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SUBPRIME AND PREDATORY LENDING: NEW
REGULATORY GUIDANCE, CURRENT
MARKET CONDITIONS, AND EFFECTS ON
REGULATED FINANCIAL INSTITUTIONS

HEARING
BEFORE THE

SUBCOMMITTEE ON FINANCIAL INSTITUTIONS
AND CONSUMER CREDIT
OF THE

COMMITTEE ON FINANCIAL SERVICES
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED TENTH CONGRESS
FIRST SESSION

MARCH 27, 2007

Printed for the use of the Committee on Financial Services

Serial No. 110–18

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SUBPRIME AND PREDATORY LENDING: NEW REGULATORY GUIDANCE, CURRENT
MARKET CONDITIONS, AND EFFECTS ON REGULATED FINANCIAL INSTITUTIONS

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SUBPRIME AND PREDATORY LENDING: NEW
REGULATORY GUIDANCE, CURRENT
MARKET CONDITIONS, AND EFFECTS ON
REGULATED FINANCIAL INSTITUTIONS

HEARING
BEFORE THE

SUBCOMMITTEE ON FINANCIAL INSTITUTIONS
AND CONSUMER CREDIT
OF THE

COMMITTEE ON FINANCIAL SERVICES
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED TENTH CONGRESS
FIRST SESSION

MARCH 27, 2007

Printed for the use of the Committee on Financial Services

Serial No. 110–18

(
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WASHINGTON

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2007

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HOUSE COMMITTEE ON FINANCIAL SERVICES
BARNEY FRANK, Massachusetts, Chairman
PAUL E. KANJORSKI, Pennsylvania
MAXINE WATERS, California
CAROLYN B. MALONEY, New York
LUIS V. GUTIERREZ, Illinois
´
NYDIA M. VELAZQUEZ, New York
MELVIN L. WATT, North Carolina
GARY L. ACKERMAN, New York
JULIA CARSON, Indiana
BRAD SHERMAN, California
GREGORY W. MEEKS, New York
DENNIS MOORE, Kansas
MICHAEL E. CAPUANO, Massachusetts
´
RUBEN HINOJOSA, Texas
WM. LACY CLAY, Missouri
CAROLYN MCCARTHY, New York
JOE BACA, California
STEPHEN F. LYNCH, Massachusetts
BRAD MILLER, North Carolina
DAVID SCOTT, Georgia
AL GREEN, Texas
EMANUEL CLEAVER, Missouri
MELISSA L. BEAN, Illinois
GWEN MOORE, Wisconsin,
LINCOLN DAVIS, Tennessee
ALBIO SIRES, New Jersey
PAUL W. HODES, New Hampshire
KEITH ELLISON, Minnesota
RON KLEIN, Florida
TIM MAHONEY, Florida
CHARLES A. WILSON, Ohio
ED PERLMUTTER, Colorado
CHRISTOPHER S. MURPHY, Connecticut
JOE DONNELLY, Indiana
ROBERT WEXLER, Florida
JIM MARSHALL, Georgia
DAN BOREN, Oklahoma

SPENCER BACHUS, Alabama
RICHARD H. BAKER, Louisiana
DEBORAH PRYCE, Ohio
MICHAEL N. CASTLE, Delaware
PETER T. KING, New York
EDWARD R. ROYCE, California
FRANK D. LUCAS, Oklahoma
RON PAUL, Texas
PAUL E. GILLMOR, Ohio
STEVEN C. LATOURETTE, Ohio
DONALD A. MANZULLO, Illinois
WALTER B. JONES, JR., North Carolina
JUDY BIGGERT, Illinois
CHRISTOPHER SHAYS, Connecticut
GARY G. MILLER, California
SHELLEY MOORE CAPITO, West Virginia
TOM FEENEY, Florida
JEB HENSARLING, Texas
SCOTT GARRETT, New Jersey
GINNY BROWN-WAITE, Florida
J. GRESHAM BARRETT, South Carolina
JIM GERLACH, Pennsylvania
STEVAN PEARCE, New Mexico
RANDY NEUGEBAUER, Texas
TOM PRICE, Georgia
GEOFF DAVIS, Kentucky
PATRICK T. MCHENRY, North Carolina
JOHN CAMPBELL, California
ADAM PUTNAM, Florida
MICHELE BACHMANN, Minnesota
PETER J. ROSKAM, Illinois
KENNY MARCHANT, Texas
THADDEUS G. McCOTTER, Michigan

JEANNE M. ROSLANOWICK, Staff Director and Chief Counsel

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SUBCOMMITTEE

ON

FINANCIAL INSTITUTIONS

AND

CONSUMER CREDIT

CAROLYN B. MALONEY, New York, Chairwoman
MELVIN L. WATT, North Carolina
GARY L. ACKERMAN, New York
BRAD SHERMAN, California
LUIS V. GUTIERREZ, Illinois
DENNIS MOORE, Kansas
4PAUL E. KANJORSKI, Pennsylvania
MAXINE WATERS, California
JULIA CARSON, Indiana
´
RUBEN HINOJOSA, Texas
CAROLYN MCCARTHY, New York
JOE BACA, California
AL GREEN, Texas
WM. LACY CLAY, Missouri
BRAD MILLER, North Carolina
DAVID SCOTT, Georgia
EMANUEL CLEAVER, Missouri
MELISSA L. BEAN, Illinois
LINCOLN DAVIS, Tennessee
PAUL W. HODES, New Hampshire
KEITH ELLISON, Minnesota
RON KLEIN, Florida
TIM MAHONEY, Florida
CHARLES A. WILSON, Ohio
ED PERLMUTTER, Colorado

PAUL E. GILLMOR, Ohio
TOM PRICE, Georgia
RICHARD H. BAKER, Louisiana
DEBORAH PRYCE, Ohio
MICHAEL N. CASTLE, Delaware
PETER T. KING, New York
EDWARD R. ROYCE, California
STEVEN C. LATOURETTE, Ohio
WALTER B. JONES, JR., North Carolina
JUDY BIGGERT, Illinois
SHELLEY MOORE CAPITO, West Virginia
TOM FEENEY, Florida
JEB HENSARLING, Texas
SCOTT GARRETT, New Jersey
GINNY BROWN-WAITE, Florida
J. GRESHAM BARRETT, South Carolina
JIM GERLACH, Pennsylvania
STEVAN PEARCE, New Mexico
RANDY NEUGEBAUER, Texas
GEOFF DAVIS, Kentucky
PATRICK T. MCHENRY, North Carolina
JOHN CAMPBELL, California

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CONTENTS
Page

Hearing held on:
March 27, 2007 .................................................................................................
Appendix:
March 27, 2007 .................................................................................................

1
67

WITNESSES
TUESDAY, MARCH 27, 2007
Antonakes, Steven L., Commissioner of Banks, Massachusetts Division of
Banks, on behalf of the Conference of State Banking Supervisors ..................
Bair, Hon. Sheila C., Chairwoman, Federal Deposit Insurance Corporation .....
Braunstein, Sandra F., Director, Division of Consumer and Community Affairs, Federal Reserve Board ...............................................................................
Calhoun, Michael D., President, Center for Responsible Lending ......................
Dinham, Harry H., CMC, President, National Association of Mortgage Brokers ........................................................................................................................
Fishbein, Allen, Director of Housing and Credit Policy, Consumer Federation
of America .............................................................................................................
Johnson, Hon. JoAnn, Chairman, National Credit Union Administration .........
Pollock, Alex J., resident fellow, American Enterprise Institute .........................
Reich, Hon. John M., Director, Office of Thrift Supervision ................................
Robbins, John M., Chairman, Mortgage Bankers Association .............................
Rushton, Emory W., Senior Deputy Comptroller, Office of the Comptroller
of the Currency .....................................................................................................
Silver, Josh, Vice President of Research and Policy, National Community
Reinvestment Coalition .......................................................................................

15
6
13
49
55
52
10
57
8
54
12
51

APPENDIX
Prepared statements:
Antonakes, Steven L. .......................................................................................
Bair, Hon. Sheila C. .........................................................................................
Braunstein, Sandra F. ......................................................................................
Calhoun, Michael D. .........................................................................................
Dinham, Harry H. ............................................................................................
Fishbein, Allen ..................................................................................................
Johnson, Hon. JoAnn .......................................................................................
Pollock, Alex J. .................................................................................................
Reich, Hon. John M. .........................................................................................
Robbins, John M. ..............................................................................................
Rushton, Emory W. ..........................................................................................
Silver, Josh ........................................................................................................
ADDITIONAL MATERIAL SUBMITTED

FOR THE

244
68
217
288
392
346
118
428
97
360
183
315

RECORD

Statement of the Consumer Mortgage Coalition ...........................................
Letter to Chairwoman Maloney and Ranking Member Gillmor from the
National Association of Federal Credit Unions ..........................................
Statement of the National Association of Realtors ........................................
Series of newspaper articles from the Charlotte Observer ...........................
Responses from the Comptroller of the Currency to questions submitted
by Hon. Brad Miller ......................................................................................
Responses from the Federal Deposit Insurance Corporation to questions
submitted by Hon. Tom Price ......................................................................

440
457
459
467
483
490

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VI
Page

Responses from the Board of Governors of the Federal Reserve System
to questions submitted by Hon. Tom Price .................................................
Responses from the Center for Responsible Lending to questions submitted by Hon. Tom Price ............................................................................
Responses from the Comptroller of the Currency to questions submitted
by Hon. Tom Price ........................................................................................

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SUBPRIME AND PREDATORY LENDING:
NEW REGULATORY GUIDANCE, CURRENT
MARKET CONDITIONS, AND EFFECTS ON
REGULATED FINANCIAL INSTITUTIONS
Tuesday, March 27, 2007

U.S. HOUSE OF REPRESENTATIVES,
SUBCOMMITTEE ON FINANCIAL INSTITUTIONS
AND CONSUMER CREDIT
COMMITTEE ON FINANCIAL SERVICES,
Washington, D.C.
The subcommittee met, pursuant to notice, at 10 a.m., in room
2128, Rayburn House Office Building, Hon. Carolyn B. Maloney
[chairwoman of the subcommittee] presiding.
Present: Representatives Maloney, Watt, Sherman, Gutierrez,
Moore of Kansas, Hinojosa, McCarthy, Baca, Green, Clay, Miller of
North Carolina, Scott, Cleaver, Bean, Davis of Tennessee, Ellison,
Klein, Perlmutter; Gillmor, Price, Pryce, Castle, Biggert, Capito,
Hensarling, Neugebauer, McHenry, and Campbell.
Also present: Representative Bachus.
Chairwoman MALONEY. This hearing of the Subcommittee on Financial Institutions and Consumer Credit entitled ‘‘Subprime and
Predatory Lending: New Regulatory Guidance, Current Market
Conditions, and Effects on Regulated Institutions’’ will come to
order. Without objection, all members’ opening statements will be
made part of the record. We have two very distinguished panels in
front of us today and a very key topic to discuss. Unfortunately, we
must give up this room promptly at 1:45, so the ranking member
and I have agreed to limit opening statements to the Chair and
ranking member of the full committee and of this subcommittee.
And we are going to do everything we can do in our power to end
the first panel by 12:30 so that we can hear from the second panel.
This first hearing of the Financial Institutions and Consumer
Credit Subcommittee in the 110th Congress addresses a critical
and escalated issue. We are facing, by all accounts, a tsunami of
defaults and foreclosures in the primary subprime market. In each
of our districts, our constituents are encountering payment shock
as their initial teaser rate ends and their loan is reset to a higher
rate. This is happening at the same time homeowners are having
a more difficult time refinancing because their homes are no longer
increasing in value so they are defaulting and going into foreclosure and losing their homes. Every analyst says that the third
quarter of this year and the fourth could be even worse than the
rates of default and foreclosure that we have seen to date. By some
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2
estimates, 2.2 million homeowners with subprime loans made
through 2006 will lose their homes. As this chart shows, rates of
default and foreclosure, which were decreasing, are now on a sharp
increase. We also have a dramatic increase in the number of
subprime loans being packaged into securities from less than 8 percent of the market in 2001 to 20 percent last year, a more than
doubling in 5 years. In the last month, a very significant downward
market correction is taking place in the secondary market. Yesterday, for example, Morgan Stanley announced it was auctioning off
almost $2.5 billion worth of subprime mortgages from New Century, one of the largest subprime lenders. At least four large
subprime lenders are already in bankruptcy. The debate has moved
on to whether the turmoil in the subprime market will infect the
larger economy.
Against that backdrop, this hearing takes on as its starting point
the proposed guidance on subprime lending issued jointly on March
2nd by the five banking Federal regulators, all of whom are testifying today. This guidance has been endorsed by the Conference of
State Bank Regulators. The guidance is simple, commonsense: Do
not make loans people cannot repay. It sets out principles for
subprime lending, which require lenders to assess a borrowers’
ability to pay over the whole life of the loan, that is whether the
borrower can pay the loan at its fully indexed rate, assuming a
fully amortized payment schedule. The guidance requires proof of
income and ability to pay, ending no-doc loans or as they are called
in the business, ‘‘liar loans.’’ At the same time, it allows for flexibility and underwriting for those who may not have the traditional
indicators of good credit. This guidance tries to strike a balance; we
want to maximize the dream of homeownership while minimizing
foreclosures.
This is a first in a series of hearings planned for this topic. With
legislation in mind, I have questions for both panels that go beyond
the guidance itself to what I consider the larger picture. As this
chart shows, only about a quarter of the primary market in
subprime loans is directly regulated by the Federal banking regulators. Another quarter, consisting of mortgage subsidiaries of bank
holding companies, is indirectly regulated by the Fed. And about
half, consisting of State regulated banks and finance companies, is
regulated by a patchwork of State laws.
Assuming the proposed guidance goes into effect for the federally
regulated quarter of the market, how can it reach the other three
quarters? That is the essential question of this hearing. Some suggestions have been made, and I would like the witnesses to comment on them. First, as Federal officials have said, and as Senator
Dodd has pointed out, the Federal Reserve has broad powers under
HOEPA, the Home Ownership and Equity Protection Act, to regulate unfair and deceptive practices for all lenders. Should the Fed
use those powers to extend this guidance to the entire market? I
understand that some of the regulators support such a move. Secondly, who could enforce that for each of the different sectors? Also,
what about the suggestion of extending the Fed’s direct regulatory
powers to the mortgage subsidiaries of bank holding companies so
that quarter of the market also has to follow the principles of the
guidance. And next what about the State banking regulators, can

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3
they act to promulgate the principles of the guidance nationwide or
should we have a national subprime standard tracking the guidance and, if so, who should enforce that?
I am interested in knowing how to extend the guidance to the
secondary market. Lenders will not make these loans if they cannot
sell them. I believe that the GSEs as leaders in the secondary market should stop buying loans that do not conform to the guidance,
as Freddie Mac has already done. How do you think we can best
extend the principles of the guidance, not only to the GSEs but also
to the other secondary market participants? Finally, what can we
do to help current borrowers in a responsible manner? The regulators have encouraged lenders to exercise forbearance, but how do
they plan to implement that policy, and can Congress help support
that effort? I know that Senator Dodd is calling together many of
the participants to come forward with a plan.
These are pressing problems requiring prompt attention. Of
course, we wish the regulators had acted sooner, but I applaud
them for having taken this first step, and I look forward to their
testimony. I now recognize the ranking member, Mr. Gillmor, for
10 minutes.
Mr. GILLMOR. I would like to thank the Chair for calling what
is a very important hearing today and also I am delighted to see
such a distinguished panel. I look forward to working with the
Chair and others in Congress on this very important public policy
concern.
I think it is prudent that the committee begin its investigation
into predatory and subprime lending by looking into how we got
here and what the regulators have done to date. The title points
it out but I think it is critical that the committee distinguish between these two types of lending; predatory lending and subprime
lending are two different animals. Some in Congress and some in
the press have blurred the line between the issues but they are distinct problems requiring distinct solutions. In the subprime area,
there is no doubt that the past several years have seen a general
loosening of underwriting standards. America has one of the highest rates of homeownership in the world. That is good. And we
ought to continue to encourage homeownership. However, you are
not doing anyone a favor by putting them in a house with a type
of mortgage that when interest rates go up, or when they have an
economic reverse, they are thrown out of their house.
During then-Chairman Greenspan’s and Chairman Bernanke’s
appearances before the committee previously, I have made it a
point to repeatedly voice my concern regarding the proliferation of
interest-only and other alternative mortgage products, including
those with negative amortization. After interest rates began rising
and the housing market began cooling, mortgage originators were
pressured by the market to match the volume of the height of the
boom. This was too often accomplished through a loosening of credit standards and clearly consumers were put into homes they could
not afford just 2 or 3 years down the road. Today, we find ourselves
on the leading edge of a market correction that has the potential
to harm many Americans. Some 20 subprime lenders have already
gone out of business. There will be pressures placed on Congress
to react swiftly to correct for the problems of subprime loans. And

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4
while it is a serious problem, I think it is important that we take
the time to do it right and not be too hasty and do it wrong. And
I am pleased to yield to the distinguished ranking member of the
full committee, Mr. Bachus.
Mr. BACHUS. I thank you, Mr. Gillmor, and I also thank Chairwoman Maloney for having this hearing and I look forward to hearing from our panelists. I think when we talk about subprime lending, the first thing we ought to focus on is the benefits of homeownership. I quote President Lyndon Johnson, he said, ‘‘For many
families homeownership is a source of pride and satisfaction of
commitment to community life.’’ The benefits of homeownership are
profound when it comes to not only families but also communities
and our Nation as a whole. I think that is really why I know regulators, the Administration, this Congress, we have all set as a priority homeownership for as many Americans who have the ability
and the desire to own their own home. It improves the educational
performances of the children whose parents own homes and it reduces crime rates—the higher homeownership goes, the lower the
crime rates go. And over the last probably 30 years or 40 years
there has been a recognition that all of our families, whether they
are low income or low middle income, should have the opportunity
to participate, have the opportunity to own their own home. It is
kind of interesting that one of the origins of subprime lending actually was in the Community Reinvestment Act of 1977, as far as the
statute. The CRA mandates—mandates, not suggests—that banks
and thrifts meet the credit needs of all communities in which they
are chartered and from which they take deposits, including lowand moderate-income borrowers. And this committee in the past
has actually had institutions in and questioned them on their commitment and their participation in extending loans, mortgage
loans, to individuals or families which had less than stellar credit
ratings or who really did not have good credit ratings, saying that
should not eliminate them from being able to purchase a home. So
there has actually been quite a lot of suggestion as well as statutory mandate in that regard.
As the chairman said, and as the ranking member said, we have
had a skyrocketing, not only of the number of these loans and the
percentage of these loans, but we have had so-called innovative
new loans, the interest-only loan, the adjustable rate loan. And I
know last September the regulators issued guidance and again
came back this last month and issued additional guidance. I have
looked at that guidance, and I would say that guidance, had it been
followed, would have resulted in a reduction in the number of defaults. Last March, I drew up legislation, worked with now-Chairman Frank, and he and I agreed on about 80 or 90 percent of a
subprime lending bill. I wish we passed that bill. We had some
members who did not want any regulation, and we had other members who wanted more regulation than what was in the bill, so
sadly, we were not able to build a consensus. But it is a shame that
sometimes we cannot come together and solve our differences. It
would have benefitted a lot of Americans who at least in the past
6 or 8 months have taken out loans.
I will say this about the guidance, and the reason that I last
March urged this committee to pass a subprime lending bill, some

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5
people said, ‘‘The regulators are taking care of that.’’ They are not
taking care of it in that there are—they are taking care of the federally-regulated institutions but there are a lot of State institutions, there are States like Alabama, my State, unlike Massachusetts, we are going to have the commissioner of banks from Massachusetts, you all have taken care of a lot of that problem with a
strong bill but there are about half of the States out there that
have no legislation. There are others where it is a hodgepodge of
legislation and it is interfering with people’s ability to get loans. So
we still need, because the Federal regulators, they do not include
regulation of mortgage brokers. And as we found anybody who is
listening to the news, studied what has been going on, knows that
we need some legislation addressing mortgage brokers. So I know
this committee is going to keep up its attempts to at least establish
some type of national standard.
I was sort of surprised last night, my bill, the bill that I introduced, and I have a written statement that talks about the different things I did in that bill including look at people’s ability to
pay, but the one thing about that bill, it was modeled after North
Carolina because everybody said that North Carolina was the gold
standard. Last night, ABC News had a documentary on the
subprime lending market and all the people who had lost money
and the highlight of the thing they showcased in that documentary
was a community where like 30 or 40 percent of the people in that
community have lost their homes. The homebuilder had come in
there and he had built these homes and a lot of people had come
and they bought these homes and they were underwater, they were
losing their homes. Guess where it was? It was in Concord, North
Carolina, with a strong State regulatory, so I do not know what
happened there. So it obviously shows that even when you have a
strong State bill, you have guidance from the Federal Government—I do not know, it would be interesting to know how those
loans occurred and what happened and whether it was just maybe
outright fraud.
But I do look forward to your testimony. The first line of defense
ought to always be the regulators. You are the professionals; we depend on you to address these problems. The only time that I like
to see this committee legislate is when you need statutory authority or where you—and I will say this about our bank regulators,
I think they have been on top of this issue and other issues, at
least they are on top of it now, I will put it that way. But we still
need in my mind legislation because we have a lot of State—we
have a lot of institutions and mortgage brokers who are not regulated, that your regulation does not reach.
So with that, I would yield back the balance of my time.
Chairwoman MALONEY. The gentleman’s time has expired. I
yield 2 minutes to Mr. Miller from the great State of North Carolina.
Mr. MILLER OF NORTH CAROLINA. Thank you, Madam Chairwoman. In the great bipartisan tradition of this committee, I find
myself agreeing with much of what my colleagues on the other side
of the aisle have said. I agree with Mr. Gillmor that we do need
to be careful in developing legislation in this committee, that we
not rush into something because subprime lending is in the head-

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6
lines, but we cannot let the need for careful legislation become an
excuse for inaction. We should pass legislation this year, this is
something that has been in the works for a long time. I also agree
with Mr. Bachus, with whom I had many discussions last year
about this issue, that we need to continue to support homeownership by the middle class. Homeownership is the single best way
that the middle class builds wealth, by buying a home, by faithfully
paying a mortgage month after month, by building equity in a
home, the equity they build becomes the bulk of their life savings.
The savings rate for families now is slightly less than zero. We cannot take away homeownership as a way for the middle class to
build wealth. A healthy mortgage market helps middle-class families build wealth by owning a home. It also makes it possible for
them to borrow money against their home when they face one of
life’s rainy days. But we have had in this country too much lending
that does not help middle-class families build wealth but steals
wealth from them, predatory loans that strip their equity with upfront costs and fees and loans that a middle-class family cannot
possibly repay, so in 2 or 3 years they have to be back borrowing
money again, again paying up-front costs and fees, losing more and
more of their life savings. We have the example of many States
that have provided effective consumer protections and have struck
a balance that middle-class families, they need to borrow money to
buy a home and need to borrow money against their home to deal
with life’s rainy days. And we should follow and look closely at the
example of those States and develop a strong national standard
that protects every American consumer everywhere. Thank you.
Chairwoman MALONEY. Thank you. I would like now to introduce
the panel. They are all distinguished. They have distinguished resumes. We are going to put all of the resumes in the record in the
interest of time. I would first like to introduce the Honorable Sheila Bair, Chairwoman of the Federal Deposit Insurance Corporation,
for 5 minutes.
STATEMENT OF THE HONORABLE SHEILA C. BAIR,
CHAIRWOMAN, FEDERAL DEPOSIT INSURANCE CORPORATION

Ms. BAIR. Thank you, Madam Chairwoman, Ranking Member
Gillmor, and members of the subcommittee. Thank you for holding
this hearing on the important subject of subprime lending and
predatory practices in the subprime mortgage market. Homeownership contributes to neighborhood stability and is an important way
that many individuals and families build wealth.
Traditionally, homeownership has been a low-risk, stable investment representing the largest asset for the typical family. Government policies, ranging from tax incentives to the formation of government-sponsored enterprises, have long encouraged homeownership in recognition of its important individual and societal benefits.
Mortgage lending practices that build debt, rather than wealth,
however, not only harm individual homeowners, but also undermine these important social benefits.
The mortgage markets have changed significantly in recent
years, especially for subprime mortgages. Intense lender competition, historically low interest rates, rapid home price appreciation
and, crucially, investor demand for mortgage paper facilitated the

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dramatic growth in the subprime market between 2003 and 2005.
New mortgage products were specifically designed to attract borrowers with low initial rates which would then reset to much higher interest rates for the remainder of the loan term. These types
of loans were simultaneously attractive both to borrowers, who
could obtain larger loans at lower cost for at least a short time, and
to investors in mortgage loan pools, who were attracted to the
above-market yields. Particularly pervasive were so-called 2/28 and
3/27 hybrid ARMs, which combined a fixed introductory rate for the
first 2 to 3 years followed by significant upward adjustments.
There is no doubt that many subprime borrowers have benefitted
from the expansion of mortgage credit. However, rather than building wealth, many other borrowers are now struggling to keep their
homes. Repeat refinancings have taken equity from their homes
and adjustable rate features have challenged their ability to continue making payments. In previous years, many of these borrowers could have refinanced their mortgages or sold their homes
at a profit to repay their debt in full. Now, as home prices have
stagnated or even declined in many areas of the country, more borrowers find themselves trapped in mortgages they cannot afford to
pay.
In 2006, almost three quarters of non-agency securitized
subprime mortgage originations were adjustable rate mortgages,
primarily 2/28 and 3/27 hybrid ARMs. Estimates are that at least
2.1 million subprime hybrid ARMs are outstanding today. This
means that approximately 1.7 percent of U.S. households have 2/
28 or 3/27 loans. Subprime borrowers are particularly at risk because they already have very little financial cushion. Subprime borrowers spend nearly 37 percent of their after-tax income on mortgage payments and other costs of housing, roughly 20 percentage
points more than prime borrowers spend. Of ARMs originated in
2006, a full 24 percent have negative home equity, in other words,
borrowers owe more than their homes are worth. Financial stress
on subprime borrowers with adjustable rate mortgages will increase further as rates reset. The FDIC is concerned that the
subprime borrowers who have taken these loans will face an array
of serious financial problems.
In the past year, the FDIC and the other Federal financial institution regulatory agencies issued guidance regarding the risks of
non-traditional mortgages to address concerns about interest-only
and payment-option ARMs, which are offered primarily to prime
and Alt-A borrowers. Since adjustable rate products in the
subprime market raise similar and additional concerns, the Federal
banking agencies also proposed a statement on subprime mortgage
lending. Both of these documents restate two very fundamental
lending principles: A loan should be approved based on a borrowers’ ability to repay at the fully indexed rate; and borrowers
should be provided with early disclosures to fully understand the
costs and terms of the loan. In addition, in January, the FDIC
issued a supervisory policy on predatory lending. This policy describes certain characteristics of predatory loans and reaffirms that
such practices are inconsistent with safe and sound lending, and
undermine individual, family, and community well-being.

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The FDIC aggressively addresses predatory lending through examinations and supervisory actions. When examiners encounter
loans with predatory characteristics, the FDIC takes whatever supervisory actions are necessary to effect correction. Our examination process has led to the issuance of more than a dozen formal
and informal enforcement actions that are currently outstanding
against FDIC-supervised institutions that failed to meet prudent
mortgage lending standards.
Widespread credit distress in the subprime mortgage market,
with especially pronounced problems among independent mortgage
lenders, suggests the need for a comprehensive response that
assures that all lenders are subject to certain baseline requirements. Guidelines and other supervisory standards promulgated by
Federal bank regulators apply to only a portion of the market.
Moreover, the lack of uniform standards creates negative competitive pressures on insured institutions. A national anti-predatory
lending standard would help assure basic uniform protections for
all borrowers as well as create a more level competitive playing
field for regulated entities.
There are two possible approaches to creating and implementing
an anti-predatory lending standard that would apply across the
mortgage lending industry. First, Congress could pass a law that
establishes a set of anti-predatory lending standards. A statutory
approach to establishing such standards could draw from our current and proposed Federal regulatory guidelines, as well as existing
State anti-predatory lending statutes. It should raise the bar by
strengthening protections available to borrowers. At its core, it
should address at least two important areas; one, the ability of the
borrower to repay the loan; and, two, misleading marketing and
disclosures that prevent borrowers from fully understanding the
costs and terms of loan products. Alternatively, or in conjunction
with the statutory process, the Federal Reserve Board could exercise rulemaking authorities it has under the Home Ownership and
Equity Protection Act to address abusive practices by all mortgage
lenders for all loans, not just those that are high cost. We understand that the Federal Reserve is in the midst of reviewing the regulations that implement this Act. The FDIC would strongly support
them should they decide to make greater use of authorities provided by this law.
Many abuses might be more effectively addressed by regulation
rather than statute, especially in areas—
Chairwoman MALONEY. The gentlelady’s time has expired.
Ms. BAIR. Okay, sorry.
[The prepared statement of Chairman Bair can be found on page
68 of the appendix.]
Chairwoman MALONEY. The Honorable John Reich, Director of
the Office of Thrift Supervision.
STATEMENT OF THE HONORABLE JOHN M. REICH, DIRECTOR,
OFFICE OF THRIFT SUPERVISION

Mr. REICH. Good morning, Madam Chairwoman, Ranking Member Gillmor, and members of the committee, I am delighted to be
here today to have the opportunity to present to you the views of
the Office of Thrift Supervision relating to subprime and predatory

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lending. I have been involved in the banking business for the past
46 years. During this time, I have witnessed six economic cycles
characterized by recession, recovery, growth, and decline. During
one turbulent period back in the 1981/1982 time period, the prime
rate hit 21 percent, perhaps one of the most alarming periods of
my own career in the banking business. These experiences have
left me with two steadfast beliefs about banking and bank supervision: one, that you cannot have too much money in your loan loss
reserves; and two, you cannot have too much money in your capital
account. A further precept that I hold is that you also have to protect your customers for without them you have nothing.
Each of these principles is relevant in the context of today’s discussion. Based on these three guideposts, I believe that I can report
to you that the vast majority of the institutions that we regulate
are conducting their banking activities in a safe and sound manner, consistent with consumer production laws and regulations.
However, we are in the midst of a transition in the economic cycle
that has troubling activity, particularly from a consumer’s standpoint. The result is a difficult correction in response to certain unchecked lending practices.
As Members of Congress, I would expect that you have three
major concerns: your constituency; the financial industry that you
oversee; and where do we go from here. In my written statement,
I detail our oversight of subprime mortgage products and OTS’ efforts to combat predatory lending and promote consumer education
and financial literacy. I want to speak to the nature of the problem
we are facing, the causes of the problem, and some thoughts on
how it might be fixed.
First, two issues obviously have been identified, subprime lending and predatory lending, but these are not synonymous. Certainly not all subprime lending is predatory and not all predatory
lending is to the subprime market. Appropriately underwritten
loans to subprime borrowers are in fact important and legitimate
elements of our financial economy. Timely and appropriate regulatory responses can address issues of predatory lending in our regulated financial entities without restricting credit to worthy borrowers. A significant OTS concern, that I believe is shared by all
agencies, is striking the right balance. We want to promote responsible lending by the institutions that we regulate. We do not want
to divert subprime borrowers to less regulated or unregulated lenders. We need to ensure sound underwriting of subprime loan products, which will help to weed out predatory lending.
Next, the problem of where our subprime lending activities are
concentrated; it is not primarily in the thrift industry. Current
total national mortgage debt is approximately $10 trillion.
Subprime mortgages account for about 13 percent or $1.3 trillion
of this amount of the national mortgage debt; 2006 data show that
19 of our 845 thrifts, about 2.2 percent of the total number of
thrifts that we supervise, have significant subprime lending operations defined as at least 25 percent of capital. These institutions
hold $35 billion in subprime mortgages equal to about 5 percent of
total thrift mortgage holdings. Nationwide, there are about 125
subprime lenders out of the total universe of charters of about
8,700, so about 1.4 percent of all institutions nationwide have sig-

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nificant subprime programs—loans are originated through mortgage bankers. While there is not consistent data on the number of
licensed mortgage brokers in the United States, there are many
more individuals working as loan originators and brokers without
any type of license or registration. In addition, testing and education requirements are suspect and background checks may be—
Chairwoman MALONEY. The gentleman’s time has expired.
[The prepared statement of Director Reich can be found on page
97 of the appendix.]
Chairwoman MALONEY. Next, the Honorable JoAnn Johnson,
Chairwoman of the National Credit Union Administration.
STATEMENT OF THE HONORABLE JOANN JOHNSON,
CHAIRMAN, NATIONAL CREDIT UNION ADMINISTRATION

Ms. JOHNSON. Thank you, Madam Chairwoman, and members of
the subcommittee. I am Chairman of the National Credit Union
Administration, an independent Federal agency that regulates or
insures over 8,400 credit unions with 87 million members. Home
mortgage lending has long been a part of the way credit unions
serve their members. Approximately 68 percent of all federally-insured credit unions offer mortgage loans. Those that do not tend
to be small institutions that cannot afford the required expertise or
infrastructure. Additionally, the statutory 10 percent loan to one
borrower limitation makes it more difficult for a small credit union
to grant large mortgage loans. Credit unions represent 9 percent of
all mortgage loans outstanding in federally-insured depository institutions. When considering all mortgage lending, including that
by non-federally-insured lenders, credit unions originated 2 percent; 61 percent of these credit union mortgage loans are fixed rate,
while 39 percent are adjustable.
Because mortgage lending has evolved to now include hybrid or
exotic mortgage products, NCUA has modified the way in which we
collect information about mortgage lending on our 5300 Report,
which is the agency’s quarterly reporting tool. This change will enable NCUA to gain more precise information about credit union
mortgage lending and will enhance our oversight capability.
The House Financial Services Committee has properly voiced
concern about the underwriting standards and quality of consumer
disclosures regarding hybrid loans, including 2/28 and 3/27. NCUA
shares the committee’s concerns about riskier hybrids that may be
detrimental to consumers, particularly borrowers in the subprime
market. Fortunately, these hybrid loans are not prevalent in credit
union portfolios, partially because of the statutory provisions that
prohibit prepayment penalties and establish a limit on interest
rates.
Demand for mortgages by credit union members remains high.
Mortgage loans led all types of loan growth in 2006 and comprise
almost half of all credit union loans. Given NCUA’s emphasis on
safety and soundness, we continue to closely monitor performance
indicators in the mortgage lending area. One indicator of a loan’s
quality, delinquency rates, are relatively low. Delinquencies greater
than 30 days are at .99 percent and 60 days stands at .34 percent.
Charge-ops, which occur when a borrower cannot pay, are at .03

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11
percent. While these indicators are good, NCUA is committed to a
high degree of vigilance in this area.
NCUA has also issued guidance to credit unions on the topic of
subprime lending. Beginning in 1995, NCUA recognized the emergency of risk-based lending and outlined the advantages and disadvantages of such lending to borrowers with subprime credit. In
1999 and again in 2004, NCUA reiterated the value of family-managed risk-based lending programs as a way to reach out to all
members, including those in the subprime area. At the same time,
we reminded credit unions of the importance of stringent underwriting and monitoring processes. Recognizing potential problems
in 2005, NCUA specifically addressed emerging risks in exotic
mortgage lending by issuing a supervisory alert to all examiners
and henceforth to all credit unions. This served notice that NCUA
examiners would be monitoring trends in areas of high value appreciation and evaluating both interest rate risks and credit risks
associated with these newer mortgage products.
In concert with my fellow Federal regulators, non-traditional
mortgage guidance was issued in 2006 and work is now underway
on proposed subprime lending guidance. As this new guidance is
developed, NCUA is committed to making certain that disclosures
are improved and consumer protection strengthened, particularly
in helping avoid payment shocks and negative amortizations. Those
consumer protections are a vital part of our discussion today. Credit unions must comply with the same Federal regulations governing
mortgage lending as do other federally insured institutions, including Truth in Lending, RESPA, OPA, the Federal Disaster Preparedness Act, the Fair Housing Act, and OMDA.
Additionally, NCUA and the credit union industry have devoted
significant resources to assist members in disadvantaged communities. This commitment has manifested itself primarily through
affordably priced loans and financial education. Regarding financial
education, I would strongly suggest that while it is not a panacea,
financially literate consumers can be better consumers when it
comes to avoiding the pitfalls presented by this rapidly changing
market. NCUA administers the—
Chairwoman MALONEY. The gentlelady has 30 seconds remaining.
Ms. JOHNSON.—revolving loan fund, which makes grants to lowincome credit unions to assist with financial literacy and wealth
building.
NCUA has closely monitored recent dislocation in the subprime
market. NCUA is concerned that predatory lending in other areas
of the marketplace may increase the debt burden on credit union
members and negatively affect credit union asset quality. Even
though it represents a relatively small piece of the overall pie, the
mortgage lending that credit unions do is safe and sound.
Thank you very much.
[The prepared statement of Chairman Johnson can be found on
page 118 of the appendix.]
Chairwoman MALONEY. Thank you. Our next panelist, Mr.
Emory Rushton, is the Senior Deputy Comptroller from the Office
of the Comptroller of the Currency.

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STATEMENT OF EMORY W. RUSHTON, SENIOR DEPUTY COMPTROLLER, OFFICE OF THE COMPTROLLER OF THE CURRENCY

Mr. RUSHTON. Thank you, Chairwoman Maloney, Ranking Member Gillmor, and members of the subcommittee. I appreciate this
opportunity to talk with you about mortgage lending in national
banks and our supervision of it, especially subprime lending that
is so much in the news today. I bring the perspective of 42 years
as a national bank examiner—through good times and bad. During
that time, I have had the opportunity to examine banks throughout
the country, and I have spent the last decade here in Washington
working on bank supervision policy.
We at the OCC are very concerned about the problems in the
subprime market. Yet, it is easy to forget in this environment that
these loans have enabled millions of Americans, including many
low- and moderate-income people, to become homeowners for the
first time. Most of these folks are paying their loans on time, and
we expect they will continue to do so. Morever, as Ranking Member
Gillmor has observed, subprime loans are not inherently predatory
or abusive. Those that are have no place in the banking system.
When unfair treatment does occur, we in the government have a
distinct responsibility to help make it right, and we take that responsibility very seriously. However, OCC bank supervision is
aimed primarily at preventing abuse before it occurs, before damage is done.
OCC became concerned in 2002 about the growth of exotic mortgages that carried the potential for a big payment shock, and we
responded in an escalating fashion, privately and publicly. By 2005,
we were instructing our examiners to more aggressively address
the risk of these products during their examinations of national
banks because we concluded that standards had slipped far
enough. This was at a time, I might add, when home prices were
still going up. That intervention is one reason that you will find so
few payment-option negatively amortizing loans in national banks
today. Shortly after that, we initiated the interagency process that
resulted in the non-traditional mortgage guidance that was issued
last fall.
Our attention today, though, is focused on the subprime sector
and especially on hybrid ARMs, which now make up the bulk of the
subprime business. By their very nature, subprime borrowers who
take out these loans are especially vulnerable to payment shock.
We have addressed this and other key features of these loans in
the guidance that is now out for comment.
The subcommittee’s invitation letter specifically asked what we
expect the results of that guidance to be, both good and bad. To be
sure, there needs to be a return to more realistic underwriting
standards, and the guidance should have that positive effect. It
makes no sense to make loans that cannot be repaid. But we cannot ignore the likelihood that tighter underwriting will mean fewer
and smaller loans.
I want to emphasize, Madam Chairwoman, that national banks
are not the dominant players in the subprime market. Last year,
they produced less than 10 percent of all new subprime mortgages,
and their delinquency rates on these loans are about half the in-

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dustry average. We know of some institutions that have actually
abandoned their plans for a national bank charter rather than subject their subprime lending to supervision by the OCC. But of
course these numbers do not matter much to somebody who is facing losing their home through foreclosure. OCC strongly encourages all national banks to work with troubled borrowers to help
them resolve their problems.
It is an unfortunate fact, though, that regulatory oversight tends
to be less rigorous in precisely those parts of the financial system
where practices are most problematic. We hope the guidance that
we have proposed will inspire comparable measures by other regulators, as in fact did happen with the nontraditional guidance we
issued last fall.
Madam Chairwoman, our capital and credit markets have enabled record levels of homeownership. We play an important role
in overseeing those markets and in taking action when necessary
to preserve equilibrium and balance. But our authority does not extend to important components of that market, including many
originators, aggregators, securitizers, and funding sources.
In conclusion, let me assure you that my colleagues and I intend
to preserve bank safety and soundness and fair treatment of customers, and we try to do this through supervision that stems abuse
without thwarting healthy innovation. Consumers deserve no less.
We look forward to working with the subcommittee on these issues.
[The prepared statement of Comptroller Rushton can be found on
page 183 of the appendix.]
Chairwoman MALONEY. Ms. Sandra Braunstein, Director of the
Division of Consumer and Community Affairs of the Federal Reserve Bank.
STATEMENT OF SANDRA F. BRAUNSTEIN, DIRECTOR, DIVISION OF CONSUMER AND COMMUNITY AFFAIRS, FEDERAL
RESERVE BOARD

Ms. BRAUNSTEIN. Thank you. Chairwoman Maloney, Ranking
Member Gillmor, and members of the subcommittee, I appreciate
the opportunity to discuss how current subprime practices and
products effect homeownership and foreclosure. Subprime lending
has grown rapidly in recent years. In 1994, less than 5 percent of
mortgage originations were subprime, but by 2005, about 20 percent of new mortgage loans were subprime, many of which were
adjustable rate mortgages. Many of these loans have increased
homeownership rates. However, the largest recent increase in delinquency and foreclosure rates are for subprime borrowers with
ARMs, especially those loans with risk-layering features, such as
combining items like low documentation loans with simultaneous
seconds. There are indications that the market is addressing these
issues for new borrowers by tightening underwriting standards.
However, we remain very concerned that over the next 1 to 2 years
existing subprime borrowers, especially those with more recently
originated ARMs, and those with layered risks, may face more difficulty. As interest rates reset for these loans, some consumers may
have difficulty with the larger monthly payments. Therefore increases in foreclosure and delinquency rates are likely to continue.

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The Board has taken several actions to address concerns in the
subprime market. It is important to remember that overly broad
actions run the risk of constricting the market and returning to a
situation where some borrowers have very limited access to credit.
We want to encourage, not limit, mortgage lending by responsible
lenders.
I would like to note several of our activities in this regard. First,
the Federal Reserve conducts regular examinations of its institutions for safety and soundness and for compliance with consumer
protection laws. When we find problems in these institutions, we
require corrective action by bank management and, if necessary,
we use enforcement tools to address the problems.
Second, in response to witnesses in underwriting and risk management at the institutions we supervise, we have issued guidance
in concert with the other Federal banking agencies. This includes
the recent proposed guidance on subprime mortgages. This guidance applies to depository financial institutions and the subsidiaries of banks and bank holding companies. The guidance discusses
prudent underwriting practices, including the capacity of the borrower to repay the loan at the fully indexed rate. The guidance also
reminds institutions to clearly communicate the risks and features
of these products to consumers in a timely manner even before and
when application is taken.
Third, in 2001, the Board revised the HOEPA rules in response
to renewed concerns about predatory lending. In this rulemaking,
the Board utilized its authority to prohibit unfair or deceptive practices. Specifically, the Board issued rules that prohibit a HOEPA
lender from refinancing one of its own loans with another HOEPA
loan or flipping within the first year. We also adopted a prohibition
on demand notes for high cost closed-in mortgages. These revisions
to HOEPA are cases where the Board determined that they could
write bright line rules prohibiting unfair practices. However, because determination of unfairness or deception depends heavily on
the facts of an individual case, it is very difficult to craft rules
without unintended consequences. The Board has undertaken a
major review of Regulation Z which implements the Truth in Lending Act of which HOEPA is a part. During this review, the Board
will determine if there are opportunities to further utilize our
HOEPA authority.
Fourth, the Community Affairs offices in the Federal Reserve
Banks have responded to mortgage delinquency and foreclose in
ways that are directly responsive to the consumer needs in specific
markets. Various initiatives conducted in concert with local community partners have identified responsive strategies and helped
troubled borrowers. A list of these and other Federal Reserve initiatives are included with my written testimony. We will continue
to pursue opportunities to help borrowers and preserve access to
responsible lending.
[The prepared statement of Ms. Braunstein can be found on page
217 of the appendix.]
Chairwoman MALONEY. Thank you. Mr. Steven Antonakes, commissioner of the Massachusetts Division of Banks, on behalf of the
Conference of State Banking Supervisors. Thank you for being
here.

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15
STATEMENT OF STEVEN L. ANTONAKES, COMMISSIONER OF
BANKS, MASSACHUSETTS DIVISION OF BANKS, ON BEHALF
OF THE CONFERENCE OF STATE BANKING SUPERVISORS

Mr. ANTONAKES. Thank you. Good morning, Madam Chairwoman, Ranking Member Gillmor, and distinguished members of
the subcommittee and staff. My name is Steven Antonakes, and I
serve as the commissioner of banks for the Commonwealth of Massachusetts. I am also the chairman of the State Liaison Committee,
making me the newest voting member of the FDIC. It is my pleasure to testify today on behalf of the Conference of State Bank Supervisors.
The current state of our mortgage market, and the subprime
market in particular, have been well covered in the media. What
has received less coverage, and is not as well understood, is the
interplay between State and Federal mortgage supervision. In addition to regulating banks, 49 States plus the District of Columbia
currently provide regulatory oversight of the residential mortgage
industry. In recent years, the States have been working diligently
to improve supervision in this area.
In addition to the extensive regulatory and legislative efforts,
State attorneys general and State regulators have cooperatively
pursued unfair and deceptive practices in the mortgage market.
Through three nationwide settlements alone, State regulators have
returned over $800 million to homeowners. But successes are sometimes better measured by actions that never receive media attention. States routinely examine mortgage companies for compliance
not only with State law but for compliance with Federal laws as
well. These examinations are an integral part of a balanced regulatory system. Again, in 2006 alone, States took 3,694 enforcement
actions against mortgage brokers and mortgage lenders.
In an effort to further improve State supervision of the mortgage
industry, significant time and resources have been dedicated to the
development of a national mortgage licensing system. Recognizing
gaps in mortgage supervision, the States are creating this licensing
system to improve the efficiency and the effectiveness of the U.S.
mortgage market and to fight mortgage fraud and predatory lending. Scheduled to go live on January 1, 2008, this system will create a single record for every State-licensed mortgage company,
branch, and individual.
Despite all the actions taken by the States on an individual
basis, and on a coordinated nationwide basis, we are frustrated in
our attempts to protect consumers by the preemption of State consumer protection laws. State legislatures have the right to expect
the laws they pass to be followed by companies operating in their
States. Thirty-seven States have acted by passing predatory lending laws only to have them voided by the OCC and OTS rulings.
In regards to regulatory policy, recent developments have been
more positive and more productive. Both the State and Federal
guidance on non-traditional mortgage products provide sound underwriting standards and consumer protection provisions. As of
today, 29 States plus the District of Columbia have adopted the
parallel guidelines developed by CSBS and the American Association of Residential Mortgage Regulators or ARMOR. Ultimately,
CSBS expects all 50 States to adopt the guidance. Moreover, CSBS

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and ARMOR strongly support the recently proposed interagency
statement on subprime mortgage lending. Personally, I would like
to thank FDIC Chairman Bair for her leadership on the development of this statement and for ensuring an appropriate role for
State supervisors. CSBS and ARMOR are already working to develop a parallel statement for State regulators to use with their supervised entities.
In my written testimony, I have outlined several recommendations for your reference as Congress seeks to improve the residential mortgage market. In addition to Congress’ focus, the current
challenges for the mortgage industry have drawn State attention
as well. As I speak, the Massachusetts legislature is holding a
hearing discussing the licensing of mortgage loan originators and
the extension of the Massachusetts State Community Investment
Act law to non-bank mortgage lenders. We recognize that there are
regulatory weaknesses in our current system of both State and
Federal supervision. It is important that we debate and discuss
these weaknesses. However, we need to move towards finding common solutions. Ultimately, successful regulation of the mortgage industry requires enhanced coordination among the States and both
State and Federal regulators. Improved coordination and communication will increase accountability among mortgage brokers and
lenders and provide consistency across the industry to the benefit
of the borrower. For example, CSBS would like to work with our
Federal counterparts to encourage our supervised entities to reach
out to those consumers whose adjustable rate mortgages are scheduled to reset this year.
Thank you again for your invitation to testify today and for the
subcommittee’s interest in improving our mortgage market system.
I look forward to your questions.
[The prepared statement of Mr. Antonakes can be found on page
244 of the appendix.]
Chairwoman MALONEY. Okay, without objection, the written
statements of all of the witnesses will be made part of the record,
and I thank all of you for your testimony and insights.
Chairman Bernanke and Roger Cull have agreed that the Federal Reserve has broad powers under HOEPA to regulate unfair
and deceptive practices for all lenders. I would like to ask all of the
panelists, should the Fed use those rulemaking powers to extend
this guidance to the entire market? I know that Chairwoman Bair
testified in support of such of an action, but I would like to hear
from each of you for your particular view on this question. Would
you like to start, Chairman Bair?
Ms. BAIR. Yes, we would defer to the Fed and the decision they
make, and I understand they have it under review, but we would
strongly support them if they did decide to use those authorities.
Chairwoman MALONEY. Okay. Director Reich?
Mr. REICH. I, too, would be supportive of the Fed taking a look
at HOEPA to determine if it can be expanded in a way that would
not result in a credit crunch to worthy borrowers.
Chairwoman MALONEY. Chairwoman Johnson?
Ms. JOHNSON. Uniformities would certainly have its advantages
and so it would certainly be something we would support. It is not

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really my area; we regulate in the credit union area, but seemingly
the uniformity would be beneficial.
Chairwoman MALONEY. Mr. Rushton?
Mr. RUSHTON. The OCC would certainly support and contribute
to the effort by the Fed if they choose to go in that direction. I
think, as with the guidance that we have issued in this area, the
tricky part is the writing of rules that weed out the predatory and
abusive loans without restricting legitimate credit to creditworthy
borrowers. But we would support their efforts.
Chairwoman MALONEY. Okay, Ms. Braunstein?
Ms. BRAUNSTEIN. Yes, as I said in my testimony, we do plan to
look at our authority under that statute and to look for opportunities to utilize that authority which would cover all lenders. However, as some of the other panelists have alluded to, there are some
issues, and it is not an easy process. We need to make sure that
whatever rules are written are well-calibrated and are very
thoughtful and are done in such a way to, as Mr. Rushton just said,
to take care of the bad acts but not overly constrict the markets
because we do not want to end up with a situation where people
cannot get responsible loans.
There are some dangers under HOEPA, and we are going to look
at that. I am not saying they would stop us, but there are some
things to keep in mind. One is that HOEPA does carry with it the
way for people to file private lawsuits so that dictates even more
that we have to be careful about what we write because it is not
a matter of the banks being sued that concerns us as much as if
there is a threat of lawsuits taking place. And HOEPA also carries
with it assignee liability, which means anybody who touches a loan
could potentially be sued, that could end up cutting off constraining
credit because what you may find if there is not a clear, bright line
drawn in any rule that is written, the lenders may get nervous and
decide it is not worth doing that kind of credit at all and that
would be true of secondary market participants, securities, all
along the line because of the assignee liability.
So we are going to be looking, as I say, at this authority. We
think that it is definitely worth looking at, and we will try to figure
out a way to deal with this but it is not an easy undertaking.
Chairwoman MALONEY. But don’t you think the guidance strikes
the right balance now?
Ms. BRAUNSTEIN. I think for guidance, the benefits of doing guidance is that it is not enforceable, people cannot sue on the basis
of guidance, and guidance is a tool that can be done very flexibly.
And the guidance we try to write is principles based so that it
would apply to more—because the other problem is the industry is
very innovative and creative, as we have seen over the years, and
they are constantly coming up with new and evolving products. If
we craft things that are too narrow in scope and apply only to specific products, then the industry comes up with something else, so
it is a matter of trying to craft something that is broad enough to
take care of the bad actions but not overly constrict credit. We will
certainly be looking at what is in the guidance to see if some of
that can be moved into rules, but I think that is going to take some
analysis and study on our part and a lot of conversations with industry and the consumer side and the other regulators.

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Chairwoman MALONEY. But don’t you think that loans barred by
the guidance should not be made, simply put it merely says people
who cannot afford the loan should not take out the loan, don’t you
think that those—
Ms. BRAUNSTEIN. Well, I think a basic tenet of lending is that
borrowers should have the capacity to repay. The problem with
crafting that into rule, that could end up banning all asset-based
lending. There are some cases where asset-based lending may not
be a bad thing for certain income levels.
Chairwoman MALONEY. But then the guidance takes in mitigating factors.
Ms. BRAUNSTEIN. Yes, that is true and these are the kinds of
things we will be looking at.
Chairwoman MALONEY. When do you expect to come forward
with your decision? What is the timetable?
Ms. BRAUNSTEIN. We have started our review of Truth in Lending. We have held hearings; this summer we held hearings all
around the country to gather information on this. We are going
through that information. We are doing a number of other things.
I do not have an exact timetable to give you. We are proceeding
and we are being thoughtful about it, and I cannot give you an
exact end time.
Chairwoman MALONEY. And the guidance requires ability to
repay at the fully indexed rate, is that not a good principle for the
entire market?
Ms. BRAUNSTEIN. Basically, I think that is true, but again we are
going to have to look at and study these underwriting practices to
make sure that—if we codify that in a regulation, it is different
than putting in guidance, we just want to make sure that we do
not end up constraining responsible credit.
Chairwoman MALONEY. Commissioner Antonakes, and then my
time is up.
Mr. ANTONAKES. Certainly, I would personally welcome such an
approach, and we would hope that we could work closely with the
Fed to best coordinate supervisory as well as enforcement efforts.
Chairwoman MALONEY. Thank you, and I now recognize the
ranking member, Mr. Gillmor from Ohio.
Mr. GILLMOR. Thank you, Madam Chairwoman. You have all
been in the industry for a long time, and you have seen the up’s
and down’s in the economy. Right now we have, by every objective
standard, a very good economy. We have had continual expansion,
and unemployment is low, but these are good times. I want you to
give me a little projection of what you think will happen if we do
not have good times? For example, leading indicators declined in
March, that is the third consecutive month leading indicators have
gone down, and that is the first time that has happened since the
recession of 2001. And you also have a lot of adjustable rate mortgages that are going to be resetting later this year, or resetting
next year, so my question is, considering the great increase in foreclosures and delinquencies we already have, what is your assessment of what happens if we do go into a recession? If I could just
get a quick response from each of you. Chairman Bair?
Ms. BAIR. Well, our economists have done a lot, there is a strong
correlation between delinquencies and defaults in these subprime

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hybrid ARMs and what is going on with home price appreciation
or depreciation, as the case may be. Certainly you have seen some
problems in Ohio, so they are definitely connected. At this point,
we think the problems in subprime are contained to subprime. We
do not see a lot of spillover, unless something unexpected happens.
Obviously, we are monitoring it closely, but we do not see any
broader implications at this point.
Mr. REICH. I am going to agree with Chairman Bair. I think that
so far the problems have been limited to the subprime market. I
was looking at statistics on past dues on various types, the prime
past dues continue to be very, very low but not in the subprime
market and the big question is, will there be a contagion or spillover effect if the economic situation in general deteriorates, if there
are losses of jobs throughout the economy? But at the moment, we
are not expecting a contagion effect to spill over into other areas
of the economy.
Mr. GILLMOR. Chairman Johnson?
Ms. JOHNSON. We believe that our proactive examination process
and our guidance that was issued early has helped prevent a large
number of these types of loans in the first place. Our delinquency
rate is very, very low and our foreclosure rate currently is less than
one-tenth of a percent so that could be a slight increase potentially,
but we think it is very, very small.
Mr. RUSHTON. The OCC agrees entirely with our colleagues.
Mr. GILLMOR. So we are okay, all right.
Ms. BRAUNSTEIN. Yes, Congressman, I could attempt to answer
that question, but I am not an economist, and there are a couple
of hundred economists back at my organization who would probably take my head off if I attempted to answer that, so I think I
will pass on that. I do know that we are closely monitoring the situation and that there is still some uncertainty about the wider effects of this, but I am not the person to address that.
Mr. GILLMOR. Ms. Braunstein, let me remind you what Harry
Truman said. Maybe you will give more direct answers to me than
the economists. He said that he always wanted to have a onearmed economist because they all said, ‘‘On the other hand.’’
[Laughter]
Mr. ANTONAKES. Congressman, I would only add that our concerns have focused on the fact that I believe what you alluded to,
that the recent foreclosures have not been tied as closely to the traditional reasons for foreclosure, job loss, death, or illness of a
spouse. And certainly it appears to be more driven from the current
rate market as well as a decline in housing values. And if you had
additional factors challenging homeowners, then I think the situation within the subprime market could get worse. So I think that
speaks of our need to be aggressively addressing these issues now.
Mr. GILLMOR. Thank you very much, Madam Chairman. My time
has expired. I thank the panel.
Chairwoman MALONEY. The Chair yields 1 minute to Mr.
Hinojosa for a unanimous consent request.
Mr. HINOJOSA. Thank you, Chairwoman Maloney. I ask unanimous consent that a predatory lending financial literacy brochure
produced by the Center for Responsible Lending and the National
Association of Realtors, which I hold in my hands, be entered into

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today’s hearing record as well as a statement by the National Association of Realtors on the same subject, which would be very helpful to our hearing today.
Chairwoman MALONEY. I thank the gentleman, and I now yield
to Mr. Mel Watt from North Carolina, who has been a leader on
this issue.
Mr. WATT. Thank you, Madam Chairwoman, and I thank the
Chair for convening this hearing, which I think is probably the first
step toward—this term of Congress—toward the possibility of a
predatory lending bill and it is that interplay that I want to explore
a little bit because you have issued some guidance. I assume that
guidance applies to—who does the guidance apply to? Does it apply
to everybody? Does it apply to just the people under the jurisdiction
of—
Ms. BRAUNSTEIN. It applies to the depository institutions that we
all supervise plus their subsidiaries and that includes the subsidiaries of bank holding companies.
Mr. WATT. All right, how do we get it applied to State regulated
institutions?
Mr. ANTONAKES. At this point, Congressman, 29 States and the
District of Columbia have also adopted the guidance as well. My
office, we actually adopted it as regulation.
Mr. WATT. If you have adopted—so this guidance now applies to
everybody, traditional lenders and subprime lenders, right?
Mr. ANTONAKES. We have other States that—
Mr. WATT. Either it does or it does not.
Mr. ANTONAKES. In my State, in Massachusetts, it applies to
every type of lender. We are working with other States to ensure
that they adopt the guidance, as well. And we expect that in the
short term all 50 States will adopt the guidance so it does apply
to everyone.
Mr. WATT. Okay, and from this step, the guidance, you are moving, Ms. Braunstein, towards some regulations, is that where you
are headed or what are these hearings and things that you are—
what is it that you are contemplating doing in the future?
Ms. BRAUNSTEIN. Yes, it is not really related to the guidance per
se, but we were undergoing—before the guidance issue came up, we
were looking at our rules under the Truth in Lending Act.
Mr. WATT. And where is that headed?
Ms. BRAUNSTEIN. We are revising that.
Mr. WATT. That is what I am trying to find out.
Ms. BRAUNSTEIN. It is heading for a major revision of those rules
in regards to closed-end credit, which would include mortgages.
That includes looking at mortgage disclosures and making sure
that consumers have the information they need for transactions as
well as, as I mentioned today, we will be looking at our authority
under the HOEPA portion of Truth in Lending and whether or not
there are practices that are unfair and deceptive that we can write
rules on.
Mr. WATT. Okay, and those rules would be beyond this guidance
that you are talking about or would it be guidance—would it be
regulations or guidance?
Ms. BRAUNSTEIN. No, those would be regulations.
Mr. WATT. Okay.

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Ms. BRAUNSTEIN. And HOEPA and the Truth in Lending Act
apply to all lenders regardless of whether they are depository institutions or not.
Mr. WATT. The question I am trying to get to is, is any of this
going to alleviate the necessity of a Federal predatory lending law?
Ms. BRAUNSTEIN. I think that is a decision that the Congress will
have to make.
Mr. WATT. Okay. And one of the impediments to passage of any
kind of predatory lending legislation last year was the debate about
whether it ought to be a Federal preemptive standard or whether
it ought to be a floor, which would leave States to innovate and do
what they are doing already. I assume I know what the State position on that would be, or do I know what the State position would
be, either you support a Federal preemptive standard or you do
not?
Mr. ANTONAKES. Well, in the case of my State of Massachusetts—
Mr. WATT. I cannot get a yes or no answer out of you all, can
I? We have 5 minutes, I am trying to get to—either you support
a Federal preemptive standard or you don’t.
Mr. ANTONAKES. I would support one as long as it did not water
down existing State rules and allow for State enforcement.
Mr. WATT. So you would just wipe out a Federal preemptive
standard even if it was lower than Massachusetts’ standard?
Mr. ANTONAKES. No, I would support a Federal law if standards
were set appropriately high.
Mr. WATT. What if it lowered California’s standard or North
Carolina’s standard but raised everybody else’s standard, would
you support it or not?
Mr. ANTONAKES. I am in a position where our standards in Massachusetts are fairly high so I would come at it from that perspective.
Mr. WATT. Are you here speaking on behalf of an organization?
Would your organization support a Federal preemptive standard
that lowered any State standard that is already in existence?
Mr. ANTONAKES. That is something we would have to discuss
within our organization.
Mr. WATT. So you do not have a position, that is what you are
saying?
Mr. ANTONAKES. I do not believe we have taken a formal position
on that issue.
Mr. WATT. All right, my time is up. You all have rope a doped
me for 5 minutes now and nobody has given me an answer to anything. I do not know why you all come over here to testify if you
will not take a position on anything. I yield back, Madam Chairwoman.
Chairwoman MALONEY. I thank the gentleman, and I yield 5
minutes to the full committee ranking member, Mr. Bachus from
Alabama.
Mr. BACHUS. Thank you. Actually, I thought that he did take a
position, but it may not have been the position that the member
liked. Let me follow up by saying that—
Mr. WATT. If you do not have a position, that is a position, I
guess.

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Mr. BACHUS. I hope that is not taking my time. Could my time
start again?
Mr. WATT. I ask unanimous consent to give the gentleman back
whatever time I took from him.
Mr. BACHUS. Thank you. I will say that the gentleman from
North Carolina and I did work well together last year trying to resolve our differences, but the legislation I offered last year was the
North Carolina legislation, which is considered a very strong standard. It also gave the attorneys general of the States the right to
enforce, which you said was important to the State of Massachusetts. It also gave an individual right of action. Let me ask this,
we have now Federal guidance in place and are moving towards
regulation. We have 29 States that have adopted the Federal guidance. We obviously have 21 States that have not—I do not know
how many of those States have a tough State standard, but I would
ask the committee, what are some of the gaps in regulation as they
exist today? And let me propose one of them and maybe just ask
you about this one, most mortgage brokers are honest people, and
I think they do a very good job for their clients but we have bad
actors and we have all heard of cases of one broker who made $2to $300 bad loans, loans that should not have been made, sometimes defrauded the institutions, what do you think about national
licensing and registration? I will just start with Ms. Bair.
Ms. BAIR. Well, I think CSBS and the States are moving forward
with a State-based national licensing regime which would not require Federal intervention. I think a significant Federal role in regulating mortgage brokers—
Mr. BACHUS. Do what now?
Ms. BAIR. I think a significant Federal role in supervising mortgage brokers, if that is what you are suggesting—
Mr. BACHUS. Yes.
Ms. BAIR.I think that would be difficult and challenging. There
are State apparatuses in place for regulating the loan originators
as well as banks whom we all regulate.
Mr. BACHUS. You have the mortgage brokers and then you have
the loan originators who work for the national institutions.
Ms. BAIR. Right, right.
Mr. BACHUS. And they are regulated.
Ms. BAIR. But you can manage—you can regulate third party relationships. For instance, the banks that we regulate, we regulate
the third party relationships—
Mr. BACHUS. What about a national registration or national licensing?
Ms. BAIR. I would defer to Steve. I think that the States are already putting together a national registry and that they may be on
that track at a State-based level.
Mr. BACHUS. Okay.
Mr. ANTONAKES. Yes, we have worked for 3 years on creating a
national database, ensuring that all entities licensed by the States
are entered into this database and we have common sharing of information. We believe it will significantly improve supervision over
mortgage brokers. I would also add that just as the States have a
duty to supervise the conduct of the mortgage brokers, the entities
doing business, including banks that have outsourced their

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subprime lending to brokers, have a duty also to supervise that relationship between the banks and the mortgage brokers as well. It
seems to me that a far better method of coordinated examination
would include a national bank being supervised by their national
bank regulator, and also looking at the broker network in tandem
with States doing simultaneous examinations of those brokers, so
we could determine from the bank regulator’s perspective whether
the controls are in place and from the State perspective, ensuring
that appropriate business practices by the brokers are being adhered to. I think marshaling our resources and working together
would provide a far better system of supervision.
Mr. BACHUS. My thought is that we do need a national licensing
or registration of brokers. As to how it is enforced, I am not sure.
But I would like any proposals that you all have because I think
that is a gap in the present system because, as you said, you have
national institutions that are now farming out their work to people
outside the bank.
Mr. ANTONAKES. But, again, we believe our system will capture
that information and will result in a far better supervisory process
for the brokers as well as the lenders that are supervised—
Mr. BACHUS. Well, it will on institutions but how about those
States which—now, do you require licensing or registration of all
brokers?
Mr. ANTONAKES. We require licensing of all non-bank mortgage
lenders and mortgage brokers and the majority of States require
similar standards and the system we believe will substantially improve coordination among the States and information sharing for
the States, the vast majority of States that license lenders and brokers as well.
Mr. BACHUS. How are these brokers getting away with moving
from State to State and continuing to make—there has been some
documentation on some of them making as many as a thousand
fraudulent loans in three or four States?
Mr. ANTONAKES. I think the database will resolve that issue because of common information sharing, access to Federal criminal
databases, the form shopping which exists and which a company
gets into trouble in one jurisdiction, changes the name, creates a
straw, that type of opportunity is going to be gone once the database is up and running in less than 9 months.
Mr. BACHUS. Let me ask one follow-up question.
Chairwoman MALONEY. You have 30 additional seconds.
Mr. BACHUS. We talked about loans and defaulting loans, what
about lending to homebuilders, is that jeopardized? It is a very important industry and obviously as homebuilders experience problem—have you seen a pull back in the amounts of loans to homebuilders?
Mr. REICH. I think homebuilders who have built speculative
homes have certainly curtailed their activities and our re-trenching
in certain parts of the country where supplies of homes have built
up, so I am aware of and have heard in a number of parts of the
country that homebuilders are indeed re-trenching.
Mr. BACHUS. Are there defaulting loans from the banks, institutions—having delinquencies in loans to homebuilders?

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Mr. REICH. With one exception, in the State of Florida there was
an institution that likely will result in some losses to that institution because of an over-build situation and some irregularities,
which also took place. But on a broader basis, I am not aware of
losses occurring in institutions because of re-trenching among
homebuilders.
Chairwoman MALONEY. The gentleman’s time has expired. Mr.
Gutierrez of Illinois.
Mr. GUTIERREZ. Thank you so much. I would like to first just
talk a moment about the overall banking industry and financial
services industry because it seems to me that a lot of this is about
credit and who gets credit in the United States of America. I am
lucky to be 53 years old, so I remember when getting a Montgomery Ward’s card at 18 percent was hard to get, and then getting a J.C. Penney card. When I got my first MasterCard, it was
like 150 bucks and they really checked to make sure. Now my college daughter gets invitations every week to get credit.
So having a conversation about what is happening in the
subprime without having a conversation about what is happening
overall in the United States as it refers to how we get credit in this
country is really doing a disservice to the whole issue. And I would
like to say that, Madam Chairwoman, I am so happy you called
this hearing because we have the Comptroller of the Currency who
does not think that the gentleman from Massachusetts should be
able to regulate if he makes a decision and he makes a ruling at
the OCC, he thinks he should preempt him. So it is very interesting to watch both of them sit at the same table as though they
are both friends and allies of the same people but I do not believe
they are allies and friends of the same people.
I think you should be working together not at cross battle from
one another. And I think that that is a serious job and so as we
look at this issue, we should see what the OCC is doing in terms
of trying to preempt because I believe, as many of my colleagues
on the other side of the aisle, that many of the best things that
happen in government happen at the local level. But if our State
attorneys general cannot take actions, and I have spoken to my attorney general, they cannot lock anybody up for doing things that
are just as fraudulent as the guys at Tyco and Enron have done
in the subprime industry and in the mortgage industry. I have seen
examples of it.
You all in that panel, if you have not seen examples of things
people should have gone to jail for, then I do not know what you
have been doing so I am going to assume that you know much
more than I do and have seen the situations much more than I do.
So I would just like to say that CitiBank went to CitiGroup and
CitiFinancial, they are in the subprime industry, so as all levels of
regulation, you should look at what it is they are doing and how
it is that they are doing this because they are part of the problem.
I heard some people say we do not want to constrain credit, well,
if we do not constrain credit to those who are either not worthy of
the credit because they do not have the ability to pay and they
know they do not have the ability to pay going in, that is why in
great measure we have a subprime industry. There should be considerations. That is why my earlier statement, when I got my first

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mortgage back in 1981, I remember bringing all the documentation
to the banker. I knew that banker. He knew who I was. He checked
me out.
Now we are issuing loans, I buy a piece of land and I build a
house, and we speculate on what it is going to be worth later on.
Somebody is going to pay the consequences of this subprime industry, 20 percent of the loans. So I want to thank the gentleman, Mr.
Watt, for bringing things up.
I want to read something that was put into the record but I want
to read it again from the Honorable Sheila Bair. It says, ‘‘We understand FRB is in the midst of reviewing the regulations that implement HOEPA. The FDIC would strongly support the FRB
should it decide to make greater use of its authorities provided by
HOEPA to address predatory practices. Many abuses might be
more effectively addressed by regulation rather than statute, especially in the areas as misleading marketing in which the manner
and types of abuse change.’’ I suggest you do it and that you work
together and that that is what you are, you are all in public service
as we are and that we not have to have a hearing so that you can
communicate with one another about these issues.
I would like to ask one question of Ms. Bair following up on Mr.
Watt. In your testimony, you suggest one option for Congress is to
articulate a set of anti-predatory lending standards through legislation. One of the issues we wrestle with up here is preempting the
States because, as you acknowledge in your testimony, the States
have proven to be innovators when it comes to consumer protection
issues regarding Federal legislation. Do you think Congress should
establish a floor for protections by establishing a set of minimum
standards or should we just preempt the States and implement a
national standard?
Ms. BAIR. If you are simply establishing a floor, I do not think
that you want to preempt additional State protections above that,
no, I do not think you should do that. There could be another approach, you could try a more prescriptive, very strong standard and
there might be justification for preemption if you were sure that
you were raising the bar, not lowering it. But I think the whole
point of this is to increase broad protections, not decrease them, so
unless you were confident you were doing that, I would recommend
against preempting.
Mr. GUTIERREZ. Thank you.
Mr. WATT. Madam Chairwoman, could I ask unanimous consent
to get a response to that question from the other panelists?
Chairwoman MALONEY. So granted.
Mr. REICH. I would agree with Chairman Bair; I think enacting
a standard with a low bar would not be a productive act for Congress to undertake.
Ms. JOHNSON. I would agree that in that setting a low bar would
be an exercise in futility. It is not going to get to the heart of the
problem in protecting the consumer.
Mr. GUTIERREZ. Madam Chairwoman? Should we set standards?
Chairwoman MALONEY. Let the other witnesses respond. Mr.
Rushton?
Mr. RUSHTON. We would argue against a low bar, as well.

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Mr. WATT. Madam Chairwoman, I hate to interrupt him but they
are not answering the question that has been asked. The question
is, should there be a Federal preemptive standard, whether it is a
low bar or a high bar, should there be a Federal preemptive standard? That is the question.
Chairwoman MALONEY. Okay, then let’s go back to Ms. Johnson,
do you think there should be a Federal preemptive standard?
Ms. JOHNSON. I have to be honest with you, it is not an issue
that we have had a hearty discussion about at the agency. We do
not have broad preemptive—we do not do a broad preemptive
power right now and so I would really have to study it before giving an answer.
Chairwoman MALONEY. Okay, Mr. Rushton?
Mr. RUSHTON. The OCC has a fairly robust anti-predatory lending standard now. We would certainly support a Federal standard
so long as it did not dilute ours. We are hopeful that this guidance
that we have proposed, along with the natural correction that is occurring in the market today, would serve the purpose of stemming
these abuses. But if it does not, then we would certainly support
the Congress if it decided to set a national standard.
Chairwoman MALONEY. Ms. Braunstein?
Ms. BRAUNSTEIN. The Board has not taken a position on a Federal preemptive standard at this time.
Mr. ANTONAKES. We could support a Federal preemption standard again as long as the standard was set high enough and allowed
for State enforcement.
Chairwoman MALONEY. The Chair recognizes Judy Biggert of Illinois for 5 minutes.
Mrs. BIGGERT. Thank you, Madam Chairwoman. We are having
a lot of discussion in Illinois, particularly in the Chicago area,
about this issue. I think the papers describe one woman who received a mortgage for $3,800 a month while she only brought in
$2,600 a month. So obviously before the mortgage was even consummated, she was behind in the payments, on the promise by the
broker that the payments would be lowered as she went along. Obviously, there was a foreclosure.
One recent law in Illinois was put in that said that in certain zip
codes in Cook County, there would be mandatory counseling on
mortgages if your credit score was below a certain level. And everything, I think, has unintended consequences. What happened there
was that in the area they were worried about racism, that was
something brought up. And they were also worried that lenders
were leaving those zip codes and going other places. So the law is
now out for public comment in all of Cook County, which surrounds
Chicago, there would be mandatory counseling for everyone wanted
a non-traditional mortgage, regardless of their credit score, that
they would have to go to mandatory counseling.
Now, I believe in financial literacy, but I think that this is carrying things to an extreme, for anyone who ever wants a non-traditional mortgage. And in the zip codes there had been a high percentage of foreclosures and a large percentage of high-risk mortgages that were applied for. So I would just like to ask two questions. One, what would you think of such an idea? And, two, what
should a lender do when there, when they know that there is going

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to be a foreclosure and somebody is in trouble and a lot of these
will not refinance? Let’s start with you, Chairman Bair.
Ms. BAIR. Well, I am not sure, you mean my view on the idea
regarding counseling for non-traditional mortgages?
Mrs. BIGGERT. Yes.
Ms. BAIR. I think that the lender needs to have the obligation to
make a determination that the borrower has the capacity to repay,
and I think if you have that kind of good underwriting, a lot of
these other problems go away and it does not sound like that was
done in the case of your constituent. I think we need to be very
careful when we start saying that subprime loans will have certain
requirements and not prime loans because I think you do have a
potentially discriminatory impact, and I think that is to be avoided.
A lot of these products are very complex, no matter how much financial education, and a lot of typical homeowners are not going
to understand them. That is why I think the lenders who are offering these products need to have the onus on them to qualify the
buyer so that they have a product that they can afford.
Mrs. BIGGERT. Would anybody else like to address that issue?
Mr. REICH. Well, I would certainly say that I think the notion of
having counseling available is excellent but mandating it would be
something that I would be uncomfortable with. With regard to foreclosures, as you mentioned near the end of your remarks, that the
impact of foreclosures and what can financial institutions do, we
have been encouraging our institutions, and I think to some extent
perhaps all of us at the table have been encouraging our institutions to work with borrowers to try to prevent the foreclosure process through extending payments, re-writing the obligations in a
satisfactory underwritten matter, similar to as we did following
Katrina with our institutions in Louisiana and Mississippi, we encouraged their institutions to be understanding and proactive in
trying to help people resolve their problems and that is what we
are trying to do today.
Mrs. BIGGERT. Thank you.
Ms. JOHNSON. I would like to add that the counseling is a big
part of the educational process for many of the credit unions. They
are working with NeighborWorks America and with other organizations and groups out there where counseling actually is a part of
the process. Understanding that stack of paperwork before signing
on the dotted line is important and if the consumer is educated on
the front-end, exactly knowing how those payments may have an
opportunity should the interest rates rise, etc., will make a better
consumer and it is good for the institution as well. So I do not
know as far as mandating it, but I would certainly heavily encourage it.
Mrs. BIGGERT. Thank you.
Chairwoman MALONEY. Carolyn McCarthy of New York?
Mrs. MCCARTHY. I thank you. One of the things that I am curious about, I did not hear it in any of the statements, what is in
place to penalize those who abuse the system and basically make
these loans to people that they cannot repay? Is there anything in
place, are they fined? Some of them are not licensed so they cannot
lose their license. It goes back to the other question that one of my

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colleagues mentioned, that he just goes to another State. So I am
just curious, what is the penalty for making these kind of loans?
Mr. ANTONAKES. In the Commonwealth of Massachusetts over
the summer, we did a sting of approximately 100 mortgage brokers
that were primarily servicing low- and moderate-income areas, and
we focused primarily on the issue of stated income loans and to the
extent that we could document evidence that income stated on
these loans had been, in fact, inflated. The net result of our examinations where we issued cease and desist orders, essentially shuttering, I believe, nine brokers, putting them out of business, fines
were involved, and we have made referrals for appropriate criminal
action to our State attorney general who will be looking to follow
up.
Mrs. MCCARTHY. What kind of fines?
Mr. ANTONAKES. The fines were in the hundreds of thousands of
dollars. The primary issue for us was—
Mrs. MCCARTHY. Did they pay the fines?
Mr. ANTONAKES. We have had some pay the fines and others—
Mrs. MCCARTHY. Some paid?
Mr. ANTONAKES. The ones that we allowed to continue in business under very different structures paid the fines, others were—
and those cases involved only a very individual rogue employee
versus a systemic issue. The ones with systemic issues are concerned with shutting those companies down and not allowing them
to do business any further in the commonwealth and where appropriate we believe we have made referrals to again our State attorney general, who we will hope will prosecute in what we would believe would be a firmer resolution at the end of the day.
Mrs. MCCARTHY. So with Massachusetts particularly, there is absolutely no reason for these brokers who are out there to actually
stop, is there? No answers?
Ms. BAIR. We regulate banks but we do have regulations and supervisory guidelines pertaining to the relationship of the bank to
the mortgage broker.
Mrs. MCCARTHY. What happens to the big guys?
Ms. BAIR. We bring enforcement actions, we issue cease and desist orders. There can be significant financial penalties as part of
our regulatory authorities but we can only indirectly impact mortgage broker activity through the relationship with the bank.
Mrs. MCCARTHY. Over the last 6 years that we have been talking
about this issue, would you say that a lot of them have been prosecuted or fined? I know I am still seeing it in my district. I have
a very large minority district. I certainly have brought in a lot of
the financial institutions to educate my constituents and consumers and that is great. A lot of them, unfortunately, do not come
to the meetings to learn about it and to hear about it. I have a
group that I work with, the Community Development Institute of
Long Island, and basically they look for people who want to buy a
home. Certainly they would be those who are not qualified to buy
a home but they have to go to school. And my colleague, Ms.
Biggert, was talking about it where it is mandatory; this is not
mandatory. Well, for them it is mandatory because if you want the
loan, you have to go through schooling because one of the things
no one ever talks about, some banks do, a lot of them do not, what

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are the taxes going to be, what are your utilities going to be? It
is one thing to say you have a mortgage there, what is your insurance going to be? You hold those things up and most people, a lot
of people would not be able to afford that. Should that not be into
the education of the consumer when they are trying to take out a
loan?
Ms. BAIR. Well, our guidance specifically requires lenders, when
they underwrite the loan, to take into account taxes and insurance
as part of the underwriting process. It is not just the principal and
interest, it is the taxes and insurance as well. And, yes, I have
heard anecdotal reports of situations where that underwriting does
not reflect taxes and insurance and you end up with these kind of
serial refinancing situations where every time the tax and insurance comes due, you have a situation where the borrower has to
refinance.
Just getting back to your original question as well, I would point
out that under Unfair and Deceptive Acts and Practices authority
under the FTC Act, the FTC can bring actions though they obviously have limited resources. State AGs as well, under State laws
prohibiting unfair or deceptive acts or practices, can bring actions
addressing the type of conduct that you mentioned.
Mrs. MCCARTHY. I guess what boggles my mind is that, and
probably because we sit on this committee, when you look at—on
TV, they advertise constantly you can refinance your mortgage for
4.2 percent. I yield back my time.
Chairwoman MALONEY. Patrick McHenry of North Carolina?
Mr. MCHENRY. I thank the chairwoman. I want to thank the
panel for being here, as well. Ms. Johnson, at NCUA, in your testimony you said that—you cited some stats on fixed rate and adjustable rate mortgages for credit unions and you said 68 percent of
credit unions are for mortgages of some size or some scope. To
what extent do credit unions make subprime or non-prime loans?
Ms. JOHNSON. Congressman, thank you, that is a good question.
Sixty-one percent of the loans are fixed, that leaves 39 percent adjustable. In our current 5300 Report, we have not been separating
out the exotics in the subprime. We have changed that reporting
method and starting with this quarterly report, we will now be able
to measure that directly.
Mr. MCHENRY. So you do not know?
Ms. JOHNSON. Our educated guess is that it is less than 1 percent. It is very low because the overall numbers for credit unions
are very low.
Mr. MCHENRY. But there is no way to know, you do not have any
data?
Ms. JOHNSON. We will shortly.
Mr. MCHENRY. But the answer is, no, we have no data. Okay,
thank you.
Ms. JOHNSON. But I think it is important—
Mr. MCHENRY. I would suggest to you that perhaps these nontraditional loans, non-prime loans may help serve your mission to
help the underserved. Further, Mr. Reich, with OTS, is it true that
many of the foreclosures and delinquencies we are seeing are a result of mortgage fraud?

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Mr. REICH. It is true that mortgage fraud has become a significant problem, yes.
Mr. MCHENRY. Do you have any statistics?
Mr. REICH. I do not have data, I will be glad to get back to you
in writing if we have data available.
Mr. MCHENRY. I would certainly appreciate that. That is what
I am trying to get at is what portion of foreclosures and delinquencies are due to actual fraud because that is certainly a problem in the marketplace. And rather than simply blaming the lender, let’s also look at the borrower, perhaps they have some burden
here as well.
Additionally, we talked about a number of things here today. The
OCC, Mr. Rushton, you testified that national banks are about 10
percent of the subprime market, is that correct?
Mr. RUSHTON. Yes, less than 10 percent of the new originations
last year came from national banks.
Mr. MCHENRY. Is that based on volume or dollar?
Mr. RUSHTON. Dollar amount.
Mr. MCHENRY. Dollar amount?
Mr. RUSHTON. Yes, sir.
Mr. MCHENRY. Okay, do you have any statistics on actual percentage of originations and numbers?
Mr. RUSHTON. The total dollar amount was about $60 billion in
subprime loans, a little bit less than that in Alt-A loans that are
below prime but not subprime. Combined, they come out to about
16 or 17 percent of all of the below-prime loans that were made in
the system last year.
Mr. MCHENRY. Certainly. Mr. Reich, you also testified that you
have seen this economic cycle 6 times, I think that is a fascinating
amount of experience you have. And you said 13 percent of the national mortgage debt is within subprime?
Mr. REICH. That is correct.
Mr. MCHENRY. Okay, so what I have been hearing today is dealing with 13 percent of the mortgage market. What I would ask the
whole panel, could you say yes or no, is the mortgage marketplace
working, meaning supply and demand, is that functionally in the
marketplace? What we have it seems now in the mortgage marketplace nationally with record homeownership is that there was a
large amount of credit that was available because people were willing to take higher risks with the possibility of return for that risk.
And then in reaction to that, with the changing economy, the actual mortgage market is constricting. So if we could just go quickly,
I do not have much time left, to simply say whether or not you
think it is actually functioning, the mortgage marketplace is actually functioning, just yes or no or perhaps—with my colleague from
North Carolina, I realize that many of you will say ‘‘maybe’’ or
something long-winded, if I could just get a ‘‘yes’’ or ‘‘no’’ out of you
or you could just simply say, ‘‘Pass.’’
Ms. BAIR. I would have to say on a macro-level, yes. But on a
micro-level for individual families, no, for a lot of them it has not
been working.
Mr. MCHENRY. Mel, I think you are right about the panel. Number two?

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Mr. REICH. I would say yes. If I had the opportunity to clarify
it, I would say that maybe for 15 percent of the market it is not
working as smoothly as it should be.
Ms. JOHNSON. I would say yes. In fact, we encourage credit
unions to try to assist their subprime borrowers and make a difference between subprime and predatory lending. A lot of subprime
borrowers out there need to be in a home as well and it can be
done with proper due diligence.
Mr. RUSHTON. We say yes, and we believe it will correct itself as
it has in prior cycles.
Ms. BRAUNSTEIN. I would say yes, but we do have concerns about
those areas where it is not working as well as it should be.
Mr. ANTONAKES. Yes, but it can be improved.
Chairwoman MALONEY. The gentleman’s time has expired. Mr.
Clay of Missouri?
Mr. CLAY. Thank you, Madam Chairwoman. Let me start with
Ms. Braunstein. In St. Louis, Missouri, it is predicted that almost
20 percent of all subprime loans will go into foreclosure. This problem that we have in the subprime mortgage industry is catastrophic. This did not happen overnight. The system has numerous
fail-safes to detect such happenings and why is it that the Federal
Reserve system did not see this coming? Why is it that our other
agencies that watch or control banking and commerce did not see
this coming? Was the problem one of not seeing a situation or in
just not reacting? What happened and who dropped the ball?
Ms. BRAUNSTEIN. Congressman, actually, we did see that there
were issues in these markets and we have been issuing guidance
on real estate and subprime as far back as the 1990’s to try to address the situations as we saw them. This recent phenomena that
we are seeing right now, actually the downturn did not come until
late 2006 so that is a fairly recent phenomena and as soon as we
saw it, we did issue the new proposed guidance for subprime mortgages. So we have been taking actions all along and we have done
a number of things with other guidance and regulations to try to
address the situation.
Mr. CLAY. Let me go to Mr. Rushton, the Comptroller of the Currency. Ohio, which had the highest foreclosure rate in the Nation
at the end of last year, plans to issue $100 million in taxable municipal bonds next month to help homeowners refinance mortgages.
Proceeds from the bond issued by the Ohio Housing Financing
Agency will finance 1,000 loans with a fixed rate of 6.75 percent.
The loans will be limited to homeowners with incomes up to 125
percent of the median income of their county and will take them
out of their adjustable rate mortgages, interest-only mortgages, and
avail them the opportunity to move into fixed rate mortgages. Is
this a solution that can be used on the Federal level? What are the
pros and cons of this solution on a nationwide basis? And can this
work as an assist with other programs and solutions to avert home
foreclosures?
Mr. RUSHTON. What you have described sounds like an excellent
solution in terms of a takeout program that will alleviate pressure
on the borrowers in trying to find financing that is going to be very
difficult for them to get. It is helpful in another very important way
in that it gets around all of the restrictions that may apply to some

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of these loans that are now in securitizations or subject to other
servicing agreements where the holders of the loans have not given
any flexibility to work with the borrowers to help them out. Your
program would get around that, and it sounds very good based on
the parameters you have outlined. In terms of a more omnibus application of it on a Federal level, we would be delighted to work
with the subcommittee in exploring that.
Mr. CLAY. Thank you for that response. Let me share with the
panel a recent publication from the Sunday St. Louis Post Dispatch
with the headline, ‘‘Minorities Beware: Home Loans Reflect Bias.’’
And this is a question for anybody who cares to take a stab at it
on the panel. A recent study by the Center for Responsible Lending
concluded that black borrowers are 3.2 times more likely to receive
a higher rate than white borrowers and the disparity decreases
when adjusted for differences in credit scores, income, and other
risk factors but significant differences remain. After adjusting for
such traits, blacks were still 1.6 times more likely to get higher
rate subprime loans than whites when purchasing a home and 1.3
times more likely in refinancing, Hispanics too. Tell me how do we
address that? What do we do? How do we take the race factor out
of home loans? And I am going to ask the next panel who comes
forward also, but how would you address the race factor?
Ms. BRAUNSTEIN. One of the things that we are doing, and I
think all the agencies do, is we conduct very robust examinations,
fair lending examinations, in our institutions. We look closely at
the data that comes out and when there are pricing disparities and
we use that as an initial screen to go in and gather more information and do very thorough analyses of what lenders are doing in
terms of pricing and who the loans are made to. If we find that
they are making pricing decisions based on race, we will refer them
to the Department of Justice and we have done so. And the problem sometimes is not all these loans—in the statistics you are reading, not all those loans are being made in the depository institutions that are being regulated and having robust fair lending examinations.
Chairwoman MALONEY. The gentleman’s time has expired. Mr.
Neugebauer of Texas?
Mr. NEUGEBAUER. Thank you, Madam Chairwoman. I kind of relate to what Mr. Reich said, I have been in the real estate business
through most of those cycles and have some scars to show from it.
One of the things I want to go back to is back in the 1970’s when
I was in the banking business and originating mortgages, we
used—kind of the guidelines were set by the marketplace and that
was Freddie Mac, Fannie Mae, FHA, and the PMI companies. In
other words, you used their underwriting guidelines and that pretty much set the standard for the markets. And if you made a loan
that was kind of outside those guidelines, and I was in the banking
business at that particular time, we just knew that we were going
to have to hold that loan in our portfolio. And so one of the questions that I have today is as we move down this road I think it is
important to make the distinction between subprime lending and
predatory lending, those are really two different issues, and we
need to be careful here that we are not trying to fix one with the
problems that exist in the other. But in your mind today with the

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sophistication of our financial markets, the fact that those four entities really do not control as much of the flow of the mortgage
lending activity today, do you still think within the marketplace
today there are enough market forces that we do not need to really
start down the road of mandating what the criteria for mortgages
are going to be? And I will start with you, Ms. Bair, and kind of
run across the table there.
Ms. BAIR. Well, I think it is a very perceptive question. In
securitization, most subprime mortgages are purchased by the socalled private label, the non-agency investors. There is a lot of liquidity these days and there has been an analysis suggesting that
has played a role in the depressing of lending standards. When you
were in the business, you held that loan in the books, you worried
about whether it was going to perform. Now all the stuff can be
sold off. We are having a securitization roundtable with OTS and
OCC and the FRB on April 16th, and one of the issues we are
going to look at is the impact of securitization on underwriting and
also going forward how to help people restructure loans so that
they can get into a product they can repay and how we work with
the investor community to accomplish that.
Mr. NEUGEBAUER. Mr. Reich?
Mr. REICH. I am a little reluctant to see Congress become so prescriptive as to proscribe underwriting standards for various types
of loans. I feel the same way frankly about regulatory agencies becoming overly prescriptive. That takes away the creativity for
bankers to do what they do best in devising solutions for particular
borrowers.
Mr. NEUGEBAUER. Thank you. Ms. Johnson?
Ms. JOHNSON. Credit unions do use the secondary market, however, many of them retain the servicing, etc. However, credit
unions are restricted in their investment opportunities and are restricted to highly rated securities so purchasing those is different
for credit unions.
Mr. NEUGEBAUER. Okay, Mr. Rushton?
Mr. RUSHTON. We would be a little wary about endorsing underwriting standards by the government, frankly, because it would be
difficult to apply to the entities that have become preeminent in recent years. The reason that the GSEs have declined in importance
is because the investment banks, including Wall Street firms, have
been able to do this business themselves, and they are selling to
investors who do not have the same interest at heart in terms of
consumer protection and other risk considerations as banks do. If
a standard could be written that could be applied to the Wall
Street firms and other players equally, then we would probably
support it, but we would be wary of doing that because you are essentially substituting Federal judgment for that of the willing borrower and lender and funder of the credit.
Mr. NEUGEBAUER. Ms. Braunstein?
Ms. BRAUNSTEIN. Yes, we would also be concerned about dictating underwriting standards. As I mentioned even in regards to
using our HOEPA authority, we want to be very careful that whatever is done is not an overreaction to a specific situation and that
it does not constrain responsible lending that is out there in the
market.

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Mr. NEUGEBAUER. Mr. Antonakes?
Mr. ANTONAKES. Well, the Wall Street firms and securitization
have resulted in a great deal of additional credit being made available but we cannot ignore the fact that they have also created the
desire for a very high-risk product and the market is adjusting, but
I would say a little too late and I do believe that the guidelines,
as issued by the Federal regulators and the States, are essential
in ensuring that tenets of sound underwriting are adhered to at all
times.
Mr. NEUGEBAUER. I want to go back to Ms. Bair just for a
quick—one of the things I was noticing that as this subprime thing
started kind of unraveling, a lot of the repurchase agreements
started being put back, and I guess from a regulatory standpoint,
have you all been kind of reviewing not only the ability of the repurchasing folks, when banks or financial institutions are holding
those for investment purposes?
Ms. BAIR. There have been a lot of put-backs, and I think that
is another area of concern. The representations and warranties
part of these securitization agreements can sometimes be quite
broad in enabling the securitization program to put the loans back
and that is obviously a problem for us because they have not held
capital. We have assumed those assets have gone. So, yes, it is another thing that we are looking at. We are concerned about it, we
are tracking it, but at this point, I do not think that it presents
a fundamental safety and soundness issue for insured institutions.
It is certainly something we are very aware of and scrutinizing.
Chairwoman MALONEY. The gentleman’s time has expired. Brad
Miller of North Carolina, also a leader on this issue.
Mr. MILLER OF NORTH CAROLINA. Thank you, Madam Chairwoman. Mr. Rushton, you testified that the subprime mortgage
lending market had made homeownership much more available,
that many people could get into a first home as a result of
subprime lending, which I do not doubt is correct, but the Mortgage
Banker’s Association’s estimate is at 55 percent of subprime loans
are refinances and only 45 percent are for the money to purchase
homes with, is that correct?
Mr. RUSHTON. I do not have any reason to disagree with the
MBA’s numbers on that.
Mr. MILLER OF NORTH CAROLINA. Okay, and their estimate is
about one quarter of subprime loans to purchase a home or for first
time purchases, does that sound correct?
Mr. RUSHTON. Yes, sir.
Mr. MILLER OF NORTH CAROLINA. So it is about 11 percent of
subprime mortgage loans are actually to purchase a first time—
Mr. RUSHTON. If that is what the math comes out to.
Mr. MILLER OF NORTH CAROLINA. Okay. Do we have any data on
the defaults and how much of the defaults are refinances, how
many that are mortgages to purchase a home with, and particularly a first time?
Mr. RUSHTON. That data may be available, sir, but I do not have
it with me today. We would be glad to try to supply that to you.
Mr. MILLER OF NORTH CAROLINA. Okay, where is it available?
Mr. RUSHTON. Back at our office.

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Mr. MILLER OF NORTH CAROLINA. Okay, I would be very interested in seeing that.
Mr. RUSHTON. Okay.
Mr. MILLER OF NORTH CAROLINA. And there has been a lot of assumption in the reporting on this question in the last couple of
months that the defaults were mainly folks who were just spendthrifts who were buying more house than they could afford and
could not pay their mortgages. Do you know if there was any information that shows that is in fact what is happening or people who
got in trouble, the usual kinds—death, divorce, job loss, necessary
home repairs?
Mr. RUSHTON. The precise reason that a borrower develops financial problems is not something that we track, but we can try to run
that down.
Mr. MILLER OF NORTH CAROLINA. Okay. Just to pick on somebody different, Ms. Bair, Mr. Clay asked about the OMDA data
which shows that about 17 percent of white families who are borrowing for mortgages, we are not talking about all borrowing, we
are talking about mortgage borrowing, which is something that is
usually more restricted to the middle class or in subprime loans
but almost half of Latinos and more than half of African American
families. The Center for Responsible Lending has analyzed that
further and found that every other objective criterion went into
value assets, income, credit history, everything else, even when
that is taken into account, there are still substantial disparities, is
that consistent with your own observation?
Ms. BAIR. Yes, we are very concerned about this and have addressed it in the draft subprime guidance that is out for comment
now. Some of the lending analyses we have been doing on subprime
mortgages that have been securitized, which is most of them, show
that there is a big percentage, I think 14 percent, where the FICO
score was actually over 700.
Mr. MILLER OF NORTH CAROLINA. Right.
Ms. BAIR. Which leads you to wonder, why is this person in a
subprime loan?
Mr. MILLER OF NORTH CAROLINA. But Freddie Mac, I think, estimated a couple of years ago that 25 percent of the subprime mortgages they purchased were from borrowers who qualified for the
bond market.
Ms. BAIR. There is a problem that borrowers are not referred up.
A lot of lenders just specialize in subprime so if they qualify a person, that is the product that they do instead of referring him to the
prime products.
Mr. MILLER OF NORTH CAROLINA. And that is, in fact, something
that Ms. Braunstein also raised, so perhaps both of you, one thing
that I have heard argued is that African Americans are simply
choosing different mortgage products, and I have some difficulty
imagining an African American homeowner walking into a financial institution, a lender of any kind, and saying, ‘‘Can I get a 2/
28 mortgage with a teaser rate that I can qualify for but an adjusted rate I cannot possibly pay and a 4 year prepayment penalty.’’ Do you really think that African Americans are consciously
choosing different mortgage products, either or both of you but you
can go first, okay?

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Ms. BRAUNSTEIN. I do not know that it is a conscious choice.
What we heard, in fact, in the hearings that we did over the summer anecdotally and what we have seen in conversations is that
there is an enormous amount of push marketing that goes on in
minority neighborhoods where the purveyors of these subprime
mortgages are very actively involved in marketing and that same
level of marketing does not go on by prime lenders.
Mr. MILLER OF NORTH CAROLINA. Ms. Bair?
Ms. BAIR. I was just going to say I think this is a broader problem—minorities more frequently having high-cost products. We
have created an Advisory Committee on Economic Inclusion and we
are trying to look at this broader issue. We want to understand
why banks are not in there more and to what extent we can get
mainstream prime bank lenders to do more aggressive marketing
and servicing in these communities. I think a lot of this is being
driven by the lender, not by the borrower, and we would like to see
if we can get banks reaching out more to these neighborhoods.
Chairwoman MALONEY. The gentleman’s time has expired. Mr.
Price of Georgia.
Mr. PRICE. Thank you, Madam Chairwoman, and I want to
thank you also for holding this hearing. It is an important area,
one that in my home State of Georgia we have dealt with for a
number of years, serving in the State legislature we had some interesting challenges a number of years back, as some of you may
recall. I have had some conflicting meetings this morning, and I
apologize. I want to thank each of you for coming and I have read
significant portions of your testimony, and I appreciate the perspectives that you bring to the table. I do not want to repeat specific
questions that were asked, and I am sure they have been and I will
review the record for that. But I would like us to step up kind of
to the 30,000 foot level, my understanding is that each of you have
stipulated here today that you believe that the mortgage banking
system is working in our Nation right now and obviously I guess
the correlate of that is it is accomplishing some good for the majority of folks who are accessing that system. I think the big question
is whether or not the Federal Government has a further role in defining what ought to occur or whether the guidelines in the regulatory apparatus that we have in place right now are capable of
correcting whatever ill view we, anybody believes is in place or has
occurred over the last couple of years. So my question, and coming
from a firm sense of belief that the Federal Government is relatively incapable of being flexible in promoting or providing guidelines for any industry, I would ask each of you just the general
question whether or not you believe that the current system we
have in place, the regulatory system we have in place, is capable
and will in fact correct the system or correct any ills that have
been alleged or whether you believe that further action by the Federal Government in this specific area is helpful for our overall system. And if we could start, Mr. Antonakes, at this end and kind
of head on down, I would appreciate it.
Mr. ANTONAKES. I do believe the constructure of regulation will
appropriately deal with these issues, and I do believe, that being
said, that within the States we can coordinate and do a better job,
and with the States and the Federal Government we can coordi-

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nate and do a better job. I think that will result in even more effective supervision of really every entity involved in the transaction,
including the broker, the lender, the funder, and then the
securitization process as well.
Ms. BRAUNSTEIN. At this time, we do not see a need to ask Congress for additional authority or additional legislation. We think
that what is there now is appropriate and can deal with the situation.
Mr. RUSHTON. We agree. We believe the non-traditional mortgage guidance the agencies issued in October, as well as the
subprime guidance that we now have out for comment, uniformly
implemented by all regulators, along with the natural operation of
the market, is all we need right now. We do not think we need anything else.
Ms. JOHNSON. If you believe that consumers are better off with
traditional mortgage products and traditional type loans, there is
one area where Congress could facilitate with the credit unions
when we are talking about the underserved areas and the minority
population in particular. All credit unions are not able to adopt underserved areas, and I think credit unions are a traditional federally-regulated institution that could reach out to this population in
particular and help in the subprime are. We encourage with due
diligence credit unions to make these types of loans to help people
get into homeownership so that is one thing that needs to be or
could be changed with the statute.
Mr. REICH. The market is in the process of correcting itself. We
have issued guidance for comment, expiring May 7th. Many
subprime lenders have exited the business. The liquidity for
subprime lending has essentially dried up and so I think largely
the market is in the process of correcting itself. Having said that,
there are a number—there are probably a number of borrowers
who are going through foreclosure who are not going to benefit
from the guidance that is proposed.
Mr. PRICE. If I may, that skirts the question a little bit in that
the market is correcting itself, but do you—and I do not want to
minimize the number of foreclosures out there because for each of
those families obviously it is a significant trial. Do you believe that
any changes should be put in place to prevent the next cycle that
might result?
Mr. REICH. Well, I have expressed some support for Congress to
take our guidance on subprime lending and make it a standard
that would apply to all lenders beyond insured institutions.
Mr. PRICE. I appreciate that. Madam Chairwoman, may I get one
brief comment from Ms. Bair?
Chairwoman MALONEY. The gentleman’s time has expired and
she has spoken on this already several times.
Mr. PRICE. Thank you.
Chairwoman MALONEY. David Scott of Georgia?
Mr. SCOTT. Thank you very much, Madam Chairwoman. If we
look at the situation as we have it now and with a lot of the testimony that is going forward, with the surveys that have come out
by Bankrate.com on Monday, and with the fact that I represent the
State of Georgia, which has the third highest foreclosure rate, with
the fact that within the next 24 months, 2.2 million homeowners

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will go into foreclosure and the fact that in addition to that, Mr.
Greg McBride, who is the senior financial analyst of Bankrate.com
in the survey points up this salient fact, that the greatest concern
that we, and I say ‘‘we’’ in the financial service industry have, of
which we in the financial service industry are victims of is the complexity, the confusion, the culture, and the language of the financial services area is so confusing that as Bankrate says 40 percent
of all the homeowners in America, prime and subprime, do not
even know what they have signed. So it says to me with this information that as we move forward on this issue, one of the most important parts of our legislation should be and must be a major offensive on financial literacy and financial education, which to me
is the greatest way in which to solve this problem because the
major concern is how do we come up with that delicate balance
with which we would be able to put forward legislation that is not
so overreaching that it will dry up the credit for an underserved
population which basically has been aptly described, African Americans, the elderly, the poor, which are targeted. This is a targeted
phenomena by people who, some legitimate, some bad actors out
there, but there is a predatory lending class of people who target
this. So the point I want to say going forward is my hope is that
we will make sure this legislation going forward has a major component piece in it that is a serious financial literacy piece that is
targeted at African Americans, it is targeted at the community that
the predators targeted because if the financial services industry,
and especially those dealing with mortgages and real estate, the
banking communities, if you do not make sure of this, we may very
well have to revert to an overreaching legislative piece. So I want
to make this urge that we have it and that we have a toll free
number in, that we have human beings at the end of the phone,
that we have it structured as an infrastructure within the Treasury
Department where we really take it serious, where we put money
and resources into the grassroots community, into the AARPs, into
the NAACP, into those groups that have the legitimacy, into the
church community, where people who are being targeted listen to.
And if we get nothing out but one message, before you sign on the
dotted line, call this number, talk to somebody because if
Bankrate.com is right in its survey, we have a major, major problem of a lack of a financial education and financial literacy for a
hugely growing amount of people.
Now with that said, my commercial for financial literacy being
said, it concerns me that when Chairman Bernanke, head of the
Fed, came before this committee a few weeks ago and was asked
about this question, he used some very rarely used strong language
from the Fed in regarding any aspect of the economy, he used the
words ‘‘concern’’ and ‘‘unease,’’ and ‘‘very concerned’’ to describe his
thoughts on the subprime lending situation. Now, as head of the
central bank, these are words that are used, as I said, sparingly
and very often never but do his words of concern and urgency create additional concerns that this subprime meltdown will create
broader credit crunch were the subprime problem spread to the
prime mortgage industry and even further into corporate credit?
Mr. HENSARLING. I thank the Chair. I think I heard earlier—say
something along the lines that our mortgage markets are by and

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large working today or at least perhaps roughly 85 percent of the
market. Is that a correct assessment of what I heard earlier?
I think at least I heard you, Mr. Reich, say that at least as of
now in your opinion with respect to some of the subprime foreclosure issues that are the focus of this hearing, that the market
is essentially correcting itself. Is that correct?
Mr. REICH. Well, I indicated that as a result perhaps of the guidance that the regulators have issued, that liquidity has dried up,
a number of lenders have exited the business.
Mr. HENSARLING. Which I understand doesn’t help you if it’s your
home that is actually on the list to be foreclosed. I am constantly
reminded of an aspect of the Hippocratic oath, and that is, ‘‘First,
do no harm.’’
Now for roughly 85 percent of the market it has worked well,
and in some respects if the market is beginning to correct itself, I
just want to make sure that as a Congress we do no harm, since
we all are aware that we have the highest rate of homeownership
that we’ve ever enjoyed in the Nation’s history. And at least some
of that, I assume, is attributable to subprime lending and creative
mortgage products.
I want to ensure that we protect consumers from fraud. I want
to ensure that we protect consumers from either misleading or ineffective disclosure, but I’m not really sure I want to protect consumers, an informed consumer, from making a decision that may
be a foolish decision because if I circumscribe his opportunities
then I’m doing it for everybody else in the Nation.
And I would like to follow up with some comments on the line
of questioning from the gentleman from Georgia over here, Mr.
Scott. We haven’t agreed a lot recently, but we certainly agree on
this. And that is a lot of the disclosures that we see in these real
estate transactions can be highly misleading using a jargon that
many consumers do not understand.
And I myself, my wife and I, closed on a condo here in Northern
Virginia 2 years ago, and I signed a dizzying array of disclosure
statements, none of which I understood. And believe it or not, I’m
an informed lawyer, and if I don’t understand it, I’m not sure how
anybody else is going to understand it.
So my first question is, to whoever wants to take it, what can
we do to make disclosure more effective, and in some cases isn’t
less more? Whoever would care to take that one, that ball is up in
the air.
Ms. BRAUNSTEIN. I’ll take the first shot at that. Since we are the
rule writers for the Truth in Lending Act, which controls the mortgage disclosures, it’s not everything—people often think that everything you get at settlement comes out of Federal disclosure laws,
and that’s not really true. There are really only a few pieces of
paper that are involved with the Federal laws. The rest of it are
other things.
But we are engaged in an effort to look at all the mortgage disclosures that are required by the Truth in Lending Act and try to
make them more understandable. We agree with you that they are
not optimum at this time. We are planning to engage in consumer
testing and focus groups. We have gotten away from the idea that
used to exist in the olden days which was that lawyers sat around

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in a room and developed consumer disclosures which ultimately, at
the end of the day, the only people who understood them were
other lawyers, and obviously not always even other lawyers.
Mr. HENSARLING. Well, I commend the effort. I think it is a good
one, and I think somehow simplicity of disclosure, more effective
disclosure, what Mr. Scott was speaking of, more effective consumer financial literacy is at least part of what it’s going to take
to help remedy this situation.
And I have another question, and that is listening to some people
engaged in this debate we seem to be going down—in some respects some people seem to be going down what I consider to be
a slippery slope of only having the lender decide on the suitability
of a credit product, and that if for some reason the lender chooses
the wrong credit product then all of a sudden liability will attach
to the lender.
It seems to me that a lot of the major players in the market if
that were true would simply become risk adverse and begin to exit
this market. And then all of a sudden millions of Americans who
would have had homeownership opportunities would be denied
those opportunities. Do you agree with that assessment?
And once again the ball is up in the air, since I only have time
for one answer, I assume. Ms. Bair?
Ms. BAIR. Well, I think borrowers should have the ability to
repay. It’s an age old underwriting standard, and banks certainly
are very familiar with underwriting to make sure that when you
qualify a borrower for a loan, that borrower should have the ability
to repay the loan.
I don’t support a suitability standard. I think that’s a securities
concept. I’m not sure it applies. I think it would be confusing and
could create a lot of uncertaintly. If we’re talking about ability to
repay, I think some people confuse the two. I do think we should
have an ability to repay standard. That’s been around a long time.
It’s just a commonsense standard.
Mr. HENSARLING. Thank you.
Chairman MALONEY. The gentleman’s time has expired. Emanuel
Cleaver from Missouri.
Mr. CLEAVER. Thank you, Madam Chairwoman. Can I find out
first of all those of you who agree—I’m following up on the questions and comments of my colleagues, Mr. Miller and Mr. Scott. So
can I find out those of you who agree that there is in fact marketing of subprime loans in African-American and low-income
neighborhoods? Do all of you agree? Is there anyone who does not
agree?
What kind of action do you think we should take if we discover
that there was advertisement going on in a particular neighborhood for joggers to start running in a particular area of the city
and if they were just given an avalanche of information, flyers
about jogging in this area and when they jogged in the area they
were mugged. Do you think that the free market system should
allow us to continue to allow pamphlets to be distributed in this
neighborhood about coming to another area where they would be
mugged or whether something should be done?
Actually, we’re talking about mugging here anyway, financial
mugging, so I’m trying to figure out what you think should be done.

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Did you understand the question? Did you understand the illustration about passing out leaflets in the neighborhood to get people to
come jog in an area and they would be mugged when they get into
the area? Is there anybody who doesn’t understand it?
Ms. JOHNSON. Congressman, we believe that credit unions can
actually do a very responsible job of subprime lending, separating
subprime from predatory lending. There’s a need for subprime
lending. And again I would say that something that would help
would be allowing all credit unions to adopt underserved areas so
that those consumers would have access to another traditional type
of financial institution.
Mr. CLEAVER. Okay. Why do you think the marketing is going on
in African-American and low-income neighborhoods?
Ms. BRAUNSTEIN. I think that oftentimes there is a perception
that borrowers in those neighborhoods are more vulnerable and
that this obviously was a way of generating income on the part of
the people doing the marketing—
Mr. CLEAVER. Mugging, mugging.
Ms. BRAUNSTEIN. And I think that there are a couple of ways
that we can address that. It’s difficult to stop people from marketing in a neighborhood. However I think, as the Congressman
from Georgia said, financial education is incredibly important for
consumers, and we have also tried to encourage prime lenders to
be more assertive in those neighborhoods.
Mr. CLEAVER. Is there anyone who disagrees that there’s financial mugging going on directed toward particular neighborhoods?
Mr. REICH. I don’t doubt that it may be occurring, and to the extent that it is a result of actions by insured institutions who are
supervised by the regulatory agencies sitting at this table it will
stop as a result of the proposed guidance, which is out, when that
guidance becomes effective, when institutions are forced to make
their loans based upon the abilities, the individual’s ability to
repay the loan.
Mr. CLEAVER. Would that include prepayment penalties that—
Mr. REICH. We have addressed the subject of prepayment penalties in the guidance also.
Mr. CLEAVER. Thank you, Madam Chairwoman.
Chairman MALONEY. Congressman Campbell from California.
Mr. CAMPBELL. Thank you, Madam Chairwoman. I’ve listened to
a lot of discussion about the difference between predatory and
subprime, but what I wanted to talk about a little bit is the differences between predatory and poor predatory practices and poor
underwriting.
The conditions which have caused this hearing to occur today,
my perception is that what has been going on is much more attributed to just flat poor underwriting than it is to predatory practices.
And part of the reason I would say that, and then I’ll ask you all
to comment on whether you agree with that or disagree with that,
one of the things we’ve heard a lot about is we have a number of
these loans out here where the first payment hasn’t been made.
Well, if the first payment hasn’t been made, that’s really bad underwriting but almost certainly not predatory. In a lot of cases
there’s bad underwriting but the people have a good interest rate
and everything else. They just—nobody should have made them a

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loan because they just weren’t in a position to pay it back. So do
you agree that that’s really where the issues are?
I’m not suggesting there’s no predator. I mean obviously I’m not
suggesting that. I’m just suggesting that what there’s been a lot of
lately that perhaps has occurred—gotten to the problem that we’re
in.
Ms. BRAUNSTEIN. I think it’s been a combination of lax underwriting, and there also are instances, I’m sure, of predatory lending. I think it would be very difficult to separate and quantify how
much of which was going on.
Mr. CAMPBELL. But they are very distinctly different practices. I
mean arguably predatory, the lender is taking advantage of a potential borrower and making a lot of money on them. With bad underwriting the lender is going to lose money because—if they make
too many loans that people can’t pay back.
Ms. BRAUNSTEIN. Well, no. I think there’s a lot more overlap
than that because even with lax underwriting if there were initial
fees up front the lender still is going to make something on the
front end. So I think there’s a lot more overlap between predatory
and just bad underwriting, and there’s probably some of both in
this market.
And as I said, I think it would be very difficult to separate it.
Mr. CAMPBELL. Anybody else wish to comment on that? Yes.
Ms. BAIR. You know, I think you’re right. There is a difference.
I think we were focusing on predatory lending because it’s the subject of the hearing as indicated in the invitation letter. Getting
back to mortgage fraud, too, another area that we address in the
draft subprime guidance, these no-doc loans or low-doc loans
which—and we say in the proposed guidance—in and of itself is not
a mitigating risk factor. I think a lot of the early payment defaults,
potential mortgage fraud, there is a correlation between no-doc,
low-doc loans and these payment defaults. So that’s probably near
where we’re talking more about poor, very poor underwriting
versus something—there may not be a balloon at the other end
that we need to be concerned about—but there still is a problem
with the underwriting.
Mr. CAMPBELL. Anybody else wish to comment on that? No?
Okay then one of my concerns on this, Chairman Bernanke of
the Federal Reserve, when he was here, was indicating that one of
the—I think he indicated that the greatest risk factor to recession
this year was if housing were to take a hard fall.
The object of what we’re doing here, I hope, is to solidify
subprime mortgage lending and not dry it up because if we dry it
up, I think we could potentially put a bunch of houses on the market, take a bunch of buyers out of the market, and potentially create something that drastically hurts the economy.
Another figure that’s been out there lately has been, I think, the
13.7 or 13.8 percent, something like that, of subprime loans which
are currently behind in payments. I frankly can’t recall whether it’s
30 days, 60 days, or 90 days.
If that’s the case though, it does mean that 86 percent of these
people with—it wouldn’t be subprime if the credit weren’t marginal. So it does mean that 86 percent of these people with marginal credit because of the subprime market have been able to buy

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homes whereas without the subprime market they wouldn’t. Any
comments on the loan—because obviously in a subprime you’re
going to have a higher loan default ratio than you are in a prime
market or in the A-whatever-it-is market that’s in the middle.
Any comments on whether that—it’s obviously higher than it
was, but is it way too high on a historic basis?
Ms. BAIR. Well, it is high. Historically, they have been higher,
but we’re seeing a strong correlation between payment resets and
home price depreciation in areas with these default rates. And the
adjustable rate products have significantly higher delinquency
rates than the fixed rate products.
The problem is to help people restructure into a product that
they can afford. One thing we’ve been looking at is whether we can
transition borrowers into fixed mortgages, and that might be the
silver lining in all of this. We’ve been doing analysis of the rate
sheets of the major subprime lenders. The rate for their 30-year
fixed is actually only 40 to 50 basis points higher than the starter
rate on the 2/28 which a lot of these people are in.
So we’re thinking that if you can qualify borrowers for a 2-year
starter rate, you can qualify them for a 30-year fixed. And we’re
hoping that perhaps as these interest rates reset, and people have
to refinance, we can get more people into 30-year fixed that would
not have the payment shock.
Chairwoman MALONEY. Time has expired. There have been a
number of issues raised about targeting vulnerable borrowers and
I wanted to note that the subcommittee will be having hearings on
this particular subject. The Chair recognizes Congressman Ellison
of Minnesota.
Mr. ELLISON. Thank you, Madam Chairwoman. I wonder if, Ms.
Bair, you could comment on how the clustering of a number of foreclosures that come about in connection with subprime loans impacts a neighborhood.
Ms. BAIR. Well, it could have a very negative impact on neighborhoods. I mean this is as I indicated in my statement, one of the
reasons we support and endorse and promote homeownership and
welcome it and subsidize it. I support all of this is because one of
the many social benefits is that it stabilizes neighborhoods.
If you have a series of people in a situation that their homes are
going to be foreclosed, and they are in danger of losing their homes,
that’s a tremendous stress not only just on the family but on the
neighborhood as well.
Mr. ELLISON. Does it have any other kind of spillover effects beyond just the physical reality of foreclosure? I mean what happens
to these homes? Are they bought by other homeowners? Are they
bought up by people who can buy them cheaply?
Ms. BAIR. I think the first choice is always to try to keep people
in their homes, to try to undertake loss mitigation techniques to restructure the loan to keep them there.
Yes, there are adverse economic effects as well. If we have a lot
of foreclosures and a lot of housing stock going on the market, that
could further depress a market that’s softening in a lot of areas already.
Mr. ELLISON. Now what about those—I mean I’m glad that you
pointed out that you try to get the bank to redo the loan with the

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borrower, but is that always possible? I mean what if the bank has
sold that loan? Can they go back to the same bank where they got
it?
Ms. BAIR. That is a problem. We’re having a roundtable on April
16th with the representatives of firms that securitize these loans
because there may be some issues about whether the terms of the
securitization agreements may inhibit the ability to restructure.
That’s a key area that we’re going to be looking into at this roundtable, so I don’t have a good answer for you right now.
Mr. ELLISON. So for example if somebody—if a bank were to have
sold that loan and it got bundled up and packaged with a bunch
of other loans who then does the borrower go to and try to—is it—
Ms. BAIR. They would go to whoever is servicing the loan at that
point. That would be the firm, the entity that would be getting the
restructuring. But again, whether the servicer has the latitude to
restructure the loan under the securitization agreement is what we
need to deal with and we don’t have a good answer. We think there
is significant latitude, but that’s one of the things we want to get
into at our roundtable.
Mr. ELLISON. Another question I wanted to ask you, and it goes
back to the gentleman who was asking a few questions before, just
in terms of how people make money on these loans, if it’s a broker,
isn’t it the case that they already have an incentive to make sure
that the borrower is going to be able to pay the loans because once
they do the deal they get their money and they’re out? Is that
right?
So the question of whether it’s bad underwriting or good underwriting or the quality of the underwriting, from a broker’s standpoint, once the deal is done and their fees are paid it really doesn’t
matter whether it’s a well underwritten loan or not. Am I right or
wrong?
Ms. BAIR. Well, I think there are a lot of really good mortgage
brokers out there who don’t want to—
Mr. ELLISON. And I’m not trying to disparage mortgage brokers.
Ms. BAIR. And I think the reputable mortgage brokers do worry
about whether their loans perform in terms of maintaining a relationship with lenders. But there are—as Commissioner Antonakes
has pointed out and others on this subcommittee—significant problems with the conduct of some mortgage brokers. In that case, they
are just trying to make a quick buck. You’re right.
Mr. ELLISON. Yes, and I guess whenever you ask a question
there are the connotations of the question, and people try to control
for those so they don’t put anybody down, but leaving all the nice
stuff aside, after the mortgage broker does the deal they’re going
to be the most reputable person on the Earth, but they have completed their work—
Ms. BAIR. No, they are not on the hook for that.
Mr. ELLISON. Right. Let’s just talk about the loan officer a little
bit. After the loan officer has—let’s say they’re the one who did the
deal. After that loan is sold, they’ve made the money they’re going
to make out of it and they’re done; am I right?
Ms. BAIR. Yes.
Mr. ELLISON. So when it comes down to whether or not—so there
really is a more serious problem than just whether—I mean they

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actually—in some ways there is an incentive to have loans underwritten in a way that facilitates the doing of the deal but not necessarily the paying of the mortgage.
Ms. BAIR. I hate to qualify, but I really do feel like I need to. I
think lenders, responsible lenders, do worry about their reputations
and their relationships with those who acquire their mortgages to
keep this pipeline open. So I do think there’s some reputational
risk that serves as an incentive to have well performing assets.
That said—
Mr. ELLISON. Ms. Bair, it sounds like you’re saying that I’m
wrong and that—
Ms. BAIR. You’re not wrong.
Mr. ELLISON. Okay.
Ms. BAIR. There’s no doubt that securitization has had an impact
on the loosened underwriting standards we’ve seen by lenders.
There’s no doubt about it.
Mr. ELLISON. Thank you. So the answer is yes. There is an incentive—
Chairwoman MALONEY. The gentleman’s time has expired.
Thank you.
Mr. ELLISON. 30 seconds?
Chairwoman MALONEY. We’re running out of time. We have two
more speakers, Joe Baca of California and Al Green of Texas, and
then we have to conclude this first panel so that we have time for
the second panel.
As I said in my opening remarks, we have a time limit on the
amount of time we can be in this room and we need to have time
for our second panel.
Joe Baca of California.
Mr. BACA. Thank you very much, Madam Chairwoman. Thank
you very much for having this hearing. I think it’s very important
to a lot of us, especially what’s going on nationwide.
We realize the impact that it has on the poor and the disadvantaged, especially as it pertains to African Americans and Hispanics,
so we appreciate having the hearing, and I appreciate the gentleman’s question right now, and I wanted just to follow up a little
bit with it.
Is there a list of those who abuse the system right now, and
maybe when we talk about an educational process that needs to be
done, whether it’s financial institutions, financial education? What
we need to do though is those mortgage brokers that are abusing
this system, we need to put out a list of those individuals so we
can begin to educate our communities—these are the bad lenders
out here that are abusing the system, that are taking advantage
of the poor, the disadvantaged and others who are just out to make
a profit and they don’t care about the individual in terms of the
loans. That needs to be done, so I appreciate that.
But I want to get back to a specific question. And I want to know
the impact of subprime lending on Latino homeowners. What control will be put in place to protect consumers from predatory practices and especially how will you ensure that the exorbitant fees
and rates associated with subprime practices will not occur with future borrowers?

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That is question number one. Any one of you can answer that,
or Ms. Braunstein, would you please tackle that?
Ms. BRAUNSTEIN. Well, that was one of the reasons that we have
issued the proposed subprime lending guidance was to address
some of those issues about borrowers and hopefully—I think that
guidance is already taking effect in the marketplace and will continue to.
Mr. BACA. But how are we holding them accountable and what
oversights are we doing on those individuals who continue to still
give out the loans? So there has to be some accountability for those
that continue to prey on the poor, the disadvantaged, especially
when I look at Inland Empire, where I come from, there’s a high
number of foreclosures and defaults in my area. So we’re not holding those individuals accountable yet we have people that are losing their homes. And this is for the very first time that they’ve
bought a home, they maintain a home but they have some bad advice because someone wanted to take advantage.
Ms. BRAUNSTEIN. Most of the bad actors to which you refer are
not in the depository institutions, which is who we regulate and supervise. If we find that there are practices that are illegal or fraudulent in our institutions we do take action, however a number of
the actors in the market that we’ve just talked about are not being
supervised directly by anybody.
Mr. BACA. Who’s responsible for supervising them?
Ms. BRAUNSTEIN. Pretty much the States.
Mr. BACA. And why aren’t they?
Mr. ANTONAKES. Well, I beg to differ with my colleague in terms
of them not being supervised. They are being supervised. And our
database—
Mr. BACA. If somebody is making the statement that they’re not
supervised, then there is a concern right here, and that’s affecting
us in our communities. If somebody is saying that the State isn’t
doing it and yet when you look at the foreclosures in each of the
areas and its impact—and specifically when it has—and I’m concerned from the Hispanic perspective, the foreclosures and people
that are losing their homes right now.
Something needs to be done. There has to be the accountability.
There has to be that oversight.
Mr. ANTONAKES. I agree completely, Congressman. And I would
only add that broker supervision largely falls to the States.
Through our database we will have a collection of public enforcement actions against brokers. I would also add however that certainly the securitization of loans has created incentives for prudent
underwriting standards to become lax and for brokers to push
through loans.
However those loans can only be pushed through if they’re funded by someone, if there’s a product available. The broker can’t do
that on their own. And that is done through other firms, lenders
and national institutions and also provided by direct financing from
companies from Wall Street.
I would suggest—and we’ve done it in my State in Massachusetts
many years ago—that if a bank has lines of credit with either a
lender that is pushing through predatory loans or loans that aren’t
underwritten appropriately that the national regulator through the

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COA authority has a responsibility to take that into account, those
practices. If they know that they’re doing business with inappropriate lenders, then they should take action.
Chairwoman MALONEY. The gentleman’s time has expired. Mr.
Green from Texas.
Mr. GREEN. Thank you, Madam Chairwoman, and I thank each
of the witnesses for appearing today. In one of our great documents
we connote, indicate if you will that all persons are created equal.
Apparently something happens between creation and loan acquisition because for whatever reasons we are finding that invidious
predatory lending impacts some ethnic groups more than others
and the question really is what will we do about it.
But before going to the question, let me just mention testing.
Every time, every single time we have employed testing we have
found that invidious discrimination exists, every single time. Given
that we know that it exists, what have we been doing to combat
it in terms of prosecuting persons? Can anyone comment, please?
Ms. BAIR. Again, we only regulate depository institutions, statechartered depository institutions, in the FDIC’s case. We identify
outliers based on the HMDA data. We do very vigorous compliance
reviews of the banks that are shown to be outliers under the
HMDA data. We’ve referred cases already where we’ve identified a
pattern or practice of discrimination to the Justice Department for
prosecution, so we take it very seriously and we very vigorously examine for it.
Mr. GREEN. How many cases have been prosecuted by the Justice
Department in the last year?
Ms. BAIR. That I wouldn’t know. We could try to find out for you.
Mr. GREEN. Anyone have any information? Do you know how
many within the last 5 years?
Ms. BAIR. We could contact the civil rights division of the Justice
Department. No, we don’t. I don’t know off the top of my head, but
we could try to find the information for you.
You’re interested in financial services areas, yes?
Mr. GREEN. Yes, I’m interested in knowing what we actually are
doing, given that we have empirical data to suggest that certain
things are occurring.
Ms. BAIR. Right.
Mr. GREEN. What are we actually doing about it?
Ms. BAIR. Well, the availability of HMDA data, to the level of detail we currently have, is relatively recent. We just began getting
this level of detail last year, so our ability to use this as a tool is
a fairly recent vintage.
Mr. GREEN. Let me move on to something else. We have a number of families who will lose their homes and as a result they will
have credit problems. What are we doing to give them an opportunity? Assume that you are foreclosed on, what are we doing to
give them an opportunity to reenter the credit market and have another opportunity to own a home given that we know that we have
a circumstance with the housing prices falling and with a lot of
these loans being subprime? What are we doing to give them an
opportunity to get back into the housing market?
Mr. REICH. Well, to the extent that these families are in homes,
the mortgages are held by the depository institutions that we regu-

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lators regulate, we are encouraging the institutions to work with
these families prior to the foreclosure completion to forestall a foreclosure or to try to prevent a foreclosure from taking effect.
Mr. GREEN. After foreclosure, what are we doing? We have literally, my suspicion is, millions of persons who will find themselves
losing their homes, and we want to give them an opportunity to get
back into the market.
Let me go to the next question. What about the cost of this?
What is it going to cost in terms of dollars with all of the foreclosures? What will be the amount of money that the marketplace
will lose due to the foreclosures? Anyone know?
Mr. REICH. It’s difficult to project.
Mr. GREEN. Is it billions?
Ms. BAIR. I think there is a recent study, it’s not a government
study, that estimated—I think it was about $140 billion over the
next 6 years.
Mr. GREEN. $120 billion?
Ms. BAIR. $140 billion.
Mr. GREEN. Total?
Ms. BAIR. Over the next 6 years. We can get you a copy of the
study. I’m going off the top of my head, but I think that was the
ballpark about what they—that is one private sector study.
Mr. GREEN. If we bonded many of these persons who are going
to be foreclosed on, would they—with a better interest rate would
they be able to stay in the marketplace and maintain their homes?
Anyone?
As some States are doing, bonding?
Ms. BAIR. Sir, I’m sorry. I should not have spoken off the top of
my head. Over 6 or 7 years—would result in loses of about $112
billion. It’s 143,000 foreclosures every year over the next 6 years.
Mr. GREEN. Here’s my closing comment, Madam Chairwoman,
and thank you. We are spending about $333 million a day on the
war. We seem to find the money to cure the ills that we deem to
be a priority. It seems to me that we ought to do more to find a
way to help people maintain their homes given that we know that
some of the circumstances that are causing them to lose their
homes are somewhat shady, and that’s being kind. I think we need
to do more, and I yield back the balance of my time.
Chairwoman MALONEY. That’s a good point to end on, and we are
out of time. I would like to follow up on the point that the gentleman made on enforcement or the lack thereof. And I would like
to ask a question. My time has expired, so if you would, get back
to me in writing.
If the guidance were made for the whole market, who would enforce that for each of the different sectors? The Truth In Lending
enforcement plan would give the FTC enforcement authority over
a large part of the market, but as several of you have testified the
examination powers of the Federal banking regulators are important. So your comments—if you could, get back to us in writing on
how we would make the enforcement go forward. And I would just
like to end with that point that many of you made that the bankers
will not be selling these loans if lenders don’t make them.

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And going back to the guidance, which basically says that you do
not make loans to people who cannot afford it, would in many ways
adjust and correct this market.
I would like to say that the Chair notes that some members may
have additional questions for this panel, which they may want to
submit in writing. And without objection, the hearing record will
remain open for 30 days for members to submit written questions
to these witnesses and to place their responses in the record.
I want to thank you for your testimony today and for your attention to this very pressing problem. Thank you very much.
[Recess]
Chairwoman MALONEY. The subcommittee will come to order. We
have a limited amount of time remaining to us. Our second panel
this afternoon consists of several distinguished members as well.
We have: Michael Calhoun, president of the Center for Responsible
Lending; Josh Silver, vice president of research and policy for the
National Community Reinvestment Coalition; Allen Fishbein, director of housing and credit policy for the Consumer Federation of
America; John Robbins, chairman of the Mortgage Bankers Association; Harry H. Dinham, CMC, president of the National Association of Mortgage Brokers; and Mr. Alex Pollock, resident fellow,
from the American Enterprise Institute. And without objection, the
witnesses’ written statements will be made part of the record. You
will each be recognized for a 5-minute summary of your testimony.
The Chair now recognizes Mr. Calhoun for 5 minutes.
STATEMENT OF MICHAEL D. CALHOUN, PRESIDENT, CENTER
FOR RESPONSIBLE LENDING

Mr. CALHOUN. Thank you Madam Chairwoman, Ranking Member Gillmor, and members of the committee, for the opportunity to
speak to you today about the causes, the impact, and most importantly the reforms necessary to address the foreclosure crisis seen
today in the subprime market. First, I think it’s important to look
at what the typical subprime loan today is like, and when you do
that, you will quickly see a lot of the origins of our problems.
The typical subprime loan today has a built-in payment shock of
40 to 50 percent, even if market rates do not increase. For example,
a typical subprime loan starts at 71⁄2 to 8 percent, and when it readjusts as you have heard about today, it will jump to nearly 12
percent again, even when market rates do not change. That same
loan typically has no escrows for taxes or insurance, making them
due in a lump sum, which further stresses the borrower. It’s based
on undocumented income and it typically comes with a prepayment
penalty that most borrowers end up paying. As a result of that, our
research shows that over 2 million borrowers in the subprime market will lose their homes.
And it is important to put that in context, as people have said
today. Subprime loans make up less than one-sixth of the overall
mortgage market, yet they are producing almost two-thirds of all
foreclosures in the entire mortgage market today. We have done
further research which is set out in detail on page 13 of my testimony, that shows the macro impact of this on homeownership.
Going back over a 9-year period, it shows that the net impact is

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almost a million more families lose their homes as a result of
subprime lending than are to homes as first-time homebuyers.
That’s driven by two pieces of data. As Representative Miller
noted, a very small percentage of subprime loans are in fact first
time homebuyer loans. And then second, you have these very high
levels of foreclosures. You put those together and you have the fact
that today the subprime market has been a destroyer not a creator
of homeownership for American families. As Chairwoman Bair
noted, that’s not only tragic, it’s unnecessary. As she pointed out,
a subprime borrower can receive a standard 30-year fixed rate
mortgage at a lower rate and lower monthly payment than they
would receive one of these 2/28 TSR arms with a built-in payment
shock. But market dynamics make it more profitable for participants in the mortgage market to give them that much riskier loan.
What reforms are needed?
First of all, of course, the guidance that we talked about should
be implemented. There are major attempts though of push-back by
some lenders who openly criticize that guidance, and that must be
fought off. Second, the HOEPA Authority under the Fed; the responsibilities of the GSEs to meet the standards must be followed.
Families in foreclosure also need help with workouts. FHA, which
I think you will address soon, will play a major role.
There also are two legal impediments for these families now that
I urge you to investigate. First the tax code often makes loan forgiveness taxable to the borrowers, so even if they are able to get
loan forgiveness, they can still get a notice from the IRS saying
that they owe tens of thousands of dollars in additional taxes. Second, the Bankruptcy Code is presently stacked against homeowners, making it almost impossible for them to modify and get relief when they are behind on their mortgage.
Finally, there needs to be action on a national bill for sustainable
home lending. At the top of that list needs to be addressed the
broker role, which is being addressed today. First, under current
law, brokers are generally allowed to disclaim any duty to the borrower. It needs to be affirmatively established that they have a fiduciary duty to the borrower. Second, today, brokers are even allowed to receive bonuses for putting borrowers in higher interest
loans than they qualify for. That should stop, most importantly for
enforcement. Lenders need to be held responsible for the acts of
brokers. That’s the self-enforcing market mechanism that’s been
needed.
There’s been talk here of education. Let me suggest—we don’t
tell purchaser’s of insurance policies to go educate themselves by
reading insurance books to make sure that their insurer doesn’t go
out of business. It is much the same in the mortgage market. There
need to be substantive standards. Education has a role, but it won’t
be the only solution.
Finally, there needs to be flexibility. It was indicated today that
the 1999 North Carolina Mortgage Predatory Lending law did not
address a lot of the practices that we see today that developed in
only the last couple of years. I think you will see further action by
North Carolina in this legislative session.
Thank you for this opportunity to share our comments.

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[The prepared statement of Mr. Calhoun can be found on page
288 of the appendix.]
Chairwoman MALONEY. Thank you very much.
The Chair now recognizes Mr. Silver.
STATEMENT OF JOSH SILVER, VICE PRESIDENT OF RESEARCH AND POLICY, NATIONAL COMMUNITY REINVESTMENT COALITION

Mr. SILVER. Chairwoman Maloney, Ranking Member Gillmor, it
is an honor to be here today as a voice for the over 600 community
organizations that comprise the National Community Reinvestment
Coalition. NCRC is the Nation’s economic justice trade association
dedicated to increasing access to fairly priced credit and capital for
minority and working class families. We stand on the precipice of
a mortgage tsunami in the United States.
According to the FDIC, interest rates are due to rise for borrowers of one million subprime loans in 2007, and another 800,000
borrowers in 2008. In numerous cases, unsuspecting borrowers discover that the introductory TSR rates on subprime ARM loans have
expired and are replaced by unaffordable monthly payments. More
than 14 percent of outstanding subprime loans were delinquent by
the end of 2006,
The final regulatory guidance on non-traditional mortgages and
the proposed guidance or subprime arm loans are necessary but not
sufficient to save us from hundreds of thousands of foreclosures.
The guidance requires lending institutions to assess borrower capacity to repay at the fully indexed rate, not the TSR rate. The
sound underwriting in the proposed guidance should eliminate
many of the abuses in the unsafe and interceptive ARM subprime
lending. Yet, the guidance does not come close to providing comprehensive coverage. It applies to about half of the subprime lending, which is conducted by banks, thrifts and their affiliates. It
does not cover prime ARM lending, which can also be problematic
when TSR rates are low and when the APR is in the upper ranges
of prime pricing. The guidance also cannot directly cover non-banking institutions, including brokers, appraisers, closing agents,
securitizers, and services, all of whom contain abusive actors perpetuating and enabling dangerous lending.
While the regulatory guidance is a good start, Congress needs to
pass a comprehensive anti-predatory lending bill. You will hear industry representatives insist that policymakers should not overreact and, therefore, choke off lending and the American dream of
homeownership. These assertions, however, fail to recognize that
lending markets are broken, as Representative Ellison was trying
to draw out. The problem is there is a lack of financial incentives
for the actors, brokers, and securitizers and several other actors to
behave responsively.
NCRC’s experience and research demonstrate that the broken
marketplace needs a major fix in order to avoid the tsunami.
NCRC operates a foreclosure prevention program called the Consumer Rescue Fund and engages in mystery shopping on a national
level. In my written testimony, I describe a number of Rescue Fund
cases in which borrowers of subprime ARM loans experience multiple abuses committed by appraisers, brokers, loan officers, and

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servicers. Tragically, NCRC has reaffirmed that these overwhelming abuses are disproportionately experienced by minorities
and hard-working Americans—the very same families that industry
trade associations want to protect from more regulation and consumer protection.
We conducted national level mystery shopping of subprime mortgage companies and brokers in several metropolitan areas. We
armed our minority mystery shoppers with better qualifications.
Yet, they consistently received less service, higher subprime
rates, and fewer loan options than white shoppers. When we combined credit within this data, it withheld the data. We found that
the portion of subprime lending was higher as a portion of minorities and the elderly was higher enablements in several large metropolitan areas. CRL and Federal Reserve economists have found the
same things. The lending marketplace is broken and the victims
are disproportionately minorities, the working class, and the elderly.
So, I conclude with three major policy recommendations. Congress must swiftly pass a strong comprehensive anti-predatory
lending bill. The abuses are too pervasive and cut across too many
actors in the industry to be tackled successfully by regulatory guidance. Second, Congress must pass the CRA Modernization Act of
2007, H.R. 1289. The Federal Reserve has found that CRA encourages banks to make more prime loans, thus, CRA acts to increase
product choice in working class and minority neighborhoods.
CRA also provides fair lending reviews, checking for abusive
lending. CRA must be applied to all bank affiliates, large credit
unions, and independent mortgage companies. Recently, NCRC
called on the Administration and Congress to re-till the FHA program so they could offer rescue refinance loans to victims of predatory lending. In addition, Congress should consider a national foreclosure fund to offer remediation for families experiencing foreclosure through no fault of their own.
It is time to put American families first. Hundreds of families
and children are losing their homes every day due to predatory
lending. That is not a marketplace that is working. Haven’t we deregulated enough? It is time to end the suffering and save the
American dream of homeownership by passing a strong national
anti-predatory lending bill.
Thank you so much.
[The prepared statement of Mr. Silver can be found on page 315
of the appendix.]
Chairwoman MALONEY. Thank you so much.
Mr. Fishbein?
STATEMENT OF ALLEN FISHBEIN, DIRECTOR OF HOUSING
AND CREDIT POLICY, CONSUMER FEDERATION OF AMERICA

Mr. FISHBEIN. Chairwoman Maloney, Ranking Member Gillmor,
and members of the subcommittee, it is a pleasure to be here today
to testify on behalf of the Consumer Federation of America. And,
we congratulate you for holding these hearings, which are coming
at the timeliest of times.
CFA is a national federation of some 300 pro-consumer organizations established in 1968 to engage in research, public education,

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and advocacy in support of the interest of consumers. The goal of
advancing sustainable homeownership is an important one for CFA
and its members. Homeownership can have many benefits, not the
least of which is the opportunity it provides to build personal
wealth. But these advantages are being eroded by the mass marketing of high risk non-traditional mortgage products to many consumers for whom they are not appropriate. What these loan products have in common is that they trade lower initial monthly payments for higher payments later that can escalate dramatically,
making these loans unaffordable for unsuspecting borrowers.
The abandonment in recent years by many lenders of careful underwriting based on the borrower’s ability to repay without refinancing or selling their home has made these loans even riskier.
Of particular concern are the high adjustable rate mortgage products that Mr. Calhoun and others have spoken about that became
the predominant product in the subprime market. Until about a
year ago, rising home prices and relatively low interest rates made
it possible for borrowers to refinance or sell their homes after the
initial period ended, or if they ran into trouble making payments.
This masked the fact the fact that many lenders were qualifying
borrowers based on the loans start rate, when home price appreciation leveled off as it did last year, delinquencies and defaults took
off rising to the highest level in a decade.
Delinquencies usually rise when the housing market slumps because borrowers are more likely to encounter difficulties in selling
their homes. In addition, if the prices fall, borrowers may find
themselves without the necessary equity to refinance it to a more
affordable loan. And this is why we are seeing this problem mushrooming right in front of our eyes. The widespread use of exploding
payment ARMs, and other payment deferred, non-traditional mortgage products points to a fundamental concern about whether consumers really understand just how much their monthly payments
can jump with these and other risky products.
In my written testimony, we discuss several examples of research
indicating that many consumers do not understand these terms.
CFA believes, therefore, that it is an opportune time to examine
the efficiency of steps that have been taken and whether additional
action is warranted. We also believe that more focus should be directed at financial institutions, investors, government, and the nonprofit sector to find creative solutions for keeping at-risk families—
who have been victimized by lax underwriting—in their homes. In
my written testimony, we summarize three areas of particular attention and I would like to just highlight them.
First, the lack of accountability for key actors in the marketplace.
Risk to consumers is vastly different today than risk to the industry. Lender’s today can shield themselves from the full potential
impact of foreclosures by selling their loans to investors through
mortgage securities. In effect, higher foreclosure rates have become
the cost of doing business. This presents risk for individual home
borrowers who cannot insulate themselves the same way against
this higher risk.
Mortgage brokers who originate the majority of subprime loans
have an incentive to close as many loans as possible and a very
good reason not to consider the loan’s future performance. The lack

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of effective oversight and consumer protections, both the front and
back ends of the subprime market, are contributors to the problem
we are witnessing today.
And we have one suggestion for one of your future hearings and
that is to invite the Securities and Exchange Commission to be
here and talk about what they think are the nature of some of the
problems in the marketplace, and whether current regulations that
they oversee are adequate.
Two, the Federal Banking Agency guidance, while it is helpful
and will help correct some of the abuses in the marketplace, is not
enough. Additional steps are needed. Finalizing the proposed
subprime statement that was issued by the regulators on March
8th would help to restore sound underwriting for subprime loans.
We support its quick adoption. I would also like to offer a letter
from some 70 organizations, written to the regulators on February
21st asking for the issuance of guidance along these lines.
At the same time, we recognize that there are important limitations to this policy guidance and it will take a long time to be fully
implemented. Thus, we support the need for a comprehensive rewriting of consumer protection laws, which we feel need to be updated.
Thank you.
[The prepared statement of Mr. Fishbein can be found on page
346 of the appendix.]
Chairwoman MALONEY. Thank you so much, and we are considering having a hearing along those lines.
Mr. Robbins.
STATEMENT OF JOHN M. ROBBINS, CHAIRMAN, MORTGAGE
BANKERS ASSOCIATION

Mr. ROBBINS. Thank you for the opportunity to speak about an
issue that has captured the attention of this committee and the financial services industry. As Mortgage Banker’s Association statistics show, delinquencies and foreclosures have risen over the past
6 months, particularly in the subprime market. In response, regulators have established new standards. Investors have punished
companies that made bad loans, and I am here today to answer
your questions about the effect it is having on consumers.
I believe MBA’s data in a written statement is both objective and
comprehensive, and I am confident that it is the most authoritative
in its data because it includes 86 percent of all outstanding mortgages. Economics aside, I want to talk today from the heart as
someone with 36 years of mortgage experience, and what I have
seen of late troubles me deeply. Responsible lenders only extend
credit to borrowers who are willing and able to make mortgage
payments. They do not trick borrowers into loans that are
unsustainable and they do not hold on something that is only a mirage of the American dream.
I have conducted my professional life according to these standards as has nearly every member of the Mortgage Bankers Association. Yet, bad loans were made. They were not made responsibly
or with the best interest of the consumer in mind. For the most
part, those making these poor loans have been punished by Wall
Street and restrained by regulators, and while we must ask what

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lessons we should learn from these mistakes, it is equally important for those in positions of authority to help current homeowners
stay in their homes.
Working together, I suggest that we accomplish three things: stabilize the subprime mortgage credit system; provide assistance for
homeowners facing foreclosure; and, finally, prevent this from ever
happening again. First, reaction from investors has been swift. Already, more than 20 subprime lenders have closed their doors. As
we watch this, we must remind people not to confuse subprime
with predatory, and, we must reiterate that while subprime foreclosures are high, at 41⁄2 percent, currently they remain below their
historic peak of 10 percent. A sound perspective and a prudent regulatory hand will seize investors, calm editorial writers, and most
importantly, help consumers.
Second, for subprime borrowers who are facing foreclosure, industry and policymakers must partner to help provide options so
that as many as possible are able to retain their homes. Chairman
Dodd recently called for a summit of all parties to address this
problem. MBA embraces that idea. Further, we at MBA strongly
encourage all borrowers who find themselves unable to make payments to contact their lender immediately. Lenders lose money on
foreclosures—in my company, it was $40,999 for each one—and so
they have have a strong desire to make any number of arrangements that would allow a borrower to start making payments again
and keep his or her home.
Third, lawmakers, regulators, and industry must work to ensure
that this situation does not occur in the future. Borrowers are
smart. When given good information, they make good decisions, but
they make poor decisions when they have bad information. And,
absence of pricing transparency coupled with the daunting and
complicated closing process has permitted certain actors to prey on
the unsophisticated. But frankly, every person from subprime to
jumbo borrower is susceptible when even the chief executive officer
of FNMA and the Secretary of HUD by their own admission cannot
understand all the documents at a mortgage closing.
The mortgage market is desperate for a rewrite of the Nation’s
settlement laws and a strong uniform lending standard to trap
predators and bring them to justice. I stand ready to meet with
each member of the financial services committees to discuss what
MBA will do to work to accomplish these goals. Together, we can
ensure that predatory lenders don’t foreclose on the American
dream.
[The prepared statement of Mr. Robbins can be found on page
360 of the appendix.]
Chairwoman MALONEY. Mr. Dinham.
STATEMENT OF HARRY H. DINHAM, CMC, PRESIDENT,
NATIONAL ASSOCIATION OF MORTGAGE BROKERS

Mr. DINHAM. Good afternoon Chairwoman Maloney, Ranking
Member Gillmor, and members of the committee. I am Harry
Dinham, president of the National Association of Mortgage Brokers. NAMB is committed to preserving the vitality of our cities
and the goal of homeownership. We commend the subcommittee for
holding this hearing. NAMB is the only trade association devoted

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to representing the mortgage broker industry. Mortgage brokers
must comply with a number of State and Federal laws and regulations. We are subject to the oversight of not only State agencies,
but also HUD, the FTC, and to a certain extent, the Federal Reserve Board.
First, let me say, it is a tragedy for any family to lose their home
to foreclosure. No one disputes this. Foreclosure hurts not only the
family, but the neighborhood and surrounding communities. As
small business brokers, we live, eat, shop, and raise our families
in these communities. When consumers’ properties decline, our
property values decline. When consumers’ neighborhoods become
unstable and prone to violence, our neighborhoods become unstable
and prone to violence. More than any other channel, brokers live
by the motto: Once a customer, a customer for life. What happens
in our neighborhoods and in our communities hurts all of us. Mortgage brokers do care. We believe everyone from Wall Street to
mortgage originators should work together to develop and implement appropriate solutions. At the same time, we must remember
that today America enjoys an all-time record rate of homeownership, almost 70 percent.
The challenge we face now is how do we help people avoid foreclosure, and at the same time ensure that they have continued access to credit. We realize that a number of recent reports have focused on the rise in home foreclosures. The truth is that we can
only speculate on the causes responsible for the rise in home foreclosures. There are a number of possible factors: bankruptcy reform, minimum wage gains, credit card debt, decreased savings
rate, decreasing home values, second homes, fraud, illness, and
other life events, to name just a few.
Do not rush to judgment before we have all the facts. We understand that Congress will be calling for a GAO study on the causes
of foreclosure. We expect the study to take into account a number
of possible economic and non-economic factors. We should examine
the conclusions before implementing any policy decisions that could
unfairly curtail access to credit. A President challenged the industry to increase minority homeownership by 5.5 million families by
2010. Wall Street investors, securitizers, rating agencies, underwriters, realtors, and originators responded in an effort to help
families own homes.
The events of the past 2 decades have created a mortgage market. Where today Wall Street creates a demand for certain mortgages and sets the underwriting criteria for these mortgages, it is
this criteria and not the mortgage originator that decides whether
the consumer qualifies for a particular loan product. With this said,
all of us, industry, government, and consumers, have a role in helping these families stay in their homes.
Here is a brief summary of what NAMB is doing to help families
achieve and maintain responsible homeownership. We support the
intent behind some of the key principles of the proposed guidance,
as well as the need to expand this application once finalized to all
market players to ensure uniformity and a level playing field. We
continue to advocate for affordable housing, including FHA reform,
and have pushed for increased mortgage broker participation in the

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program. We must make FHA a real choice for non-prime customers.
We support authorizing VA to provide reverse mortgages and expand access to credit, especially for elderly veterans. Since 2002,
we are the only trade association that has advocated for education,
background checks, and increased professional standards for all
mortgage originators, not just mortgage brokers. We continue to
oppose the flawed system proposed by CBS Armor, because it is
riddled with exemptions, enables bad actors to move freely unchecked, and will give consumers a false sense of security,. It does
not effectively address mortgage fraud or accountability.
We prepared and submitted to HUD a revised good faith estimate to help improve comparison shopping. Our code of ethics and
best business practices prohibit placing pressure on, or being pressured by, other professionals and we proposed the development of
loan specific disclosures to be given to consumers at the shopping
stage and beginning of funding. This would help consumers avoid
payment shock.
Thank you for the opportunity to appear today. I am happy to
answer any questions.
[The prepared statement of Mr. Dinham can be found on page
392 of the appendix.]
Ms. MALONEY. Thank you.
Mr. Pollock.
STATEMENT OF ALEX J. POLLOCK, RESIDENT FELLOW,
AMERICAN ENTERPRISE INSTITUTE

Mr. POLLOCK. Thank you, Madam Chairwoman, Ranking Member Gillmor, and members of the committee, for the opportunity to
be here today. I will use my 5 minutes—and I noticed that the
Chair is rigorous in enforcing the 5 minutes—to try to make five
points: One, the classic credit overextension pattern of the
subprime mortgage bust; two, the trade-off between risk and homeownership as a market experiment; three, fraud; four, the proposed
regulatory action; and five, my proposal for a one-page mortgage
disclosure document. Congressman Hensarling and Congressman
Scott both mentioned the difficulty, as have other commenters, of
understanding what you are getting into with a mortgage. I propose this one-page disclosure idea, which I will talk about more in
a minute.
First, as we all know, the subprime mortgage boom is over and
the bust is here. And Ranking Member Gillmor, unlike the members of the other panel, I am more pessimistic about where busts
go, all of the connections that you don’t necessarily see when you
first look at it, when there are serious credit problems.
In the mortgage market and in the wider economy, this is consistent with the context, which is that all of the elements of the
current subprime bust display classic errors of credit overexpansions, which are very familiar to students of financial history, and
which many of us have lived through before. It is essential to remember that the boom gets going because both lenders and borrowers experience success in the beginning. As long as the asset
price is rising, taking on risky debt by a borrower and making
risky loans succeed, and that success and belief in the continuing

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asset price rise ultimately sets up the bust. That is true whether
the asset is dot com stocks, oil, commercial real estate, houses or
anything else. It is first, success which builds up the optimism
which creates the boom which sets up the bust.
Second, there is a constant trade-off being made between risk
and homeownership. The American homeownership rate, as many
have pointed out, has moved up to 69 percent. On an international
basis, this is a good but not remarkable ratio. The United States
ranks tenth, is actually tied for tenth, among advanced economies
in homeownership ratio. The mortgage market is constantly experimenting with how much risk there should be, how that risk is distributed, and how it trades off with success or failure of lenders
and borrowers. If we want the long-term growth and innovation
that only market experimentation can create, then we will have
boom and bust cycles. In economics, nothing is free. You can move
the risks around, but you cannot make them disappear.
Many people have rightly brought up the long-term, fixed rate
mortgage loan, which is an excellent instrument, but I would remind the subcommittee that this form of mortgage caused the collapse of the savings and loans in the 1980’s. Subsequent to that,
to preserve the fixed rate mortgage required vastly expanded
securitization. But securitization, as other people have pointed out,
breaks the link between the originator of the mortgage loan and
who actually bears the credit risk. Nothing is free; everything is
trade-offs.
Third, fraud. Unfortunately, booms induce fraud. This is the testimony of history. This results in scandals on the part of both lenders and borrowers in some instances. Thus, we have fraud in multiple directions. Consider in this context, so-called ‘‘stated income’’
loans. You would think that the disastrous previous experience
with this bad idea, then called ‘‘no doc’’ or ‘‘low doc’’ loans and now
‘‘liars’ loans’’ would have been remembered, but it seems to have
been forgotten by the lenders. On the other hand, I would like to
point out that any borrower who lies about their income in order
to get a loan hardly qualifies as a victim.
Fourth, it is late in the cycle, as has been observed. Losses are
rising; credit is tightening; liquidity is disappearing; asset prices
are falling; and it is hard to do the right thing as a regulator that
is both in line with prudent standards and doesn’t induce further
tightness and reduction in credit. It seems to me the proposed
statement on subprime mortgage lending is in general a sober and
sensible attempt to balance these pressures, although how to set
the final balance is still open.
I will mention what hardly anyone has mentioned today: down
payments and savings. One mortgage lender was quoted as saying
recently, ‘‘Well, we’ll just have to tell some borrowers they have to
save for a down payment.’’ That struck me as quite a novel idea.
Imagine that. You might have to save.
Finally, the one-page disclosure: It has been pointed out that the
complexity and opacity of closing documents, many ironically mandated by regulation and law, makes it hard for borrowers to understand what they are doing, even for quite sophisticated people. I
have had, as I am sure we all have, the experience of being over-

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whelmed and befuddled by the huge stack of closing documents full
of confusing language.
We could have a one-page disclosure form—my written testimony
details what it should look like—which would make it impossible
for borrowers to be unsuspecting or surprised that the rate went
up. Or, to discover they had a prepayment fee after the fact; we
have to always know that before the fact.
Thank you, Madam Chairwoman.
[The prepared statement of Mr. Pollock can be found on page 428
of the appendix.]
Chairwoman MALONEY. I thank all of the gentlemen for their testimony. I am told we may have a vote at any moment, at which
point we will not be able to continue with the panel as another
committee is scheduled to come in.
But I would like to ask all of the panelists this one question.
Even as the subprime market was looking more and more risky,
the incentives for borrowers, lenders, brokers, and investors kept
expanding the market into riskier and riskier products.
How can we change the incentives at each step of the chain so
that we encourage sound lending practices? And, I would like to
start with you, Mr. Calhoun.
Mr. CALHOUN. Thank you, Madam Chairwoman. As I indicated
in my comments, you can start at the beginning; the majority of
subprime loans, by a good margin, were originated by mortgage
brokers. They have in testimony just recently in the Senate stated,
though, that they believe they have no legal duty to be watching
out for the best interests of the borrower. And, furthermore, they
state that they are an independent agent when it comes to the
lender. And what that means in practical terms is that a borrower
placed into an abusive and even illegal loan that is originated by
a broker often has no effective recourse.
Also, the lender has—rather than an incentive to police the
broker as has been suggested today—has just the opposite in today’s market. Because the broker claims they are an independent
agent, it is the lenders who have managed to turn the other way
in being knowingly ignorant of what happens with an abusive loan.
And then they say, if there are problems later, don’t blame me. I
just funded the loan. You go find the broker, and, by the way, that
isn’t going to help you with the servicer on Wall Street who is foreclosing on your loan. So, there has to be connections of feedback
and responsibility in the origination chain.
Mr. SILVER. As an economics student at Columbia University, we
talked about asymmetry of information and when actors don’t internalize, negative externalities. Those are two fundamental flaws;
could be two fundamental market failures. And, indeed, that is
happening, sadly, in the lending marketplace. One way to eliminate these violations of classical economic theory is to create strong
standards that all the actors must adhere to.
Last session, we had the Miller-Watt-Frank anti-predatory lending bill. I think that bill established some excellent standards. The
proposed subprime guidance also establishes some very reasonable
standards. To enforce these standards, you have to hold the actors
financially reliable. For example, if people don’t get tickets for
speeding, you are going to have more speeders and more reckless

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driving. Likewise, if we don’t have financial liability on all the actors, brokers, lenders, and the secondary market and servicers, you
are going to have continued problems and continued passing of the
buck. Thank you.
Chairwoman MALONEY. Thank you. Mr. Fishbein?
Mr. FISHBEIN. This is an important question and thank you for
asking it. Basic Federal consumer protection laws were written at
a time when depository institutions were the prime funders of
mortgages. I am speaking of the Truth-in-Lending Act, HOEPA,
and the Real Estate Settlement Procedures Act.
A lot has changed since those laws were written. Mortgage brokers, as has been pointed out, are the channel for 70 percent or
more of subprime loans. The secondary market has become much
more active in securitizing these loans. But yet, the basic consumer
protection laws have not been changed to reflect the new realities
of the marketplace.
Having a standard that applies to loan originators, whether they
are mortgage brokers or lenders, one that would require them to
operate under a duty of good faith and fair treatment to borrowers,
would help address some of the basic problems that you are hearing about today. With regard to the secondary market, it would
help to extend assignee liability so that the purchasers of loans or
the investors in these loans have some responsibility for loans that
are not based on ability to pay standards or in fact have predatory
characteristics.
Further, would be to make sure that the banking regulators are
doing all they can to extend the reach of their authority. For example, it is not clear whether the new non-traditional mortgage guidance issued last September and the pending subprime guidance
reaches to warehouse lines of credit, which depository institutions
are providing to lenders, or, for that matter, their investment in securities trusts.
We think all of these things need to be looked at very carefully
and we encourage the subcommittee to do that.
Chairwoman MALONEY. Thank you. Mr. Robbins?
Mr. ROBBINS. The marketplace is working. Over 20 subprime
companies have gone out of business. Other companies have been
substantially punished with repurchases and are showing losses.
So, to the extent that the market punishes bad players, that has
occured, is occurring, and will continue to occur. But, fundamentally, the system is broken and the system is broken because it is
not transparent. There is no clarity to this system.
I don’t think there is one borrower in a thousand who understands the papers that they sign; the number of times they sign it.
It allows predatory lenders to hide underneath that moray and morass of very complicated papers that they see at a mortgage closing.
We need licensing of mortgage lenders. We need education, financial literacy, and we need education at all levels, both at consumers
and at high schools. We need to make the system clear.
Chairwoman MALONEY. My time has expired. I invite the panelists to respond in writing if they would like to expand further on
the question. I believe it is an important one. Mr. Gillmor?
Mr. GILLMOR. Thank you, Madam Chairwoman. I have a question for Mr. Dinham. Let’s assume that most mortgage brokers are

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honest. They do a good job. But, as you indicated, there are some
bad apples. So, my question, is for a borrower under the current
system, is there any practical way for them to find out if the person
doing the lending has had any kind of disciplinary action, any
criminal activity, and if there isn’t a practical way to do that,
should there be?
Mr. DINHAM. Yes, sir. We would agree that feature needs to be
there. I can just relate back to the State of Texas. They have a Web
site which has all the occurrences against a particular broker. So,
all you have to do is have his number, which is clearly displayed
on his wall. And you can go on the Web site and see if there has
been any kind of a problem that he has been in at that point. So,
in other words, a lot of us are licensed and we are subject to the
laws of our States. And those States all have Web sites and they
all have the ability. And the consumer can go to the regulator and
find out whether the broker has been in trouble or not.
Mr. GILLMOR. That would not be all States, sir.
Mr. DINHAM. Well it would be Texas, for sure. But, I think there
are 49 States that have registration or licensing at this point.
Mr. GILLMOR. Thank you. I yield the balance of my time to Mr.
McHenry.
Mr. MCHENRY. I’d like to thank the member for the time. To Mr.
Calhoun, the Center for Responsible Lending, what are the total
number of residential mortgage loans that you sold into the secondary market in 2006? You alone with the self-help credit union?
Mr. CALHOUN. I don’t have the exact number. I can tell you that
it is probably in the range of a billion dollars, but I would need to
get back with you with a specific dollar amount.
Mr. MCHENRY. I would certainly appreciate the total number,
the dollar-value, and what percentage to the marketplace. To both
CRL and to you, Mr. Silver, you both talk about subprime or
nonprime hurting the mortgage market and hurting homeownership in essence. Mr. Silver went so far to say the lending market
is broken.
I reference you both to the previous panel of all the regulators
that we had before here. I asked a simple question: Is the marketplace working? The only thing they said unanimously was yes, the
marketplace is working. The mortgage marketplace is working.
And so, it is wonderful rhetoric, but I think it is empty based on
facts. To you, Mr. Calhoun, you referenced that 2 million will lose
their homes. Over what period is that? Is that your prediction for
the next year?
Mr. CALHOUN. We did an exhaustive study: the first to look at
what happens to loans over the life, not just a snapshot.
Mr. MCHENRY. Sir, I have very little time.
Mr. CALHOUN. We looked at the loans originated since at least
1999 through 2006, and the projection is that over the life of those
loans, 2.2 million of them will result in the homeowner going bust.
Mr. MCHENRY. In roughly 30 years, over the period of a 30-year
mortgage, almost all of these would go into foreclosure. How many
would go into foreclosure this year? Do you have a number on that?
Mr. CALHOUN. I can give you numbers. Yes, sir. In my testimony—

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Mr. MCHENRY. The 2.4 million you reference in your study would
say that in essence 30 to 40 percent of subprime loans will go into
foreclosure, because there are 6 million subprime loans. That is an
astronomical sum not based on any historical data in the last 40
years of lending history in the United States. And so, it is rather
high and misleading before this committee.
Furthermore, you reference, so just to understand that, there are
6 million subprime loans in the marketplace right now. You are
saying that basically a third of them are going to going to foreclosure.
Mr. CALHOUN. That’s not correct. Those numbers are in error. If
you look at the data, we say that 19.4 percent; and you look at a
lot of the rating agencies are 30 percent.
Mr. MCHENRY. Which is twice as high than any historical high
and the losses in subprime, and the high was 10 percent. We are
under 10 percent and right now the subprime marketplace, I think
Mr. Robbins references what, 41⁄2 percent are facing foreclosure.
Mr. CALHOUN. Those are different numbers. The 10 percent, the
41⁄2 percent he refers to are snapshots. How many are in foreclosure right now? Our number is not how many are in foreclosure
at one particular time. It is if you look at what happens to that
loan over its life, which is typically a 3- to 4-year time period. What
percentage of those who foreclose and lose the home before the loan
is paid off or refinanced?
Chairwoman MALONEY. The gentleman’s time is up.
Mr. MCHENRY. Will you answer my questions for the record?
Chairwoman MALONEY. Certainly, the members can place their
questions into the record, and I call on Mel Watt from North Carolina.
Mr. WATT. Thank you, Madam Chairwoman. Mr. Dinham, I just
want to get a little clarification. There are obviously some problems
with the broker system, disproportionately generating issues that
need to be addressed. How do you define who a broker works for?
How does the industry say? If I come to you and ask you to get
me a loan, who are you working for?
Mr. DINHAM. Well, at this point we have contractual obligations
to the lenders. Otherwise, we sign a contract with them.
Mr. WATT. So, you are saying your first responsibility is to the
lender.
Mr. DINHAM. I am saying that we are a loaner store with products available to the public; and, in other words, we don’t. It’s like
going into another type of store. We are a mortgage store. We have
different products for the consumers to use.
Mr. WATT. Okay, well that’s fine. I guess I have misunderstood
because most brokers will tell you that they work for the borrower.
I mean, I am just telling you what my experience is. You are saying that your primary responsibility is to the lender.
Mr. DINHAM. Yes, sir, because I have a contractual obligation
with you. In Texas, we have a disclosure that we give to the borrower.
Mr. WATT. Where you have a contractual obligation to the borrower?
Mr. DINHAM. No, sir.
Mr. WATT. None?

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Mr. DINHAM. No, sir. I have a disclosure in which I tell him exactly what the relationship is that we are going to have together
at this point—that we are a contract person and not an agent.
Mr. WATT. So, if a broker in North Carolina, for example, that
Mr. Bachus used this morning had a mortgage brokerage company
that was placing loans had a construction company and then had
a mortgage brokerage company. And they put out a brochure that
said, ‘‘There are no sales people in this office. The people you work
with are working for you.’’ They put this out to the borrower. They
are working for you to secure the best possible deal on your behalf.
Then that would be a fraudulent, misleading, dishonest statement,
is that what you are saying?
Mr. DINHAM. I am just telling you, no. I am not going to say that,
because I can’t unequivocally say that. But I think that—
Mr. WATT. If they were a broker, and they put out a statement
to me as a borrower, saying that the people you work with are
working for you to secure the best possible deal on your behalf.
Would that be a misrepresentation?
Mr. DINHAM. Not if the statement was coming from me. No, sir,
it would not be a correct statement. I would like to draw on what
you brought up about North Carolina though, because there was an
article in the Charlotte Observer which was out, I think either on
the 17th—
Mr. WATT. Let’s let that speak for itself. I will by unanimous consent put the actual series of articles in the record. The articles will
speak for themselves. And, if you want to address the content of
the articles, I welcome you to do that.
Mr. DINHAM. Okay.
Mr. WATT. Let me just get one more question in to Mr. Calhoun.
We are operating now in a little bit of a different environment than
we were operating over the last couple of years when we started
this process of trying to produce a predatory lending bill that I
would liken somewhat to what went on at Enron, and a lot of people say we overreacted to the Enron situation. I think there was
some irrational exuberance in the lending and borrowing market
and some problems.
You said that there are a number of things that have come on
the market since the North Carolina law was introduced that were
really not addressed in the North Carolina law. Would you give us
a couple of examples of that and then follow that up with written
documentation of what you think needs to be added to the North
Carolina law if we were going to try to use the North Carolina law
as a Federal standard?
Mr. CALHOUN. Certainly, the primary development has been
what I would call the abandonment of traditional underwriting
standards. Ten years ago when we talked about predatory lending,
the one point of consensus was its so-called asset-based lending,
lending against the equity in the home without regard for whether
the borrower could actually pay the payments on the loan.
That was the essence of predatory lending is what we have seen
as the incremental steps. That’s what’s developed over the last 4
years and I think there are two important things here. One is that
it has been incremental, this payment shock that we have talked

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about today. They didn’t just start lending with these loans with
huge payment shocks. It got worse and worse each quarter.
And the dynamic that’s the real concern, when you step back to
the 30,000-foot level, is we have a situation.
Mr. WATT. Why don’t you address that in writing, because my
time has expired.
Chairwoman MALONEY. The gentleman’s time has expired. That
was an excellent question. The last question will go to Patrick
McHenry of North Carolina. And we are called for a vote and this
will conclude our hearing.
Mr. MCHENRY. This is a question for the whole panel, so, be prepared. It’s going to be very simple and short answers because we
don’t have much time.
Every three out of four loans in the foreclosure process do not
wind up in a foreclosure sale. In 2005, FMAC studied this issue.
It was estimated that the average cost of a single foreclosure for
the lender averages $58,000. Those are FMAC’s numbers.
Could you expand on why, actually, how about this. Very simple,
the whole panel will start from left to right here. Yes or no: Is it
bad for lenders to lend money to people who are not capable of paying it back? Yes or no, Mr. Calhoun?
Mr. CALHOUN. On an individual level, no. But it is profitable on
a macro level, and that’s what we have seen here. They’ll lose
money on an individual loan.
Mr. MCHENRY. Once more, I don’t have time for long-winded answers.
Mr. CALHOUN. That’s my answer that you heard.
Mr. MCHENRY. Which is ‘‘kind of.’’ Okay? Mr. Silver?
Mr. SILVER. You have to send it back to the lender without considering repayment ability. And, if I might, Representative—
Mr. MCHENRY. Yes, that is a good answer. Mr. Fishbein?
Mr. FISHBEIN. Look at the volume of loans handled by consumer
rescue funds and you see several examples of failure.
Mr. MCHENRY. Thank you. I don’t have time. Mr. Silver? Thank
you.
Mr. SILVER. Yes, on an individual basis I would agree with Mr.
Calhoun. However, changes in the market allow much higher foreclosure rates and still make profits for lenders than occurred in the
past.
Mr. MCHENRY. So, losing money is good? Number four, here.
Thank you. I appreciate your answer the most. All right, thank
you. Back to Mr. Calhoun. Do you have a lower cost of funds in
commercial mortgage subprime mortgage lenders?
Mr. CALHOUN. No, we get most of our funding through Wall
Street Repurchase Agreements.
Mr. MCHENRY. So, you don’t use community foundation grants or
anything like that?
Mr. CALHOUN. We received, as I believe you know, grants to set
up the original loan loss reserves for the loans. But, for example,
when we securitize loans we sell them on the market and the people who buy them don’t care about anything except the finances.
And that’s what they pay.
Mr. MCHENRY. The insurance policy for the loan loss is based on
grants that have been given to your organization?

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Mr. CALHOUN. In part, yes.
Mr. MCHENRY. So, yes. You have subsidized lending because you
are able to get money for free?
Mr. CALHOUN. It gave us start-up funds but our sustainability
has depended upon it being self-sustaining.
Mr. MCHENRY. Okay, thank you. Additionally, I want to thank
Mr. Pollock in particular for his one-page mortgage document. I
think that’s fantastic. I think that this is something the committee
should have hearings on and we should move forward on this. At
this point, I would like to yield my remaining time to Mr. Price of
Georgia.
Mr. PRICE. I thank my colleague from North Carolina for yielding. I appreciate the testimony of all of you presented. I think it
points out clearly that we need much greater financial literacy.
There appears to be some bipartisan agreement on that and hopefully we will be able to go forward. I am a little troubled by what
appears to be a relative disdain for willing lenders and willing borrowers. And I wonder what that says about our general sense
about our markets and about our sense of commerce right now in
our Nation.
Mr. Calhoun, I heard you say, you cited all sorts of examples
about the typical subprime loan and how it leads to troubling results in many areas, and you said that one-sixth of the market are
subprime loans. Yet, they comprise two-thirds of the foreclosures in
the market. And that implies that there’s an ideal number for each
of those. Do you have a sense about where that ideal is?
Mr. CALHOUN. No. I think what it reflects more is what one of
the members of the previous panels said—when you tease that
apart, those foreclosure rates vary dramatically depending upon
the loan features and that subprime loans that don’t have these
abusive features the built-in payment shock have less than half of
the foreclosure rate of the loans that do have those abusive features. That’s our big concern: get those features out and then let
the market decide what’s the appropriate balance.
Mr. PRICE. I appreciate that. I have about 30 seconds, I think.
I want to commend Mr. Pollock for your comment and perspective
that we are late in this cycle and whether or not the Federal Government action will result in anything good to the entire market,
I think, is an apt perspective.
And I would ask, and I am not going to have any time it doesn’t
look like, but I would ask each of you, and we’ll give this to you
in writing, whether or not you agree that we are late in this cycle
and whether or not you believe that Federal Government intervention at this point in this cycle can have any positive result.
Chairwoman MALONEY. The gentleman’s time has expired. The
Chair notes that some members 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 and to place the responses in the record.
I want to thank all of the panelists for your testimony today.
Mr. FISHBEIN. Chairwoman Maloney, if I may, I had asked if I
could have a letter that has been signed by 80 groups to the regulators inserted in the record?

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Chairwoman MALONEY. Yes.
The hearing is now adjourned. Thank you.
[Whereupon, at 1:45 p.m., the hearing was adjourned.]

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APPENDIX

March 27, 2007

(67)

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