk areas, but that it pervades into
categories of lenders or borrowers, frankly, who don't need
subprime at all.
Are you the same way that this gentleman is about this
issue?
Mr. Butts. No, I think this is probably going to sound
politic of me, but I think part of what is going on here is
this way.
What is instructive is I had a conversation with somebody
one time, a subprime marketer, and what he told me was that
they want to be number one the bank of opportunity when
somebody needs money and they want to market that way.
And the other part is that they start at yes, where
everybody else starts at no then the risk is later according to
what things accept at yes.
And a lot of times when people are marketing to our
community and are talking to us around those terms that are
already set, that they are not going to give us this loan.
And I know I can't qualify for it, because this happened to
me or that happened to me or whatever, and then when somebody
comes along and says yes, you can have this loan, it is just
you are going to have to pay through the nose to get it, but
you can have this loan, that makes it easier to be marketed to
that way and I think maybe that is partly one of the things
that they understand in a really going after that market
because of that.
I mean, they make it easy.
Mr. Davis. Let me try to quickly----
Chairman Ney. Let me interrupt just a second.
Mr. Dana you have a flight?
Mr. Dana. Yes, I do.
Chairman Ney. So we are going to excuse you at this time.
Mr. Dana. Thank you very much.
Chairman Ney. Thank you.
Mr. Davis. Let me just ask one question on a slightly
different topic since Mr. Dana is leaving I might direct this
to you, Ms. Bryce.
Let me shift to a different area altogether.
All of you have embraced the idea of having a national
standard, and I recognize there is some disagreement about what
the substance and content of that standard would be.
Is it your position, Ms. Bryce, the national standard would
be a floor or a ceiling?
Would it be in effect the minimum that states would have to
do or the minimum that rather lenders would have to observe or
would you suggest leaving any leeway for the States to add
their own set of regulations?
Ms. Bryce. Well, I think our position is that a national
standard should include federal preemption. So that it is
clear, many of us are national lenders and it would allow us to
have one standard to work from in all jurisdictions.
It would mean that people who live in sort of multi-
jurisdictional areas, whether it is in D.C. and you are looking
at whether you want to be in Maryland or Virginia or D.C. that
there is one standard that would allow for consumer education
across the board with one standard.
So we are really looking at it from the point of view of
saying one standard will enhance competition will allow for
better consumer education but that should be the standard
nationwide.
Mr. Davis. And let me ask one quick question before I turn
my time back.
Mr. Miller was making a point earlier that I want at least
one of you to respond to, which is that obviously sometimes
Congress has a glacial pace; it takes a while for things to
happen around here. State legislatures often have the ability
to get things done at a much quicker pace.
Mr. Miller's observation was why should we restrict or
prohibit the States from being innovative, from doing some
things that frankly might be illustrative to us sitting here in
Washington?
Why not give the States some capacity to at least
experiment in some of these areas?
That strikes me as a fairly reasonable proposition on his
part. I recognize the counter argument that you want uniformity
but I think everybody on this panel recognizes that a whole
host of legal areas we don't have uniformity.
And that all the many areas in which we don't have
uniformity certainly cost somebody somewhere and they produce
litigation costs, et cetera, et cetera. But yet we still
tolerate that in our legal system.
So can any of you, before I turn my time back, speak to Mr.
Miller's observation that the States have some capacity to
innovate, and to be laboratories in this area?
Yes, sir.
Mr. Samuels. One of the things that we can't lose sight of
is that we have the best home finance system in the world.
Countrywide has an operation in the U.K. and we see the
difference between what we have here and what they have
overseas.
It is really the envy of the entire world and one of the
reasons that we have that is because of the national system
that we have. Somebody can buy a house in Oregon and the
financing for that will probably come from Florida or even from
Japan.
Mr. Davis. Has the North Carolina innovations somehow
dramatically undermined the market in that state?
Mr. Samuels. Well, in our view I think one of the issues
that we have been talking about is there has been a broad
increase in lending but there is a group sort of at the top end
that should be able to qualify for a loan that should be able
to have a choice as to how to reduce their monthly payments,
but because of where the triggers are set, they cannot.
And that is the concern that we have. Our view is that we
should have those triggers set at a more reasonable place, and
at the same time one thing I want to address is we talked
about, you know, some people want stronger laws.
We want strong laws, too, and that is very important but we
want the strength of those laws directed at the bad acts, at
somebody taking a woman who has a social security payment and
giving her a loan with a monthly payment equal to her social
security payment.
That is a bad act. But to say that we need a strong law to
cut off a group of people who could qualify for the loan under
any of our underwriting standards because we set the trigger at
too low a level, I think is the wrong approach.
I think we need to target the bad acts with very strong
legislation while at the same time preserving that choice and
accessibility to credit.
Mr. Davis. Thank you, Mr. Chairman.
Chairman Ney. Thank you. Mr. Crowley, do you have a
question?
Mr. Crowley. Thank you, Chairman.
First let me thank you, Mr. Chairman, for holding this
hearing on this issue. As I have stated before in committee, I
believe that this is a very, very important issue and deserves
the hearings that are scheduled to take place, and it is good
to see the panel before us come from all angles on this issue.
I for one believe that the non-prime and subprime market is
actually afforded opportunities for wealth where in the past
that opportunity had been denied because of a lack of capital
access.
My constituencies in New York City, and especially in the
southern part of the Bronx, where I have seen people who had
nothing because of subprime be able to afford a moderately
priced home 15 or 20 years ago now have seen a great deal of
wealth created because of their ability to access that capital
in the first place.
So I think this really is for many an inner city issue. And
therefore I am very, very concerned about how we walk and how
we tread on this issue so as not to diminish the opportunity
for capital where in the past it had been denied.
But I do want to follow up. My friend from Alabama and I am
working on some legislation to address some of the issues that
he was raising before and that is because of what I believe is
disturbing an issue that was highlighted and I believe by ACORN
and the separate and equal predatory lending in America report.
And that is when its happening reportedly between ten and
35 percent, and I have heard numbers much lower than that, of
A-minus subprime borrowers actually qualify for prime rate
receive subprime loans that are more expensive and especially
as it pertains to the African-American community and apparently
may be the target oftentimes of that practice.
Let me just ask the lenders if they could talk about the
data as they perceive it and how it was put together and how we
address it. And then also maybe the consumer groups as to how
they compile that information.
Mr. Theologides, maybe you can address that and what they
think can be done to address it as well.
Mr. Theologides. I would be happy to start. I mean, again,
that is a very important issue and believe me we in the
industry are reading those reports very carefully and I think
that is absolutely appropriate for this committee to try to
address both analyze that and figure out a way to address the
issue that sometimes referred to as steering borrowers who
would qualify for prime being steered into a higher cost
subprime or non-prime product.
Mr. Crowley. Do you think that 10 to 35 percent of the A-
minus is an accurate figure?
Mr. Theologides. I do not think that is an accurate figure;
I think that is from 1996 from a Freddie number.
In my written testimony, sir, we analyzed our data and we
think we are representative of the industry; we are the second
largest; we are 8 percent of the market. And that number was
closer to 3 to 3.5 on paper could potentially have qualified
for it.
Now for Countrywide, they offer a full range of products.
We are a niche player and we specialize at being a low cost
provider in non-primes. To address your question, one solution
might be that to the extent a lender doesn't offer a full array
of products that a borrower appears on paper to have the
characteristics that might qualify for prime let them know.
And give them information either whether it is to an 800
number, like Congressman Scott was saying, or through some form
of notice because, again, I think that is something that we can
grapple with through a national legislative approach to address
that issue and clearly part of it is people preying on someone
that might not be as familiar with the process and part of it
is just luck of the draw.
There aren't as many prime branches today in the inner
cities. And so I think absolutely that is something that ought
to be dealt with in the context of this national standard.
It is my understanding that this data came from the data.
And that is how we came up with it; analyzing the metropolitan
area. That is where we got the figures.
Mr. Stein. That is one of the issues, having complete data
because if all you look at is income that does not tell the
whole story.
Our situation is different than New Century's because as
was mentioned we do have a full pantheon of products.
Everybody who enters our company through a non-prime
channel is put through artificial underwriting and processing
and if it looks like they can qualify for a prime loan, they
are flat and they go to a certain underwriting group that tries
to get them a prime loan.
Now, oftentimes what happens is the borrower says no I
don't want to provide this documentation or I need a higher
loan to value ratio or I want to take more cash out of my home
than Freddie guidelines would allow.
So that even though they could qualify for a prime loan, in
fact they are a non-prime borrower and the loan that they end
up choosing is a non-prime borrower and they understand that
because of the characteristic that they have chosen that they
may not qualify under the underwriting standards that Fannie
and Freddie and the secondary markets you know has implemented.
But we do a pretty good job of making sure that people who
can qualify under the prime standards are given the opportunity
of a prime loan.
Mr. Crowley. Ms. Bryce.
Ms. Bryce. I do think it is an issue to just focus any
study on the HMDA data by itself without looking at credit
scores for various groups and also looking at debt to income
ratios and other underwriting factors.
Our economists have been looking at some of those studies
and we could certainly provide their comments after the
hearing. There are some other studies that are in development,
as I understand it.
Professor Bostic, who is at the University of Southern
California, has been looking at the credit scores of different
African American sorts of groups of economic groups and one of
the interesting things that seems to be coming out of his study
is that the credit scores of African Americans with high school
educations appear to be higher than those with college
educations.
I don't know what the reasons for that will be or if he
will have a reason for that, but those are kind of interesting
studies that we are tracking to try to get a better
understanding of what might be going on in the marketplace.
But I think you have to look at those underwriting factors
in order to really evaluate the issue and figure out what that
percentage really is.
Chairman Ney. Time is up, Mr. Crowley.
Ms. Bryce. I think she is right that you need to look at
risks; you can't just look at income.
In fact, there is an affiliate of the Mortgage Bankers
Association, the Research Housing Institute I think it was
called, that did a study that looked at home purchase subprime
loans, and it had access to credits, and it compared African
Americans and whites and found that for the exact same risks
the chances of an African American borrower getting a subprime
loan were a third higher.
And so this steering, as you were mentioning clearly goes
on. It is hard to quantify in some companies the ones here do a
much better job at not doing that. But it is a clearly
significant problem.
The other study that looks at risk as opposed to just
income is the UNP study of North Carolina and what they found
was after the law was in effect, the percentage of loans to
borrowers above 660 credit scores who could potentially get a
conventional loan decreased by 28 percent, while conventional
lending in the State increased by 40 percent.
So, what you found in North Carolina after the law was set
for very good standards, I think was that there was less of
this steering that went on.
And I think the New York law has been very effective too.
Your banking commissioner said that the rates are down but that
credit access is still widely available. I think that also has
a lot to commend it.
Chairman Ney. Okay, thank you.
I am going to forego my question, because we have a second
panel, but if anybody has looked at any statistical trends of
more individuals going into subprime. It didn't matter if the
neighborhood was white or black or Asian or you know any----
I don't want to take a lot of time.
Mr. Theologides. Well we at CFAL did commission a
nationally recognized firm to analyze this issue, because we
recognized the potential for this and we will be issuing that
shortly.
I have seen sort of the preliminary data, yes. I think that
will be informative and advance the discussion for all of us
panelists here.
Chairman Ney. Well, I thank the panel for all of your time
and a second panel for waiting, so we will move on.
I want to thank the first panel for your time here in the
Capitol. Thank you.
Move on to panel two. Thank you we will start with panel
two.
Panelists testifying, there is Charles W. Calomiris.
He is a seasoned professor and author who has written and
published numerous books in American Economic Review, articles
detailing the experience of the U.S. and international
financial markets.
He currently serves as the Henry Kaufman professor of
financial institutions at the Columbia University Graduate
School of Business, also the professor at Columbia's School of
International Public Affairs.
Mr. Calomiris is the recipient of several research grants,
and serves as the co-director of the project on financial
deregulation at the American Enterprise Institute and as the
chairman of the board of the Greater Atlantic Financial
Corporation of Publicly Traded Banks based here in Washington.
I want to welcome you.
Anthony Yezer is a member of the Department of Economics at
George Washington University where he directs the Center for
Economic Research.
His research interests include the measurement and
determinants of credit risk and lending, the effects of
regulations on credit supply, and models of the demand supply
of credit to households.
His articles have appeared in the Journal of Finance, the
Journal of Real Estate Finance and Economics and Journal of Law
and Economics, just to name a few.
He currently serves on the editorial boards of five
journals, and is editor of the American Real Estate and Urban
Economics, association monograph series.
Norma Garcia is a senior attorney at the West Coast
regional office of Consumer's Union, a non-profit publisher of
Consumer's Report magazine.
Her specialty at Consumer's Union is as an advocate on
behalf of low-income consumers, especially in the areas of
credit and finance.
She is a published author of ``Dirty Deeds, Abuses and
Fraudulent Practices in California's Own Equity Market'' and
``The Hard Sell: Combating Home Equity Lending Fraud in
California'' and ``Fighting Home Equity Lending Fraud and Abuse
in California.''
She was Consumer Union's principle lobbyist for the passage
of S.B. 2045 and A.B. 489, legislation adopting a statewide
anti-predatory lending law.
Mr. Geoff Smith is the project director at the Woodstock
Institute. Woodstock is a 30-year-old Chicago-based non-profit
organization that works locally and nationally to promote
reinvestment and economic development to lower income and
minority communities.
Mr. Smith received his Master's in geography from the
University of Wisconsin, Madison, in July of 2000. Prior to
becoming project director, he served as a research project
associate at the Woodstock Institute, where he worked on
community development issues.
Dr. Michael E. Staten is a distinguished professor and
director of the Credit Research Center at the McDonough School
of Business at Georgetown University.
Mr. Staten has designed and conducted projects on a wide
range of policy issues involving markets for consumer credit
and financial services.
He is an expert witness on credit and insurance issues and
has published numerous articles in various journals, including
the American Economic Review, the Journal of Law and Economics,
and the Journal of Health and Economics, just to name a few.
I want to thank all of you. We will begin with you, Mr.
Calomiris.
STATEMENT OF CHARLES W. CALOMIRIS, HENRY KAUFMAN PROFESSOR OF
FINANCIAL INSTITUTIONS, COLUMBIA UNIVERSITY
Mr. Calomiris. Thank you, Mr. Chairman. It is a pleasure to
be here today.
With your permission, I would actually like to depart from
my written comments, which I would like to have entered into
the record.
Chairman Ney. Without objection.
Mr. Calomiris. But, having sat through the first panel, I
thought that it would be useful to follow up on an excellent
discussion on regulatory measures, which is really not the
focus of my prepared statement, because I didn't think that was
the focus of our discussion today.
But I do want to talk about it a little bit.
I just would preface my remarks by saying that I think
everyone understands there has been remarkable progress and
growth in subprime lending.
Access to credit markets for minorities, for low income
people, but also more broadly, more flexibility for everyone,
and subprime is not just about credit to the poor, not just
about credit to minorities, it is more flexible credit for
everyone.
And I think that everyone is in agreement that this is a
very valuable resource in our economy, and I think also people
understand that the technological improvements that have helped
that to happen are really two kinds: they are statistical
scoring models that have permitted the quantification of risk,
the pricing of risks rather than the yes or no of risks.
And, secondly, it has been the development of
securitization markets that have added to the low financing
costs in this market, and also the competition in this market.
That is why there is so much competition right now. And that is
why we have a national market because of those securities
markets that are standing behind the developments in this area.
So consumer finance, mortgage finance, has become a boom to
the American consumer, particularly in the last decade, because
of those two major innovations having to do with the way it is
financed ultimately in the capital markets and the way it is
scored.
And those two, of course, are closely related. And I think
that we all, I hope, share a goal that we want to see a
continuation of a national mortgage market. National in its
competitive scope, national in its opportunities for everyone.
And so we want to balance that goal with the goal of
avoiding predatory practices. So I just want to suggest a few
ideas that I think could be very helpful and that I have been
suggesting for a few years, which I think might be useful as
you are considering any bill.
First of all, as the first panel made clear, what good
lenders want is safe harbor. They want to know that if they act
appropriately that there isn't some hidden liability hiding out
there that is going to come back and bite them.
So I think that clear rules that establish safe harbors so
that if they know that if they go through a set of very
specific practices that they are going to actually not be
treated unfairly themselves.
I think that is important. A second principle has to do
with disclosure. Everyone I think recognizes we have a massive
amount of disclosure in the mortgage market right now.
We probably need less disclosure in the sense of volume of
paper. I think anyone who has been through a mortgage, as I
have been sees that it becomes trivialized. You stop paying
attention to the paper, because there is just too much of it.
What we need is meaningful disclosure. And I think we need
disclosure that particularly addresses Mr. Clay's question.
How do we create disclosure that helps someone who is not a
sophisticated borrower at the time of the mortgage signing know
that he or she is being overcharged?
I have a very specific concrete suggestion that I have been
making for a few years and I haven't been able to get much
response on it. Here is my suggestion.
Suppose that we had a common statistical sample of
borrowers and so if you know what your credit score is, if you
know your credit score, and you know your loan to value ratio,
there would be one piece of paper that would tell you, the
borrower, that people with that credit score and that loan to
value ratio on average get the following interest rate, the
following points, the following pre-payment penalty, for a
mortgage of that term.
Chairman Ney. I don't want to interrupt you, but it seems
as a good roll that you are on, and it is good but my----
Mr. Calomiris. Am I going over time?
Chairman Ney. No, no, I think it is fascinating. But I just
wanted to ask would this, also. We had talked earlier about
whether you had a subsidy of type or CRA or whatever. Would
this be just for everything market-based?
Mr. Calomiris. This is for the population. What I have in
mind, whether it be some sort of measure coming from some kind
of overall market data base and, of course, the particular
borrower may be getting better terms if it is a CRA-related
loan where there is some subsidy.
Or the borrower may be getting worse terms because the
borrower's credit is really worse than the credit score
reflects.
But, nonetheless, you wouldn't have the opportunity for the
egregious kinds of violations that Mr. Clay and others have
been talking about.
If you simply as a borrower were able to see what on
average people of your credit score and your loan to value
ratio were getting in the market.
To me, that is one page and it would be an extremely
meaningful disclosure and it is not beyond our ability to do
it.
And I think that it is much more effective than what I call
in my testimony stealth usury laws. Laws that have the
undesired consequence that many of the first panelists were
talking about, which is to effectively deny credit access to
people who need to pay very high interest rates, that denial
happens because the costs imposed by the State laws, like North
Carolina's.
The costs of compliance basically have a chilling effect on
the supply of credit to high cost mortgage lenders and so, for
high cost lending, people simply withdraw from that little
niche.
So, I think that we want to have more and better kinds of
disclosure, maybe less volume of disclosure and I think we want
to avoid stealth usury laws, which I think have been very
adverse in their consequences for certain small niches of
borrowers.
I also want to talk a little bit as an economist and as
someone who has done, probably with all due modesty, more
statistical research than anybody who has been before you
today, about the quality of the statistical research that has
been described which is, to put it mildly, highly uneven.
Many of these studies are not controlling properly for all
the variables one would want to control for. And they also
define predatory lending in different ways.
So, studies that tend to be cited by people who like what I
described as stealth usury laws, States' laws that have a very
negative effect on supply of credit to certain niches, those
people tend to cite studies that really define as predatory
loans that are expensive.
They describe them as equity-stripping.
These are highly judgmental categories, and I think that
part of the problem here is when we get these different views
of the statistical evidence it is really not different
statistics, it is different interpretations, different
definitions and different standards for adequate control.
So I really caution you not to take those discussions too
seriously. I also caution you not to think that it is a good
idea to be too prohibitive of pre-payment penalties.
Pre-payment penalties can reduce the cost of borrowing
because pre-payment risk in the mortgage market in fact on
average is of a greater size and of a greater consequence for
lenders than default risk.
And so pre-payment risk is mitigated by pre-payment
penalties and reduces borrowing costs. Be very careful about
the arguments of people who tell you that they want to get rid
of pre-payment penalties or sharply limit them. That can hurt
borrowers.
I think another set of rules that I think are worth
exploring are not just counseling on a voluntary basis, which I
agree with, but also budgeting more money for testers.
If you are going to establish standards, it makes sense to
actually also budget for people to go out and see if they are
being complied with. If you want to find the bad lenders, a
great way to do it is by sending people out as testers and I
think we should do more of that.
I don't want to go over my time; I know it is late in the
day, so I will pretty much stop on that point except I want to
make one final comment about federalism.
Dual banking has served the United States well for 140
years.
I do see the advantage to allowing the finance companies
who are not themselves under the OCC to enjoy a uniform
national standard and I haven't made up my mind on this issue,
but I do want to point out that there is an advantage, as
Congressman Sanders mentioned, of some kind of federalism.
The way we have done that for the last 140 years in the
United States is that we have federally-chartered institutions
that are under a uniform national standard.
And that is what I think the Comptroller in particular has
insured with his, I think, quite proper preemptions. But we
have also allowed the States to regulate non-federally
chartered institutions.
So it seems to me that there may be some regulations or
some standards that we want to put into fair lending laws for
the whole nation but that some of the regulations of the
lenders might want to be different between the federally
regulated lenders and the others.
Thank you very much.
[The prepared statement of Charles W. Calomiris can be
found on page 134 in the appendix.]
Chairman Ney. Thank you.
Mr. Yezer?
STATEMENT OF ANTHONY YEZER, PROFESSOR, DEPARTMENT OF ECONOMICS,
GEORGE WASHINGTON UNIVERSITY
Mr. Yezer. Sorry.
Chairman Ney. Whenever you are ready.
Mr. Yezer. I would like to thank the----
Chairman Ney. If you could move the mike a little closer.
Mr. Yezer. I would like to thank the chairman and the
committee for inviting me to make these comments.
My colleague here, my written testimony, I certainly stand
behind, but in view of the discussion this morning and my
enhanced knowledge of the committee's task, I want to part from
those comments.
I was reminded as I heard the discussion of my involvement
as an expert on the credit practices rule. Now this is a
Federal Trade Commission rule.
It goes back to when we started studying it in about 1978
and the notion of the credit practices rule was that there were
abusive practices in credit remedies applied to consumer credit
and the notion was that the Federal Trade Commission should
seek to regulate these.
Now, as an expert economist testifying for the commission,
I was given a wonderful data set which was a stratified random
sample of the laws around the country for loans from around the
country and their experience and of lenders.
And I could see the variation and regulations across the
States and I could find which limits on credit or remedies
appeared to have little or no effect on the availability of
credit and which ones really affected the supply: the notion
being that you could restrict lots of credit or remedies that
had very little effect on the cost of credit, but you didn't
want to restrict ones that would substantially raise the cost
of credit.
I did that with my colleagues, the GW when most of our
recommendations were adopted. By the way, the papers are also
published in academic journals so the academic folks liked it.
And while there were lots of screenings from both sides
about our recommendations, I think overall the trade regulation
rule worked out pretty well. So this is a sort of background.
Now we come to----
Chairman Ney. I am sorry. The recommendations were in which
article?
You talk about the recommendations----
Mr. Yezer. Okay. Well, the Credit Practices Rule, which was
adopted in 1981 by the Federal Trade Commission governing
creditor remedies. The two papers that have most of it in; I
could give you the citations.
Chairman Ney. Okay. Yes, if we could get that.
Mr. Yezer. And plus, we had a huge volume of testimony.
So, now we turn to subprime lending and subprime lending I
sort of defined in my testimony as something that is about 125
basis points or more above prime. And then we look at
statements about that market and my first comment is we have no
clue.
We don't know how much subprime lending there is. If you
look at property records, you will see the name of the
mortgagee.
When you look at actual property records and look at names
of mortgagees, especially in inner city areas of large cities,
you find an awful lot of brand X mortgagees.
These are not covered by anything, they are not reporting
to anybody. They are not in any data set. We don't know what is
happening there, but I have my suspicions, okay?
Other data sets are really problematic. HMDA clearly gives
false impressions of the growth of subprime lending because
HMDA keeps adding lenders and not only that existing lenders
lend through HMDA who are recently added report larger and
larger volumes of loans simply because they are computerizing
their databases.
So all the entrances based on HMDA are sort of a
statistical artifact of the sampling procedure. Other databases
are also partial.
Now, could we expand HMDA? Well the problem with expanding
HMDA and getting more reporting publicly like that is there is
already a big disclosure problem in HMDA.
I can go to property transfer records and I can match up a
loan amount on the census tract with the name of a lender and
HMDA and I can identify the mortgages in the individual HMDA
records of half the members of Congress.
And probably 60 percent of the public because I have done
that. Okay?
So if you expand HMDA the more and more small lenders there
is just no privacy in the disclosure at all.
Now, in addition, you are still not going to get to the
brand X people so we don't know how much lending there is and
we don't know what its characteristics are and the worst of it
is probably opaque.
To the extent there has been some testing and I recently
along with my statement, edited a two volume special issue of
the Journal of Real Estate Finance and Economics where we have
about 11 scholarly papers on subprime lending that have passed
the peer referee process and will be published, and that
particular exercise did demonstrate that economists can make
some inferences about what is going on in the subprime market.
We have two independent studies; by the way of North
Carolina that indicate insofar as we can test indirectly the
regulations there significantly reduce the availability of
credit.
These are in a peer referee journal, as opposed to the
papers that were referred to previously, and I share my
colleague's comments on their academic merit.
Okay, now, in terms of subprime lending, what can we infer
even if the data was imperfect? Well the first thing is it sort
of looks like the markets we teach our freshmen in economics.
That is, people with better credit scores tend to pay less.
People with worse credit scores pay more. Some prime lenders
are particularly profitable and there appears to be an active
competition in subprime lending. All of that looks good.
And by the way, in addition to response to lending appears
to be to withdraw from the markets. So all that looks like just
what we teach our freshmen.
There are some strange features of the subprime markets but
some of them you can understand with a little bit of economic
theory like the fact that subprime lenders have a higher
rejection rate and a higher interest rate. But, you can
actually work that out and you can see why that is the case.
So, a lot of features of the subprime market sort of look
okay as a market. I have two concerns. The first one hasn't
been mentioned: that is a home equity trap and the demand for
subprime mortgages.
We encourage Americans to mortgage themselves up to their
eyeballs and then spend the next 20 years pre-paying their
mortgage and building up all sorts of wealth in their home.
What happens if you lose your spouse, lose your job or lose
your health? Well, guess what? You have all that equity in the
home; you don't qualify for prime credit any more. So you have
to go to the subprime market. Part of what is happening is a
sort of got you.
Because we have got a lot of households in America who have
bought the home equity lie. They shouldn't be maximizing home
equity. They do it at their peril. It is not liquid and you can
easily get in a home equity trap and there is a lot of tragic
stories there.
[The prepared statement of Anthony M. Yezer can be found on
page 267 in the appendix.]
Chairman Ney. You ran over the time.
We will move on to other witnesses then we will come back
and I want to pick up that thought about I might be in that
equity trap so I want to ask you about that.
Ms. Garcia.
STATEMENT OF NORMA GARCIA, SENIOR ATTORNEY, WEST COAST REGIONAL
OFFICE OF CONSUMERS' UNION
Ms. Garcia. Good afternoon, Mr. Chairman, members of the
staff.
My name is Norma Garcia. I am a senior attorney with
Consumer's Union's West Coast office in San Francisco,
California.
Consumer's Union believes that home ownership is a critical
priority for our country and that protecting the equity that
citizens have accumulated in their homes is critical to every
state's prosperity and well being.
People who own their homes and have built up equity in
their homes have a real financial stake in their communities.
They are the glue, oftentimes, that holds communities together
and it is their home equity that often forms the greatest
source of their personal wealth.
It is no secret that families in America have a lot of
equity built up in their homes. As the previous witness just
said, that equity for many represents the greatest wealth they
will ever know.
It is very significant for all homeowners with 45.2 percent
net worth as a figure that home equity represents for the
average homeowner and for Latino and African American families
home ownership is even more vital as it represents
approximately 60 percent of net worth for people from those
communities.
So the nation as a whole home equity accounted for 44
percent of the nation's total net worth. That is a lot of money
of our economy tied up in home equity.
And it is for this reason that Consumer's Union is very
concerned with protecting home equity. There is been a lot of
discussion today about the subprime lending market being
available to help homeowners get into homes, and that is a fine
thing.
To the extent that homeowners aren't paying more for their
mortgages than they should, definitely the subprime market is
serving a need.
But there is a bigger concern here that no one has really
made a distinction about, and that has to do with how does the
subprime lending market effect the existing equity that
homeowners have built up over the years.
And it is for this reason after asking this question that
we looked at the question of what does the growth in the
subprime market mean to preserving home equity and to
preserving home ownership.
You have heard statistics today that have told you about
how large this market has grown nationally, and I want to focus
in on a couple of states that Consumer's Union actively works
in. We have advocacy offices in Texas and in California.
In the State of Texas, the subprime and refinancing market
has grown substantially. In 1997, there were 2512 subprime
refinance loans made in Texas. In the year 2000, there were
23,353 loans made.
In California we have seen a similar growth in the subprime
lending market. In 1998 it is estimated there were
approximately $18 billion in subprime loans made in California.
In 2002 that number has ballooned to over $62 billion.
A recent study by the UCLA Advanced Policy Institute
established that the number of refinance loan applications
received by subprime lenders in California increased at an
average annual rate of 27 percent from 1993 to the year 2000.
That is comparable to 4 percent for prime lenders.
Our Texas office took a closer look at who are the subprime
borrowers in Texas. And our Texas office looked at publicly
available data available through HMDA and available through the
census bureau.
This is information that is readily available and subject
to peer review; it is information that anyone can access, it is
not proprietary and it is useful in terms of discerning certain
trends in the marketplace.
Our office in Texas found that income is a factor that
predicts when someone is likely to get a subprime loan in a
particular neighborhood, but even when controlling for other
factors, the number of elderly people in a neighborhood and a
borrower's rate can be key to determining who gets a subprime
loan.
In Texas, the older residents in an area predict the
greater likelihood of subprime lending in that area and that is
consistent with the findings established by AAARP.
HMDA data for Texas also demonstrates that the growth of
the subprime refinance market has increased overall statewide
but that the percentage of loans to African-Americans and to
Latinos that are made through subprime lenders has also
increased
Those numbers are substantial. In 1997, 7.6 percent of all
refinanced loans sought by Latinos were subprime. In 2002 that
number jumped up----
Chairman Ney. I am sorry, did you say 70 percent?
Ms. Garcia. Seven point 6 percent.
Chairman Ney. Oh, I am sorry. Okay.
Ms. Garcia. In 2002 that number jumped up to 39.7 percent.
For the African American community, those numbers are in 1997,
19 percent of all refinanced loans for African Americans were
subprimed.
In the year 2002, that number jumped to 57 percent.
In California, cities have confirmed that subprime
refinance lending is concentrated, highly concentrated in
Latino and African American communities. And this is of great
significance.
I heard a comment earlier that perhaps this is just an
urban problem but it is not just an urban problem, it is also a
rural problem.
In California, we had a few of the largest subprime growth
areas that are actually in rural counties, so we know it is
growing substantially in cities but it is also growing in fast-
growing rural counties.
Subprime lending can reduce or eliminate home equity. This
is one of the reasons why we are extremely concerned about the
growth in the subprime market to the extent that that also
triggers a growth in predatory lending and everyone has heard
the discussion today about what would be considered predatory.
To the extent that it contributes to that growth, there is
a lot at stake here. There is a lot of home equity at stake,
there are a lot of communities at stake and there is a lot of
home equity that could be easily siphoned off.
Chairman Ney. I would note that time is expiring; we can
move on to the last two witnesses and Mr. Clay may have some
questions.
Ms. Garcia. Thank you.
[The prepared statement of Norma Garcia can be found on
page 150 in the appendix.]
Chairman Ney. Then we will come back. I am going to let you
go before me. I just thought I would point that out to you.
STATEMENT OF GEOFF SMITH, PROJECT DIRECTOR, WOODSTOCK INSTITUTE
Mr. Smith. Thank you for the invitation to testify before
this hearing. My name is Geoff Smith and I am project director
at the Woodstock Institute.
The Woodstock Institute is a 30-year-old Chicago based non-
profit organization that works locally and nationally to
promote reinvestment and economic development in lower income
and minority communities.
With that we have been extremely active in the area of
subprime and predatory lending policy, conducting research that
illustrates the scope and impact of predatory lending and
working to develop and promote local, State and federal policy
that addresses this problem.
My testimony today will focus on the findings of the
research report recently released by Woodstock Institute that
quantifies the relationship between skyrocketing neighborhood
foreclosures and increased levels of subprime lending in
preceding years.
The results indicate that subprime lending was the dominant
force in the increased and highly concentrated levels of
neighborhood foreclosure.
In Chicago, a foreclosure led to staggering problems and
the regions leading housing issue for local government and area
community development organizations.
From 1995 to 2002, Chicago-area foreclosure starts
increased by 238 percent.
Traditionally, FHA loans have been primarily associated
with troubling foreclosure rates and lower income and minority
communities. Over the course of the late 90s conventional
foreclosures skyrocketed to take over this role.
Between 1995 and 2002, FHA-related foreclosures increased
105 percent. Over the same period, conventional foreclosures
starts increased by 350 percent, three times the rate of FHAs.
These increased conventional foreclosures are not
distributed evenly across the Chicago region, however. Rather,
they are spatially concentrated in highly minority communities.
Neighborhoods greater than 90 percent saw an increase in
financial foreclosure starts of 215 percent, while
neighborhoods with 90 percent or greater minority populations
experienced an increase of 544 percent.
Neighborhoods 90 percent or more minority residents
accounted for 40 percent of the 1995 to 2002 increase in
conventional foreclosure starts and tracked the 50 percent or
greater minority populations accounting for more than 61
percent of the increase in foreclosure starts.
Neighborhoods of 90 percent or more minority residents in
2000 accounted for 37 percent of 2002 area conventional
foreclosure starts, but these same communities only accounted
for 9.2 percent of owner-occupied housing in the region.
The above illustrates that conventional foreclosures
rapidly increased in the Chicago area from1995 to 2002 and that
a disproportionate share of this growth occurred in highly
minority communities.
The question we asked is ``What factors drove these
increases?"
What we found is that after controlling for changes in
neighborhoods of economic and demographic conditions, subprime
lending was the dominant factor of increased neighborhood
foreclosure levels.
Our results show if every 100 additional subprime loans and
under occupied properties made in the neighborhood from 1996 to
2001 that resulted in additional nine foreclosure starts in the
community in 2002 considering that the average tract in Chicago
had about 11 foreclosure starts in 2002 this represents a 76
percent increase in foreclosure levels.
Breaking down lending at loan purpose, we found that a
tract with 100 additional prime home purchase loans from 1996
to 2001 could be expected to have about .3 additional
foreclosures in 2002.
All tracts at 100 additional subprime home purchase loans
are expected to have almost nine additional foreclosures. Thus,
the contribution of subprime home purchase loans in the
neighborhood foreclosures is 28 times that of prime home
purchase loans.
In the case of refinance loans, the higher number of owner
occupied prime loans actually leads to a reduced incidence of
foreclosure levels.
A tract of 200 more owner-occupied prime refinanced loans
from 1996 to 2001 is expected to have one fewer foreclosure
than 2002.
Conversely, a tract with 200 additional subprime refinance
loans can be expected to have 16 additional foreclosures.
The findings of our study clearly indicate that subprime
lending is a dominant drive where the increase in highly
concentrated neighborhood foreclosure levels of recent years,
while responsible subprime lending may bring important benefits
to families that have difficulty obtaining credit elsewhere,
the cost associated with a lightly regulated subprime lending
industry are too high to go unnoticed.
These economic, social and emotional costs accrue not just
individual borrowers but also to modest income neighborhoods
fighting for success and stability and cities struggling to
provide public services and balanced budget deficits.
Neighborhoods and cities external to the foreclosure
transactions lose hundreds of millions of dollars every year in
decreased property values, lost tax revenue and increased
service burdens.
The findings of our study indicate significant economic and
social costs associated with portions of the subprime lending
industry and the need for stronger controls at the federal and
state levels. Thank you.
[The prepared statement of Geoff Smith can be found on page
209 in the appendix.]
Chairman Ney. We have our last witness. Mr. Staten.
STATEMENT OF MICHAEL STATEN, DIRECTOR, CREDIT RESEARCH CENTER,
MCDONOUGH SCHOOL OF BUSINESS, GEORGETOWN UNIVERSITY
Mr. Staten. Thank you, Mr. Chairman.
I appreciate the committee's efforts to gather information
that will better describe the operation of subprime mortgage
markets.
It is a daunting task, and those of us who are professional
researchers and economists, as three of us on the panel are,
have been spending some time over the last 3 years trying to do
this very thing.
Part of the reason it is a daunting task is because there
really is no comprehensive database of subprime loan activity.
I have submitted for the written record empirical evidence
that we put together at the Credit Research Center using a
large and unique database of about three million subprime loans
made over the last 7 or 8 years.
And I will let that evidence stand for the written record.
But let me just step back and talk at a 30,000-foot level about
what data say and what they don't say and how it pays to be
careful about the interpretations you make from these
databases.
For example, we have heard time and time again this morning
apparent alarm at the fact that there is a disparity in the
incidence of subprime lending across certain geographic
neighborhoods, in particular a higher incidence of subprime
activity relative to prime in minority neighborhoods.
On the surface of it, that doesn't particularly alarm me.
And that shouldn't shock you to hear that.
Because it may just be the case that this is symptomatic of
greater access to credit. I understood from one witness this
morning the primary problem we confronted 25 years ago. Now all
of a sudden there is a flood of access to credit.
And so, perhaps the greater activity that we are seeing in
terms of mortgage originations in traditionally less served
neighborhoods, minority neighborhoods, lower income
neighborhoods have is simply a reflection of the fact that the
markets taken notice and are making credit available.
What you really should be asking of the databases that you
examine is whether the price that is being offered to borrowers
in those areas is appropriate to their risk. And it is not just
the borrower's personal risk, it is also the whole package of
risks embedded in the loan application, as we heard from our
corporate representatives this morning.
Without that information you can't tell whether borrowers
are being abused, whether they are being unfairly targeted and
unfairly priced or gouged, however you want to phrase it.
The most commonly used database of all the studies that
have been cited this morning is the HMDA data and the HMDA
database is singularly unsuited for addressing that question.
The HMDA database is very good at telling you where the
loans are made and the race of the person to whom they are
being made. That is precisely what it was exactly designed to
do.
But it doesn't tell you anything at all about the risk
profile of the person getting the loan and it doesn't have any
information about price.
That is a serious shortcoming in the entire discussion of
subprime lending and whether activity is appropriate or not.
You can't begin to understand how the market is functioning
in terms of matching loan and borrower risks to loan pricing
and features unless you have that information.
Now that is going to change; it is going to change in 15
months because part of the additional disclosure requirements
put on mortgage lenders, is to start providing information on
price.
But that information won't be available to researchers
until mid-2005 and until then all we have are the same HMDA
data that we have been living with and trying to analyze
subprime for the last 10 or 12 years.
And it is simply not up to the task. Not up to the task,
not up to the task of addressing the questions that ought to be
addressed, by this committee and any committee that is
contemplating trying to legislate for the entire market based
on basically the anecdotes and the horror stories that we don't
deny are out there but don't give us any indication of how
frequently those are occurring.
So what I have submitted for my written record is some
discussion of the limits of the databases that are out there
and a good deal of information about analysis of one database
that is a large database comparable in size to what HMDA claims
is the subprime component and also contains price information
and borrower risk information that begins to allow you to
assess whether the market is behaving as my colleague,
Professor Yezer suggested, pretty much as we would expect a
competitive market to behave as we teach it in introductory
economics.
Thank you very much.
[The prepared statement of Michael Staten can be found on
page 174 in the appendix.]
Chairman Ney. I want to thank the entire panel. I think you
are a wonderful panel and have given great testimony.
Mr. Clay?
Mr. Clay. I thank you, Mr. Chairman, I appreciate your
indulgence.
Let me quote for the entire panel the comptroller of the
currency made the point and I quote: ``There is a danger that
broad-based laws, however well-intentioned, may have an
unintended adverse impact on the availability of non-predatory
subprime credit.''
This view was supported by other studies and for that and
evidence subprime lending has declined in states and localities
following adoption of predatory lending legislation.
From your research, can you determine if the flight of the
business is because of the loss of exorbitant profits, from
predatory laws, or other reasons? And I will just start here.
Please elaborate for me if you would please.
Mr. Calomiris. Well, actually, I am going to be very brief
because I think that Mr. Staten has done more empirical
research on this but I have read empirical research on it.
What I would say is that I am convinced that the research
that I have seen shows that certain high-cost subprime lending
has declined. Now, there are two different interpretations of
that decline.
One of them is that lenders are finding the legal risks and
the transactions costs of meeting these State or local laws so
onerous that they have decided to withdraw and that therefore
some people who would like to borrow and can only borrow at
very high rates are finding that there is not the opportunity.
Another interpretation is that the market wasn't
functioning properly in advance and that those rates never
should have happened and that those kinds of loan terms are
almost by definition predatory.
That is basically why you can get two different views of
this. My own view is it probably is a mix of the two.
Mr. Clay. But sir, I only get five minutes of questioning
and----
Mr. Calomiris. My answer would be it is a mix of the two.
Mr. Clay. Okay, thank you.
Mr. Yezer?
Mr. Yezer. Yes, let me put this is another context. When in
consumer credit we have had experience with usury regulation
and other regulation. Part of the problem with usury regulation
is that there are always loan sharks.
There is always another resource. Now in the case of any
credit market regulation, the group that we are not observing
is the Brand X lender who may very well move in when other
credit is restricted.
So, I would want to test that carefully before I passed a
regulation.
Mr. Clay. Thank you.
Ms. Garcia?
Ms. Garcia. Yes, there is an assumption here when people
talk about the restriction of credit that more credit is
better? This isn't about more is better; it is about quality
credit for communities that need it.
And so to the extent that some of the laws, local and state
laws, have resulted in fewer subprime loans being made, we look
at that as an indication that the law is working.
And there has been a lot of discussion about terms being
onerous. I have had lenders come up to me and say, in the City
of Oakland, ``Well if such and such lender isn't going to lend
here, I am more than happy to move in because I realize there
is a viable market here that I want to tap into.''
Now, maybe that is competition at work. Maybe that is the
kind of competition that needs to be stimulated by these types
of laws.
Mr. Clay. I thank you for that response.
Mr. Smith?
Mr. Smith. As I see it, laws are passed in states because
abuse is identified in the lending market and by passing those
laws you are addressing those abuses thus you would expect some
sort of decline in lending related to those types of loans and
it is to be expected, I think.
And I think that over time you would see the market adjust.
Mr. Clay. Before you answer, Mr. Staten, I know I would
like to add a caveat to that question for you.
You brought out the fact about the market takes notice and
that is why credit becomes available and of course you are
right the market is 48 percent of African Americans own their
own homes compared to 68 percent of the rest of the population.
So, you talk about the price of appropriate risk.
Now, we are still talking about a house, a structure,
right? I mean perhaps you can elaborate on what you mean by
appropriate to the price to the risk.
You say a house is worth $100,000 or it is worth $200,000
or whatever. I mean, where does it stop where somebody receives
some economic chances or just plain fairness?
Mr. Staten. I am not sure I follow all of your question.
What I referred to by pricing appropriate to risk is simply
when a lender takes a look at a loan application walking
through the door; a lender is trying to decide what is the
likelihood that this loan is going to be repaid?
And what are the costs associated if it doesn't?
Part of the determinate of risk is the collateral value,
part of it is how much the borrower puts down in terms of
equity, part of it is the borrower's personal risk is reflected
in FICO scores and other risk attributes.
Part of it is the apparent stability of the borrower's
income. All of those things roll together. And those borrowers
who have good track records in the past, have good equity in
the home, good stable income, should get a lower price in a
competitive market.
Mr. Clay. How does that account for the fact that African
Americans are five times more likely to be steered to the
subprime market?
Mr. Staten. Well I don't know what you mean by steered.
What you are probably saying is that in some jurisdictions they
are five times more likely to be taking subprime loans than
prime loans.
Mr. Clay. Yes.
Mr. Staten. Okay. Do we know that that is not appropriate
for the risk that they present?
Mr. Clay. Well, it tells they have very similar payment
histories, credit histories, backgrounds, what have you.
Mr. Staten. Yes, which studies are those?
Mr. Clay. Harvard just released one this week, I have not,
I don't have it in front of me, but would like to share it with
you.
Mr. Staten. I would be happy to look at it.
Mr. Clay. What is your response, because doesn't that
number stick out? That African Americans are five times more
likely?
Mr. Staten. I don't think that is true everywhere.
Mr. Clay. This is a national study.
Mr. Staten. Are you representing that to be a national
figure?
Mr. Clay. Yes.
Mr. Staten. I would have to take a closer look.
Mr. Clay. We will get you that study, share it with you. I
would love to talk more to you about it. I thank you, Mr.
Chairman for the time.
Chairman Ney. Thank you and if you also, Mr. Clay, if you
would like on the last couple of questions if you would like to
ask some more it would be fine with me, too. It just depends on
your time.
I wanted to start with 00; I don't know where to start but
I think it is a fascinating conversation also from the point of
view of looking at it statistically and academically.
I think Mr. Calomiris you had made a statement about
statistics and they weren't accurate and statistically it
hasn't been looked into with preciseness in a lot of cases, the
studies that are out there.
Mr. Calomiris. Well, I was referring to a few different
things, two different kinds of problems. Because we are seeing
a lot of discussion of studies here today, I was here for the
whole first panel and listened to the discussion of studies
that control for income which is not a sufficient statistic for
an individual's risk.
And so some of the studies that were cited earlier really
are just controlling for income, and that is not good enough.
So some of the issues have to do with whether you are
controlling for all the things you would want to control for.
FICO scores and loan to value ratios are the two most
important things but they are not the only things.
I am not here as a banker, I am here as an academic but I
am a banker.
And I can tell you that the FICO score is the beginning,
not the end of risk analysis along with loan to value ratio, so
part of it is that the studies are using data that are not
complete but part of it too is that there may be what we call
in statistical jargon cross sectional unobserved heterogeneity.
Okay, what does that translate into? That translates into
the fact that there may be a variable left out that you can't
observe that is correlated with a variable that you can
observe. In that case, it could be race.
And so race may be picking up statistically things that
just aren't in your data set and that may be correlated with
the thing you are not observing. So you have to be careful.
That is not saying that that is the answer that is just
saying you have to be careful when you are looking at these
studies to make sure they are being done in a good and
objective way.
Chairman Ney. You touched on information I think you are
correct. You know I have recently done some financing last year
and I sat there and I am trying to like get on with it and she
is going through it and I always ask do I have a pre-payment
penalty?
It is too much money, things I have been taught over the
years. But I do like to get on with it.
And what I am getting to the mail on the information from
the credit card companies that they are now required, under the
law to send out is being discarded as most people discard three
to four to five sheets.
I kind of like it simplified so I think we have probably
informationed people to death to the point where I doubt they
are sitting down and looking through things. I think that would
be definitely simplified a lot.
I just want to throw out a couple of statements to anybody.
More than free to answer. All I want is one thing: your comment
about equity. I am sorry. First, I think that Dr. Yezer had a
comment about equity and----
Mr. Yezer. If you take a class in economics or if you look
at economic research you will conclude American homeowners are
holding far too much equity. And that the current mortgage
interest instruments are 30-year fixed rates self-advertising
instrument is a dinosaur and a disaster for American
households.
And basically we encourage people and unfortunately in the
African-American community it is all too common if you look at
the numbers, they are just going to pay off the mortgage,
right? And they are holding no, you know, they are holding a
little bit of government guaranteed assets, usually bank
accounts.
And they have got home equity. They have got no stock or
bonds, mutual funds, no accountant or broker dealer. And again
if something bad happens in their lives they initially max out
their credit cards and then they want to tap their home equity
and it is got you.
They are not going to get in the prime market. They are
going to go subprime and they are going to pay really high
rates of interest despite the fact that they have built up all
this equity.
If instead of course they had an interest only mortgage or
they had a mortgage instrument, which automatically swept out
equity, which we could do, in modern design into a mutual fund.
By the way, they have initiated them in the U.K. Then if
something bad happens, they could tap those funds.
And they wouldn't have to go through all the cost and
trouble of refinancing and being thrown through a major got you
into the subprime market. This is a major problem for American
households.
Chairman Ney. What do you think about home equity loans?
Mr. Yezer. Home equity loans are one way, especially to the
extent that people are getting around some of this problem. But
remember those are largely for the people who have good credit
risks and for whom the got you has not been too bad.
If you are a lower income person, generally speaking, and/
or less knowledgeable about the use of credit, then you are
much more likely to fall into the home equity trap. And it is
very unfortunate.
Again, we are sitting here. We are the leader in financial
economics in the world. The rest of the world comes here to
study.
You take our classes, and we tell you how a household ought
to manage their balance sheet. We tell you that the 30-year
fixed rate self-advertising mortgage is a dinosaur. Right?
And then you go out and look what the government recommends
and they recommend all the wrong things.
So it is kind of frustrating. But you know if efficiency
broke out in the U.S. economy you wouldn't need economists so
that is what we rely on.
Ms. Garcia. Well I think that it is probably true that
homeowners shouldn't accumulate all their wealth in their home
equity.
The fact is that they do and we know that there are
cultural considerations at play here that merit a deeper
understanding but I can testify from first-hand experience that
in the Latino community, at least if you have ever come from a
Latin American country you understand there is no such thing as
a mortgage.
And you don't own your house until you pay for the whole
thing. And so to the extent that that practice is prevalent in
the Latino community it is definitely culturally based.
I don't think that that eliminates our incentive here to
protect against practices that siphon off equity unnecessarily.
I think it informs the discussion and is something that we
should consider when we talk about what we need to do here
today.
Chairman Ney. I was chairman of insurance and banking
committee. Because there was insurance companies, the banks,
and the savings and loans at the time.
And none ever mixed. And the huge food fight we had which
was tremendous was its unbelievable concept that the State of
Ohio would ever enter into interstate banking was something
that just wouldn't happen because interstate banking was going
to destroy our state.
Because if you got a loan you went to you know Bank One or
the Huntington Bank and that was all there was to it.
And of course years before that, the government said well
you can have one of those drive through or branch banks. But it
is got to be kind of close to the main bank.
But I just think back and it brings my point to a national
standard. I don't even call it preemption any more. It is a
national standard.
And I think now it, the OCC was what they are looking at in
their ruling will create a two-tier system and people will be
under that rule but this whole group of financial institutions
that aren't national and so therefore you are going to have a
two-tier process.
But, and I was always opposing the rule and if you would
have asked me years ago about interstate banking at the time it
would be the fact that we have to have armed protection in our
State and we can't intermingle.
If you asked me about preemption we wouldn't dare with
Ohio's home rule thinking pre-empt something. But all of a
sudden everything changed and those also were the days where
you didn't link up to a computer and have ditech.com or
whatever you know you either went right into your State or you
didn't.
There wasn't the technology so I think all of that has
changed to where you know it is time to talk about a national
standard otherwise you know you will have inequities for people
across this county and we could say, ``Well, look, Georgia had
a mess down there and then it came back and we straighten part
of it out because people were actually kicked out of the
subprime market.''
And Georgia? What does it have to do with Ohio? Or
California? Well it does these days. It is different.
You know money is moving and money is money so I just think
that you know if somebody would have asked me would I be
offering this bill 15 years ago, I would have said no.
Absolutely not.
But times have changed and technology has changed, which
makes it interesting about Mr. Calomiris' comment about you
have been wanting to say about this kind of wait and solve it
with a chart. Which may be so simplistic but look at that and
see if that does it. It spells I think a lot of things out.
The one question I wanted to ask you Ms. Garcia is the one
statement you made was sort of on the basis that maybe we ought
to look at the quality and but not have some people in subprime
because it is too costly.
Something to that effect, I think. Is it a bad thing or a
good thing and I think we have to look too at the person that
is out there and they can because of risk factors they can only
get into the subprime and if you ask them they think they can
pay that mortgage, they are going to want to be in there versus
us telling them for the good of the order you know it is kind
of better to start your house for a while.
And that is because maybe they have had a credit problem.
So that is been the intent of in my opinion this bill is
standardized some issues to protect some consumers.
You know, look, there is a lot of things that ought to be
spelled out and we have got Mr. Scott and Ms. Velazquez the
counseling issues because I think people have to be educated.
Those are just a few of the thoughts I had about national
standard and why I think we should embark on it.
If you don't have a national standard then you do have you
know the State of Ohio and then Cleveland and then Cambridge
has its own and Dayton, Ohio and then Toledo and it just keeps
going to where people can't get into the market and they have
got bad credit and subprime in Cleveland, Ohio but if you move
to Toledo maybe you can.
And I just----
Ms. Garcia. May I respond to that?
Chairman Ney. Yes. Sure I am just throwing this out there.
Ms. Garcia. Well we think a national standard is a good
thing but we also believe that it is important for states to
have some flexibility to legislate where the national standard
doesn't meet the needs of people in particular states.
We think the national standard sets the floor, not the
ceiling of what should happen with respect to how subprime
lending is regulated in this country.
There has been a lot of discussion about local ordinances
in Oakland and in Los Angeles and I would be happy to comment
about that since I have been involved with both those processes
as well as with the establishment of the State law in
California and I can tell you that the State law in California
was in response to holes seen in the federal law and it was
also response to the severity of predatory mortgage lending in
California.
I don't know that every state shared that experience but
that has been our experience and that is what motivated the
impetus for a statewide law in California.
Now, we looked a local ordinances and what is that all
about? You know why if we have a state law in California why
would local governments want to come in and do something else?
Well, the fact is that the local governments analyzed the
State law and realized that people in their jurisdiction needed
more protection.
The City of Oakland proceeded very carefully with their
ordinance and I have heard a lot of discussion here about the
Oakland ordinance and how it might impact upon the purchase
money market but I want to mention also that no one mentioned
that one of the triggers for the Oakland ordinances, the
triggers are different for purchase money loans versus
refinance loans.
Recognizing that there is a benefit to subprime lending in
the purchase money market, there is also been an attempt by the
city attorney's office; it is an ongoing discussion that they
are having with the ratings bureaus about the assignee
liability issue. And no one mentioned that.
There are some distinctions to be looked at here. I think
one of the things we need to think about is what drives the
State movement, what drives local ordinance movement and it is
the gaps.
And unless and until the federal law can address those gaps
you are going to have local governments interested in being
more protective.
Chairman Ney. So you would support a national standard?
Ms. Garcia. I would support a national standard as a floor
to what needs to happen----
Chairman Ney. Of course that limit was a floor.
Ms. Garcia. And you know there are a lot of good things in
HOEPA, but 10 years later, we still have problems.
Chairman Ney. I mean, in one way I mean one of the
witnesses previous I think would support a national standard if
it was one they liked. I mean, if it did certain things.
I just think taking since things have changed as I said
earlier and taking an objective look at it. The other thing I
will tell you and I am not saying that by any stretch of the
imagination the U.S. House is void of politics but when I was
in the State senate I used to do the usury amendment.
Nobody ever wanted to do it and we had Democrat and
Republicans, it is not a partisan statement stand up on the
floor and says let us make usury 4 percent in Ohio.
Knowing of course that in those days major companies could
just bomb us out in Michigan and take 3,000 jobs and still you
could go get your credit with them at a higher interest rate.
Or the fact that some of the federated change would in fact
just cut people off of credit.
Now, nobody likes these bills that make usury at 17 or 21
percent but we would have these emotional gimmick amendments to
make it 4 percent.
One day I said, ``We ought to just pass one of those and
watch the people that introduced it pass out.''
And I think that nationally there are a lot of good people
all over. I applaud people who run for office but I think also
nationally there is a lot of emotion to this, a lot of
politics.
You stand up on the floor of a council, maybe it hasn't
been looked at in some aspects and you do an amendment that is
just going to kill people with kindness you know and keep them
in apartments.
I think that is a potential and you have them all over the
country, so I think just take another look at it. I mean when
we even dared to do this bill a few years ago, it was like it
was almost something criminal to even talk about predatory
lending, but I think Georgia and the problems came to the
forefront and that is why I think we are having a decent
discussion by the way about this issue, I really do.
Of people from all sides but I think, too, out in the
hinterlands you had a lot of emotion on this issue and it would
tend to do a lot of politics, and some people in certain towns
aren't going to have the ability of what they should.
But, again, you have to get down also to the root of real
predatory practices of terrible things that are done to people
and I use the Cleveland example where they mandated predatory
lending counseling, which is great.
And this poor guy thought his mortgage was $447; it was
$600 and some. And the counselor who was hired under this law
created in Cleveland, as I read in ``The Plain Dealer'' said I
stayed $79 bucks, I sat down with the guy.
And, so, you know you do counseling a certain way in
Cleveland and a certain way in Des Moines, Iowa and you know I
just think some national standards even on that I think would
be a healthier idea when people send for it.
Ms. Garcia. Well, one other thing that I wanted to mention
also that was not stated about Oakland and Los Angeles is that
those ordinances do not prohibit high cost lending or
borrowing. They only provide for certain protections for the
borrowers of the highest cost loans.
And so, to that extent they are not limiting lending and
many of the provisions of those ordinances are some of the
things that we have been talking about here today, and there
have been a number of statements made about the value of
counseling and the value of an informed borrower.
Well, those ordinances have provisions that require
counseling for borrowers who are taking out the highest cost
loans. And that benefits everyone, it benefits the lender, it
benefits the borrower.
Chairman Ney. I wanted to ask, because we are running out
of time, regulated mortgages that are priced too high would
probably, I assume, likely prevent high risk borrowers from
getting loans.
Because those high-risk borrowers are the most likely to
default on their loans, do you see any positives in essentially
barring the high-risk borrowers?
Do you see any positives in that or----
Mr. Smith. I think that that is a good point. I mean, I
think that there is been this perception that everyone in some
ways everyone should have access to credit and I think that
sounds bad.
I think that there are borrowers out there that are too
risky for certain mortgages and I think that that is manifested
in these high foreclosure levels.
Something had to be driving the increases in foreclosures
of 544 percent in predominantly minority communities and it is
not----
Chairman Ney. Can I ask you has anybody factored any credit
cards and----
Mr. Smith. Well, we didn't consider other consumer debt in
our research. That data just given the nature of the data it is
not available at the level that we use for analysis.
Mr. Staten. I just want to jump in here to say I am
imagining a different world. I am imagining that we are sitting
here today and that we are all complaining at how inefficient
the market was because all these people pay such high interest
rates on subprime loans but the foreclosure experience was the
same as on prime loans.
And they obviously were cheated, right?
Because they weren't so risky after all but they paid
really high interest rates and so we are not here with that
discussion, we are here with a different discussion, an
unsurprising discussion which is that when we had an enormous
boom in subprime lending with very high interest rates being
charged because most subprime loans are riskier, we got more
risk.
What a surprise.
Mr. Smith. Well I don't think that it is a surprise
necessarily that higher risk loans default and foreclose at
higher levels than prime loans but the magnitude of the
relationship I think is what I would categorize as surprising
and I just think that that is what is really significant not
just that subprime loans lead to higher rates of foreclosure
than prime loans.
That is to be expected. But that they lead to higher rates
of foreclosure 28 times prime loans. I think that is
unacceptable.
Mr. Davis. Well let me just say because I talked to
Standard & Poors in my Senate testimony of 4 years ago I asked
them to tell me what their estimates were of what the
foreclosure rates would be. And they estimated they would be 23
times in some categories, 1,000 times and I think the average
was for subprime relative to prime about 24 times.
That was an anti-estimate. So it sounds like we priced them
based on an ex-anti-estimate that looks a lot like the ex-post
experience. What is surprising here?
Mr. Smith. Well perhaps it is not surprising then but I
think it is unfortunate then that that is an acceptable risk.
If seeing foreclosures increase by 544 percent is an acceptable
risk then that is too much risk.
Mr. Davis. Now we have really come to the heart of the
issue.
The heart of the issue is whether and this is why I call
these self-usury laws. The heart of the issue is whether some
grandmother who is sitting on a house, has a lot of home equity
and her grandchild would like to go to an expensive college and
she is trying to decide whether to get a subprime loan because
she can't qualify for a prime loan to basically take some of
the equity out of her house and finance that education.
It is going to be really expensive and there is a
significant chance that she is going to actually not be able to
make it and there is going to be a foreclosure.
Now the question is do you want to stop her from doing it
or do you want to let her do it? And I will tell you where I
stand on that. I think I am going to let her do it. And he
wants to stop her.
Chairman Ney. Well, if are you stopping grandma? Why don't
you comment on that?
Mr. Smith. If grandma is going to foreclose, then yes I
would stop her. I mean, I think one of the things that we are
also missing on this quick discussion is that subprime loans
aren't evenly distributed across space; they are concentrated
in highly minority communities----
Chairman Ney. How do we know that she is going to
foreclose, though, just because it is a higher? How do we know
that? I am just curious.
Mr. Smith. Well we don't know that she is going to
foreclose but if we----
Chairman Ney. I can have a low rate and hey I go out and
you do this and you spend that and I run up credit cards and
you know et cetera and all of a sudden I just I lost my home so
my imagine so hey let us do a background profile on the bar
because that person gambles or might gamble or makes that
investment.
I am just saying, if it is a couple of points higher on
interest we say well, you know they are for sure going to
default down the road.
Mr. Smith. It depends on how much risk you are willing to
tolerate. You can make a loan that is 99 percent likely to go
into foreclosure and there is that 1 percent there that maybe
she can make it and if you are willing to tolerate that risk
then that is okay.
I mean that is acceptable risk then fine but I think that
there has to be a threshold where we say that is too much risk
and the impact that foreclosures have on communities not just
individual borrowers but cities and neighborhoods is too much
to accept.
Chairman Ney. I know Mr. Staten also talked about
calculating risk I think earlier in your testimony if you want
to jump in.
Mr. Staten. I Just want to make one point and that is that
she can sell the house, okay, because that is what she would be
forced to do if she really wants her grandchild to go to
college, so she can sell the house.
You know that is an option and so do we want to force her
to do that? The other option of course it there is lots of
other sources of credit. As I said, there is all these Brand X
mortgages out there.
We don't even know who these people are; they probably are
the most abusive lenders and you guys aren't regulating them or
talking about regulating them and nothing you do will regulate
them.
Is that clear in my testimony? Okay, is it clear?
I can get financing without going to a home brokerage
lender or a regulated lender, okay? So the real question is
what do we want the person to do? Sell the house, go to a
subprime lender or go to Brand X lender.
Chairman Ney. You know one of the issues is I think that
the average lender that is out there is not going to sit and
say okay well first of all you are going to have to go to
subprime and you see that they make $1,000 a month.
I don't think your average lender is going to walk in there
and say well let us make payments $800 a month and finance you
$800 a month knowing they are going to default and popular
thinking is everybody wants to get that house and I have found;
at least I have seen statistically a lot of places don't like
to mess with that because they got to go in, clean the house
up, have somebody manage it, try to sell it.
Now I am not saying that there aren't people out there that
haven't today that don't do those practices. I am sure some
people sit there and they might say we know this person is
going to fail we are going to try and take this house.
But I just don't think a lot of the reputable ones will do
that so therefore let us try to find the ones that aren't
reputable and weed them out.
I just don't think a lot of people in the business are
going to sit there and say, ``Okay. Now let us bring them all
in and manage all this property.''
Some people would do that, I am not saying that that
doesn't happen in the country and we have got to correct that.
Mr. Smith. It doesn't have to be doomed to fail to trip
these high cost thresholds. Let us just talk through an
example.
Suppose that you are talking about a pretty small mortgage
like a $50,000 mortgage and there is only a 10 percent chance
there is going to be a foreclosure, okay? A 10 percent chance,
but my foreclosure costs are going to be $20,000 as a banker.
If my foreclosure costs are $20,000 then that means that I
might not get back $30,000 let us say on that house. So I might
charge a 15 percent interest rate or 20 percent interest rate
on a small mortgage even if there is only a 10 percent default
probability and that might be the fair interest rate to charge.
And so in my grandmother example, grandma may say there is
a 90 percent I am not going to get foreclosed.
And my point is that that kind of a loan will trigger the
effective stealth usury triggers that are no longer these state
laws and so its nuts talking about the 99 percent chance of
foreclosure that seems so obvious or the example we had in the
previous panel where somebody unscrupulously had a loan payment
that is equal to the social security payment.
Those are clear cases that we don't want to see but my case
is a tough one. You can't just back off from that case because
that is realistic.
A lot of people are paying high interest rates that aren't
going to get access to credit and a foreclosure might only be
10 or 20 percent. High, significant but you have to decide, are
you going to make their decision for them?
Some people are willing to do that. I am not.
Chairman Ney. Yes.
Mr. Smith. Let me give you another example that is part of
the home equity trap that indicates how insidious it really is.
Okay, I am employed in the town; there is a major industry
in the town, major industry declines. I am laid off. I have got
all my money in home equity. I can't get a prime mortgage so
what do I do?
Well, I can sell my house at the very time in which the
housing market is in the toilet and everybody else wants to
sell?
Oh, good I am in great shape then. Or I can get a subprime
mortgage and hope the industry rebounds or I can get a job
someplace else.
The subprime mortgages come back very fast if that person
does get a job or if the community revives they are going to
refinance back into a prime mortgage just as soon as their FICO
score improves.
That is what we see; by the way, subprime refinancing is
very, very high and has no relationship to interest rates
particularly at all.
When folks have a bad experience because they were caught
in the home equity trap and then they temporarily can only get
this credit or they have to sell their house in a declining
market or an unsatisfactory situation and after a short period
of time, a year or 2, they cure this situation they can
refinance back into the prime market.
Now what is wrong with that? This is the way we teach our
kids in freshman economics. You have to be careful.
I agree there may be all sorts of provisions just with
credit practices that you can say, this is a bad thing. And get
rid of it.
But you need to have solid research by good economists
before you go out and do those things and try to regulate.
Charles posed a disclosure notion.
I actually am so old that I actually advised on the APR
regulations, but anyway, that is how bad it is. I look a lot
younger of course.
But before you pass these, one of my colleagues also worked
on the Susan B. Anthony half-dollar.
So one of the things I know is you have to have solid
research before you decide what you can regulate and what would
be a practice that someone abusive would use and someone who
was not abusive wouldn't want. And then go after it.
Chairman Ney. So you feel the home equity loans are
something that should be suffered together?
Mr. Smith. No. I think what has happened with home equity
is a substitute for what is going into the subprime market and
trying to attach as equity. I talk to the mortgage bankers and
I tell them you know you are all one in done business.
I mean, it is mortgage bankers, brain surgeons and
morticians. The one and done consumer model. They should be
providing people with financial services for a lifetime.
Okay, that is what they should be doing. And there should
be, if there were different kinds of mortgage instruments that
were really being pushed and the American people were being
told that in fact they should get into equity market.
I mean Australia is upside down but they still have a
mortgage, which is selling which allows you to miss the payment
each year. This is we just want to maximize our home equity,
this is entirely wrong.
And as I say but if we are going to do that, then we need a
liquid market so that people can bail themselves out when the
local economy goes in the toilet, because otherwise they are
really in trouble.
Chairman Ney. I am sorry we are out of time but I could go
on. Fascinating panelists each and every one of you.
One statement I did want to touch on was that what you said
about freshman economics and I just think that I am a teacher
by degree and some of my teaching colleagues would be upset
with everything is laid on the school systems. I think too
much, you know, in a lot of ways.
That happens to be moms and dads and you know helping with
the family things that should be done at home but that is the
way life is.
But somewhere along the line I think at an earlier age
across this country if we could teach some kind of basic this
is how a checking account happens, if you go buy a $1,000 worth
of clothes and you have that credit card. And by the way and it
is only $10 a month it is going to take you 10 years to pay it
off.
Somewhere along the line you could get some basic life
reasoning, even if it is a two-week course in eighth grade or
whatever.
I think honestly it would help at a younger age to give a
little bit of education so people would. Because, when we
passed the mandatory seatbelt law in the State of Ohio and I
mean if you want to hear people you know screaming to high
heaven about it and people are still upset about it but the
young kids are raised with it?
And they buckle up, it is no problem, there are no
problems; they are not offended by it.
But people are still debating it to this day 12 or 15 years
later. And I think if we can get into the somehow education
system and that would be a remarkable way, whichever side of
the issue you all are on or anybody.
It would be a remarkable way early on counseling and
warning and dangers of predatory lending and not having been
able to have them become bank closing and finance officers or
counselors but some kind of basic knowledge I just think would
be so helpful at a younger age.
All the way around.
I want to thank you. You have just been a magnificent
panel. Thank you very much.
The chair knows that some member may have additional
questions for the panel, which they may wish to submit in
writing.
Without objection the hearing record will remain open for
30 days for members to submit written questions to these
witnesses in place to response to the record.
The hearing is adjourned.
[Whereupon, at 3:27 p.m., the subcommittee was adjourned.]
A P P E N D I X
March 30, 2004
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