Copyright 2001 eMediaMillWorks, Inc.
(f/k/a Federal
Document Clearing House, Inc.)
Federal Document Clearing House
Congressional Testimony
July 27, 2001, Friday
SECTION: CAPITOL HILL HEARING TESTIMONY
LENGTH: 1966 words
COMMITTEE:
SENATE BANKING, HOUSING & URBAN AFFAIRS
HEADLINE: PREDATORY MORTGAGE LENDING
TESTIMONY-BY: GEORGE J. WALLACE
BODY: July 27,2001
TESTIMONY OF GEORGE J.
WALLACE
BEFORE THE COMMITTEE ON BANKING, HOUSING, AND URBAN AFFAIRS
UNITED STATES SENATE ON BEHALF OF THE AMERICAN FINANCIAL SERVICES
ASSOCIATION
Good morning. I represent the American Financial Services
Association ("AFSA"). AFSA is a trade association for a wide variety of
market-funded lenders, many of whom make both prime and subprime loans to
American consumers. AFSA looks forward to working with the Committee to examine
the issues raised by the hearings held yesterday and today.
Allegations
of
predatory lending, particularly in the subprime mortgage
market, have received a significant level of attention in recent months.
Advocates of increased regulation have claimed that stepped up fraudulent or
"predatory" marketing practices have persuaded vulnerable consumers to mortgage
their homes in unwise loan transactions. Some consumer advocates have gone
considerably farther and asserted that various loan products and features common
to the mortgage market are "predatory" and should be outlawed. Most of the
regulatory changes sought have a common, very troubling, approach. They impose
significantly restrictive new regulation on all mortgage loans, or all loans
over a designated interest rate or points threshold, even if there is no
evidence of fraudulent marketing. This approach confuses the symptoms with the
causes and its adoption would be a serious mistake, because it fails to
recognize or address the real causes of the problem, and would seriously
undercut the important goal of maintaining the availability of credit for
working American families.
Much of this proposed regulation seeks to
control credit prices, directly or indirectly, by limiting or discouraging
points, fees, and higher interest rates. Some proposals also restrict credit
terms or require burdensome new compliance steps, such as extended new
disclosures. Several others aim at restricting marketing methods, particularly
when refinancing is involved. Finally, several proposals have urged turning the
already strong remedial and penalty provisions of present law into extremely
broad punitive provisions.
These proposals, taken as a whole, would
dramatically reduce loan revenue, increase the risk, and/or increase costs the
lender must bear. While initially the resulting burdens fall on the lenders who
continue to make loans subject to new regulation, in the long term, the effects
will almost always be felt directly by working American families, either because
of decreased loan availability, higher credit prices or less flexible loan
administration.
Thus this call for increased regulation, well intended
as it undoubtedly is, strikes at the very heart of the efforts over the last
quarter Century of Congress, many States, consumer advocacy groups and the
lending industry to make efficiently priced consumer credit available to working
American families, including minorities, single parent families, and others who
for so long were unable to obtain credit. In testimony before this Committee in
1993, Deepak Bhargava, Legislative Director for ACORN, spoke of "a credit famine
in low- and moderate-income and minority communities in urban and rural areas"
demonstrated by "[a]bundant anecdotal and statistical evidence [pointing to]
"massive problems of credit access in many communities around the country,
particularly in minority and low-income areas".' He also pointed out that
"[I]ack of access to credit thwarts community development efforts, and the
creation of employment and housing opportunities for millions of American
families. ,2
In 1993, subprime credit was a very small part of the
credit market. Today, subprime credit is approximately 25% of home equity credit
outstanding, and a very significant part of purchase money credit. Yet some of
the legislative proposals advanced by consumer advocates this year would
unwisely impose stringent new regulations and disclosures, including what
amounts to strict price and terms limitations, on virtually all of that credit.
Even the pending Federal Reserve Board proposals would impose heavy additional
regulatory burdens. A study of AFSA member loans originated over the last 5
years suggests that the pending Federal Reserve Board proposal would increase
the number of first mortgages covered by HOEPA from 12.4% today to 37.6%, and
second mortgages from 49.6% to 81 .1%..3 The effect, if not the goal, of these
proposals will likely be to substantially shrink the subprime mortgage market, a
point underlined by Freddie Mac's announcement in the Spring of 2000 that it
would not purchase any HOEPA loan, a policy now mirrored by Fannie Mae. 4,5
Subprime lenders, spurred on by Congress, have been enormously
successful in delivering efficiently priced consumer credit to working American
families, regardless of race, ethnicity or background. Such families use
mortgage credit for many purposes, among them acquiring homes, working their way
out of credit difficulty by consolidation and refinancing, making home
improvements, and college education. We are proud to report that during the last
five years, 96% of those who have borrowed from AFSA members using subprime
mortgage loans have used the credit successfully. 85% of those subprime
borrowers paid in full and on time. The remaining I I%, in varying degree, may
have missed a payment here and there, but ultimately used the credit
successfully. 6 It is true, of course, that subprime lending does experience
higher losses than conventional lending. That is why it is priced as it is. But
the basic point is that most Americans who use subprime credit use it
successfully. Under what policy prescription would government deny to Americans
with less than first class credit access to all the benefits of credit that
middle class Americans enjoy? The 96% of Americans who use the credit extended
by AFSA members successfully are not asking for that interference.
There
are some people who have been the victims of fraudulent, deceptive, illegal and
unfair practices in the marketing of mortgage loans. Advocates have mistakenly
focused on loan products and features as the reason why these victims
experienced such adverse outcomes, and reached the faulty conclusion that if
regulation just barred certain loan features, the harm would have been avoided.
Pursuing that mistaken reasoning, they have tried to label as "predatory,"
highly regulated loan products and features, which are entirely legal (such as
credit insurance, prepayment penalties, balloon payments, arbitration, and
higher rates and fees). However, most of the loan features called "predatory"
are not generally known as "predatory" practices - they are legitimate, legal,
and common in mainstream prime and subprime lending. Any legitimate consumer
good or service can be marketed fraudulently. Indeed, the scam artist prefers to
use legitimate products, like loans, as a cover because consumers want and need
the product. The illegality comes in the fraudulent marketing of the good or
service, not in the good or service itself.
We urge that Congress not
confuse the loan products that consumers want and need, with the fraudulent
marketing practices that a few isolated operators have used to prey upon the
unfortunate.
Predatory lending is fundamentally the result of
misleading and fraudulent sales practices already prohibited by a formidable
array of federal and state law, including section 5 of the Federal Trade
Commission Act, criminal fraud statutes, state deceptive practices statutes, and
civil rights laws. Aggressive enforcement efforts by the FTC, HUD and the Civil
Rights Division of the Justice Department, as well as by the States'Attomey
Generals are underway. The existing array of state and federal regulation of
fraudulent practices is already sufficient to deal with the deceptive,
fraudulent and unfair practices that make up "
predatory
lending", and we suggest that there is no better deterrent to this type
of behavior than successful prosecution. On the other hand, the subprime market
is already very heavily burdened with restrictions and requirements imposed at
the State and federal levels. Additional regulation of the type advocates have
proposed will hurt the vast majority of working American families by raising
credit prices and reducing credit availability. That is simply not a desirable
policy outcome, particularly when it is not likely to deal with the real
problem.
If fraudulent and deceptive practices are the root of the
problem, what is the appropriate policy to address
predatory
lending? First, Congress should do no harm to the present
system which has been extremely successful in delivering consumer credit to
America's working families. As said before, more restrictions on credit prices,
terms and practices does not address the fraud which is the root of the problem,
and it results in taking away from working American families the lending
products they desire and it has been the goal of Congress to provide. Remember
that over a 5 year period, 96% of those who used subprime lending from AFSA
members did so successfully. Such policy prescriptions as lowering HOEPA
thresholds and forbidding such features as balloon payments, financed single
premium life, accident and health insurance and prepayment fees in more and more
loans is not appropriate policy, because it takes away legitimate tools to shape
credit to the needs of America's working families.
AFSA has been a
leader in developing educational programs to help meet the enormous need
American consumers have for greater financial literacy. As a founding member of
the Jump Start Coalition, a coalition of industry, government and private groups
dedicated to increasing financial literacy, it has for several years pushed
strongly for increased efforts to educate Americans about credit. We urge
Congress to support these and other efforts, because they hold the greatest
promise to help over the long run. As we all know, the best defense against
fraudulent sales practices is the informed consumer, and informed consumers can
best evaluate whether they want or can afford to borrow more.
Industry
self regulation likewise plays an important role. AFSA has developed "Best
Practices" which its member companies have voluntarily adopted. They address the
controversial terms which consumer advocates have often targeted, and they
strike a balance between reasonable limits and providing legitimate consumer
benefits in appropriate circumstances. Other associations of lenders, including
the Mortgage Bankers Association, have adopted "Best Practices" as well, and
they hold a great deal of promise. A copy of AFSA's best practices on home
equity lending (Statement of Voluntary Standards for Consumer Mortgage Lending)
is attached as Appendix A.
Government's role is appropriately the
vigorous enforcement of the deceptive practices and civil rights laws. Any
objective analysis of these laws must reach the conclusion that they provide
powerful tools to address both fraudulent sales practices and discrimination.
Strong enforcement is appropriate because it addresses the real problem, the
fraudulent and discriminatory practices that make an otherwise legitimate loan
"predatory", without affecting the overall ability of lenders to make loans
available to working American families with less than perfect credit. That is
the appropriate policy balance between dealing with the real misfortunes which a
few borrowers have experienced and the continued availability of credit to
working American families. We urge Congress to encourage that an appropriate
balance be maintained.
Thank you for the opportunity to address the
Committee, and I look forward to any questions you may have.
LOAD-DATE: July 31, 2001