[House Hearing, 109 Congress] [From the U.S. Government Publishing Office] HOME MORTGAGE DISCLOSURE ACT: NEWLY COLLECTED DATA AND WHAT IT MEANS ======================================================================= HEARING BEFORE THE SUBCOMMITTEE ON FINANCIAL INSTITUTIONS AND CONSUMER CREDIT OF THE COMMITTEE ON FINANCIAL SERVICES U.S. HOUSE OF REPRESENTATIVES ONE HUNDRED NINTH CONGRESS SECOND SESSION ---------- JUNE 13, 2006 ---------- Printed for the use of the Committee on Financial Services Serial No. 109-99 U.S. GOVERNMENT PRINTING OFFICE 31-528 PDF WASHINGTON : 2006 ---------------------------------------------------------------- For sale by Superintendent of Documents, U.S. Government Printing Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; DC area (202) 512-1800 Fax: (202) 512-2250. Mail: Stop SSOP, Washington, DC 20402-0001 HOUSE COMMITTEE ON FINANCIAL SERVICES MICHAEL G. OXLEY, Ohio, Chairman JAMES A. LEACH, Iowa BARNEY FRANK, Massachusetts RICHARD H. BAKER, Louisiana PAUL E. KANJORSKI, Pennsylvania DEBORAH PRYCE, Ohio MAXINE WATERS, California SPENCER BACHUS, Alabama CAROLYN B. MALONEY, New York MICHAEL N. CASTLE, Delaware LUIS V. GUTIERREZ, Illinois EDWARD R. ROYCE, California NYDIA M. VELAZQUEZ, New York FRANK D. LUCAS, Oklahoma MELVIN L. WATT, North Carolina ROBERT W. NEY, Ohio GARY L. ACKERMAN, New York SUE W. KELLY, New York, Vice Chair DARLENE HOOLEY, Oregon RON PAUL, Texas JULIA CARSON, Indiana PAUL E. GILLMOR, Ohio BRAD SHERMAN, California JIM RYUN, Kansas GREGORY W. MEEKS, New York STEVEN C. LaTOURETTE, Ohio BARBARA LEE, California DONALD A. MANZULLO, Illinois DENNIS MOORE, Kansas WALTER B. JONES, Jr., North MICHAEL E. CAPUANO, Massachusetts Carolina HAROLD E. FORD, Jr., Tennessee JUDY BIGGERT, Illinois RUBEN HINOJOSA, Texas CHRISTOPHER SHAYS, Connecticut JOSEPH CROWLEY, New York VITO FOSSELLA, New York WM. LACY CLAY, Missouri GARY G. MILLER, California STEVE ISRAEL, New York PATRICK J. TIBERI, Ohio CAROLYN McCARTHY, New York MARK R. KENNEDY, Minnesota JOE BACA, California TOM FEENEY, Florida JIM MATHESON, Utah JEB HENSARLING, Texas STEPHEN F. LYNCH, Massachusetts SCOTT GARRETT, New Jersey BRAD MILLER, North Carolina GINNY BROWN-WAITE, Florida DAVID SCOTT, Georgia J. GRESHAM BARRETT, South Carolina ARTUR DAVIS, Alabama KATHERINE HARRIS, Florida AL GREEN, Texas RICK RENZI, Arizona EMANUEL CLEAVER, Missouri JIM GERLACH, Pennsylvania MELISSA L. BEAN, Illinois STEVAN PEARCE, New Mexico DEBBIE WASSERMAN SCHULTZ, Florida RANDY NEUGEBAUER, Texas GWEN MOORE, Wisconsin, TOM PRICE, Georgia MICHAEL G. FITZPATRICK, BERNARD SANDERS, Vermont Pennsylvania GEOFF DAVIS, Kentucky PATRICK T. McHENRY, North Carolina CAMPBELL, JOHN, California Robert U. Foster, III, Staff Director Subcommittee on Financial Institutions and Consumer Credit SPENCER BACHUS, Alabama, Chairman WALTER B. JONES, Jr., North BERNARD SANDERS, Vermont Carolina, Vice Chairman CAROLYN B. MALONEY, New York RICHARD H. BAKER, Louisiana MELVIN L. WATT, North Carolina MICHAEL N. CASTLE, Delaware GARY L. ACKERMAN, New York EDWARD R. ROYCE, California BRAD SHERMAN, California FRANK D. LUCAS, Oklahoma GREGORY W. MEEKS, New York SUE W. KELLY, New York LUIS V. GUTIERREZ, Illinois RON PAUL, Texas DENNIS MOORE, Kansas PAUL E. GILLMOR, Ohio PAUL E. KANJORSKI, Pennsylvania JIM RYUN, Kansas MAXINE WATERS, California STEVEN C. LaTOURETTE, Ohio DARLENE HOOLEY, Oregon JUDY BIGGERT, Illinois JULIA CARSON, Indiana VITO FOSSELLA, New York HAROLD E. FORD, Jr., Tennessee GARY G. MILLER, California RUBEN HINOJOSA, Texas PATRICK J. TIBERI, Ohio JOSEPH CROWLEY, New York TOM FEENEY, Florida STEVE ISRAEL, New York JEB HENSARLING, Texas CAROLYN McCARTHY, New York SCOTT GARRETT, New Jersey JOE BACA, California GINNY BROWN-WAITE, Florida AL GREEN, Texas J. GRESHAM BARRETT, South Carolina GWEN MOORE, Wisconsin RICK RENZI, Arizona WM. LACY CLAY, Missouri STEVAN PEARCE, New Mexico JIM MATHESON, Utah RANDY NEUGEBAUER, Texas BARNEY FRANK, Massachusetts TOM PRICE, Georgia PATRICK T. McHENRY, North Carolina MICHAEL G. OXLEY, Ohio C O N T E N T S ---------- Page Hearing held on: June 13, 2006................................................ 1 Appendix: June 13, 2006................................................ 61 WITNESSES Tuesday, June 13, 2006 Bowdler, Janis, Housing Policy Analyst, National Council of La Raza........................................................... 39 Bradford, Calvin, President, Calvin Bradford Associates, Ltd., on behalf of the National Fair Housing Alliance................... 45 Duncan, Douglas G., Senior Vice President and Chief Economist, Research and Business Development, Mortgage Bankers Association 38 Ernst, Keith, Senior Policy Counsel, Center for Responsible Lending........................................................ 43 Himpler, Bill, Executive Vice President, Federal Affairs, American Financial Services Association........................ 41 Olson, Hon. Mark W., Board of Governors, Federal Reserve System.. 13 Staten, Prof. Michael E., Director, Credit Research Center, McDonough School of Business, Georgetown University............ 47 APPENDIX Prepared statements: Bachus, Hon. Spencer......................................... 62 Clay, Hon. Wm. Lacy.......................................... 65 Bowdler, Janis............................................... 90 Bradford, Calvin............................................. 110 Duncan, Douglas G............................................ 78 Ernst, Keith................................................. 101 Himpler, Bill................................................ 96 Olson, Hon. Mark W........................................... 66 Staten, Prof. Michael E...................................... 128 Additional Material Submitted for the Record Bachus, Hon. Spencer: Written statement submitted by Consumer Mortgage Coalition... 228 Watt, Hon. Melvin L.: Written statement submitted by ACORN......................... 139 Written statement submitted by Center for Responsible Lending 143 Written statement submitted by Consumer Federation of America (CFA)...................................................... 193 Written statement submitted by Fair Housing Center of Greater Boston..................................................... 262 Letter and 3 studies submitted by National Community Reinvestment Coalition (NCRC).............................. 279 Written statement submitted by National Training and Information Center (NTIC).................................. 445 Frank, Hon. Barney: Letter from U.S. Department of Housing and Urban Development (HUD)...................................................... 449 Letter from U.S. Department of Justice....................... 450 Letter from Comptroller of the Currency...................... 452 Letter from Office of Thrift Supervision, U.S. Department of the Treasury............................................... 455 Letter from Federal Deposit Insurance Corporation............ 457 Letter from National Credit Union Administration............. 458 Letter from Federal Deposit Insurance Corporation............ 457 Moore, Hon. Gwen: Viewpoints article by Gregory D. Squires..................... 459 HOME MORTGAGE DISCLOSURE ACT: NEWLY COLLECTED DATA AND WHAT IT MEANS ---------- Tuesday, June 13, 2006 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. Spencer Bachus [chairman of the subcommittee] presiding. Present: Representatives Bachus, Baker, Garrett of New Jersey, Pearce, Neugebauer, Price, McHenry, Maloney, Watt, Meeks, Waters, Ford, Baca, Green, Clay, Matheson, and Frank (Ex Officio). Also present: Representatives Davis of Alabama, and Lee. Chairman Bachus. Good morning. The committee will come to order. Today's hearing, which was requested by Ranking Members Frank and Sanders, Congresswomen Waters and Lee, and Congressman Watt, will focus on the recently implemented Federal Reserve Board regulation under the Home Mortgage Disclosure Act that requires mortgage lenders to collect, report, and make public new mortgage pricing data and what that data means for consumers and lenders. The possibility of racial discrimination is a serious issue that deserves our attention. I am hopeful that today's hearing will shed some light on this issue. Owning a home is part of the American dream, and all Americans should be treated fairly when they try to make that dream a reality. The Home Mortgage Disclosure Act was enacted by Congress in 1975 to provide the public with information to determine whether lenders are serving their communities to enhance enforcement of laws prohibiting discrimination in lending, and to provide private investors and public agencies with information to guide investments in housing. The Act, which was implemented by the Federal Reserve Board, requires most mortgage lenders located in metropolitan areas to collect data about their housing-related lending activity, report that data annually to the government, and make the data publicly available. In 2002, the Federal Reserve Board required additional information to be reported for its 2004 data collection in order to improve the quality, consistency, and utility of the data reported. Most importantly, lenders must now disclose pricing, which includes interest rates and fees for higher- priced loans. Other newly required information now being reported includes whether the loan is a first lien, a junior lien or unsecured, and whether it is secured by a manufactured home and if it is subject to the protections of HOEPA. However, it should be pointed out that the data does not include or take into consideration certain risk evaluation factors used by lenders in determining whether to make a loan and at what price. Specifically, the data does not include the borrower's asset level or credit score, the loan-to-value ratio of the property, the borrower's debt to income ratio, or the level of documentation submitted. Because of the limitations of the data, I, along with many members of the subcommittee, signed a letter requesting that the Federal Reserve examine more comprehensive data to assess the extent to which loan pricing is correlated with risk. With this enhanced information, the Federal Reserve and the Departments of Justice and HUD should be able to make a determination as to whether any disparity in loan pricing is based on discrimination or risk-based pricing. Today's hearing will consist of two panels. First, we will hear from Federal Reserve Board Governor Mark W. Olson. On the second panel, we will hear from Dr. Douglas G. Duncan, senior vice president and chief economist, research and business development for the Mortgage Bankers Association; Ms. Janis Bowdler, housing policy analyst, National Council of La Raza; Mr. Bill Himpler, executive vice president, federal affairs, American Financial Services Association; Mr. Keith Ernest, senior policy counsel, Center for Responsible Lending; Mr. Calvin Bradford, president, Calvin Bradford & Associates on behalf of the National Fair Housing Alliance; and Dr. Michael E. Staten, director, Credit Research Center, McDonough School of Business, Georgetown University. The reason for the second panel with six witnesses was to accommodate several members who had specific requests. I look forward to hearing from today's witnesses and thank them for taking time from their busy schedules to join us. In closing, I would like to thank Ranking Members Frank and Sanders and their staffs for working with us on this hearing. They are strongly committed to these issues, and I commend them for their efforts to ensure that lenders comply with fair lending laws and that discrimination does not occur in the marketplace. Violations of our fair lending laws should not be tolerated, and I look forward to working with them, with Congresswomen Waters and Lee, and Congressman Watt, in assuring that violations of our fair lending laws are exposed and violators brought to responsibility. I look forward to working with them and members of this subcommittee as we continue to examine predatory lending practices. The Chair now recognizes Mr. Watt for any opening statement he would like to make. Mr. Watt. Thank you, Mr. Chairman. Last week Representative Kanjorski asked me to substitute for him as the ranking member of the hearing because he was out of town, and today Representative Sanders asked me to substitute for him as the ranking member because he couldn't be here. I think that there is a concerted effort to bring up the minor league on our side, those of us who are in training either for ranking member positions or chairmanships, we hope. So here I am again substituting, and I appreciate the chairman convening the hearing at our request. I thank Ranking Member Frank and Representatives Sanders, Waters, and Lee for joining in the request, along with myself, that we have this hearing today. The Equal Credit Opportunity Act prohibits, ``any creditor to discriminate against any applicant with respect to any aspect of a credit transaction on the basis of race, color, religion, national origin, sex, or marital status or age.'' Title 8 of the Civil Rights Act, Fair Housing Act, as amended, prohibits discrimination in the sale, rental, and financing of dwellings and in other housing-related transactions based on race, color, national origin, religion, sex, familial status, including children under the age of 18 living with parents of legal custodians, pregnant women, and people securing custody of children under the age of 18, and handicap disability. The Federal Reserve uses HMDA data as a screening tool to identify disparities in mortgage lending that warrant closer scrutiny. Based on a review of 2004 HMDA data, the Federal Reserve reportedly identified about 200 lenders that demonstrated statistically significant disparities in mortgage lending. The Federal Reserve shared, on a confidential basis, the results of this analysis of lenders' 2004 HMDA data with other agencies that have supervisory or enforcement authority over these lenders for use in those agencies' supervisory or enforcement programs. On March 17, 2006, in addition to requesting this hearing, Mr. Chairman, Representative Frank wrote to HUD, DOJ, OCC, FDIC, OTS, and NCUA requesting information about these agencies' processes for assessing the lenders under their authority that the Federal Reserve had flagged as having demonstrated significantly significant disparities for compliance with fair housing laws. Let me just be clear, having given that framework. Ladies and gentlemen, this issue is not going to go away. Discrimination in lending has to stop. It has to stop for several reasons. Number one, because it is against the law. Number two, you can't look at us and say get equal education, get equal loan scores, credit scores, get equal in every aspect of your life, and then at the end of the day, make statistically disparate impact loans that are explainable only in racial terms. You factor out everything else. This has to stop. It has to stop because more than 70 percent of the assets in the African American community are tied up in residences, in equity in homes, and if we don't have that, we don't have anything. You can't point to stocks and bonds and mutual funds and retirement accounts; our equity is in our homes, and that is the only source of wealth in our communities. This has to stop, and we will continue to pursue it until it does stop. You can't look at us and say well, it is a burden to keep HMDA data when the data suggests that discrimination is continuing. You get your house in order on that front, then you can talk to us about stopping the burdensome aspects of these regulations. So there is a quid pro quo here. It has to stop. One-tenth of a point, a quarter point, a half a point means thousands and thousands of dollars over the life of a loan. And these disparities have to stop. I am talking to everybody in the audience, Mr. Chairman. They know who I am talking to. We have to stop this practice. Mr. Chairman, I would ask unanimous consent that since they are not represented here today, although they are represented indirectly, I suppose through other people, that the statements of Acorn, NCRC, and the National Training and Information Center, all be submitted for the record, and that we submit the statements that we have gotten so far in response from HUD, DOJ, OCC, FDIC, OTS, and NCUA because we will be pursuing those inquiries until this stops. I yield back. Chairman Bachus. Without objection, and hearing none, those statements will be in the record and become part of the hearing record. Ranking Member Frank, would you like to train for the chairman's job? Mr. Frank. Yes, I would. I want to begin by expressing the strongest possible support for what my colleague from North Carolina has just said. I am very proud of the good working relationships that we on the Democratic side have had with our friends in the financial services industry. We have had good relations with the regulators, but I am very disappointed with the response that we have seen to this HMDA data. I do recall, since I was here at the time, that the legislation that resulted in this data being made available was adopted over the strong objections of many in the industry. Our former colleague, Joe Kennedy, took the lead. Tough vote. It was actually defeated in this committee and then won on the Floor. We have a record that shows that African Americans and Hispanic people are less likely to get loans and will have to pay more for the loans that they do get. All I read from the regulators, frankly, and the financial services industry is well, there are good reasons for it. It is not racism; it can be explained here. I understand that there are qualifications and explanations that ought to be introduced in reacting to the data. The problem is what I read gives us the explanations without the reactions. I would have hoped that people would have said that this is a very bad situation, and we have to change it, as my friend from North Carolina said. Instead, the overwhelming tone that is it is not my fault, and that there is nothing you can do about it, and that none of my institutions are doing it. Race continues to be the most serious problem in America. We have just gotten an indication here that when it comes to a basic tenet of American capitalism, there is nothing remotely radical about this, when it comes to a basic tenet of American capitalism, there is significant discrimination, in fact, according to racial and ethnic lines. Now I don't believe that it is all racism, and I don't believe that none of it is. Anybody who tells me in America today, with our history, that racism and racial prejudice isn't a part of it is kidding herself, but not me. That just can't be the case. But I also acknowledge that there are factors other than simple racism or even sophisticated racism. But having denied that it is racism doesn't mean that we don't have a problem. Much of what I see here says look, it is not just racism, there are all these other problems. If there are, let's talk about how to solve them. Let's talk about what we do. It is unacceptable, frankly, the tone of the responses and testimony we have here. This kind of collective, ``Well, that is the way the world works,'' isn't acceptable. I will continue to work closely with people on the Financial Services Committee. I think the function that banks and lenders play is a critical one, but we cannot continue to ignore this racially disparate impact, and people need to do a much better job than they have in the testimony I have seen, even from the regulators. So this one is not going away. Now most of the regulators, we are told, are still studying this, because the Federal Reserve itself said that in some cases it would appear to be race. Most of the regulators say that they are still working on it. I would like to see what is happening. This has been out for a while now. We are not going to be out-waited on this. We will continue to return to this. So I really strongly urge my friends in the industry, please, take this more seriously as a problem that has to be alleviated than you have. We cannot continue in this country to pretend that race is not still a problem in many ways. When African Americans are significantly worse off when it comes to getting a loan to buy a home, we need to figure out exactly why that is and then try to deal with it. Simply saying, ``Well, it is not a racial problem, and that is the end of it,'' is, one, I think somewhat inaccurate, but, two, totally unacceptable. Thank you, Mr. Chairman. Chairman Bachus. Thank you, Mr. Frank. Mr. McHenry. Mr. McHenry. Thank you, Mr. Chairman. I certainly appreciate you holding this hearing and look forward to the testimony from our wonderful panel we have coming before us, two separate panels. The Home Mortgage Disclosure Act information that we are going to be discussing today is a very important finding by the Federal Reserve, and it is important that we, as a committee, consider all the factors related to the cost of a mortgage on individual borrowers--their credit rating, net worth, their personal debts, and the whole variety of issues that are associated with it. For a first-time home buyer, it is a daunting task to get lending. I think it is important for us to have a fair and balanced way of disclosure to individual borrowers but beyond that, to make sure that the lending industry is competitive, that free market principles reign, and that as a result of that, individual borrowers will benefit. The individuality of the borrower demands a wide array of choices in the mortgage lending marketplace. For the home mortgage lending market to evolve further, it must be free of over burdensome regulation. In the early 1990's, subprime mortgage lenders emerged because market demand was not being met by prime mortgage lenders. According to a study by a former member of the Federal Reserve Board of Governors, from 1994 to 2003, subprime lending went from $45 billion a year to over $330 billion a year, now making up one in 10 mortgages. In that period, almost 9 million Americans, more than half minorities, became first time home buyers, pushing the homeownership rate to an all time high of 69 percent across America. I think that is something we should be proud of as policymakers and something we should be proud of as Americans. It is clear that subprime lending has increased credit to individuals who previously hadn't been afforded the opportunity, given their credit rating, savings, or personal income. I look forward to the testimony from this panel and the questions from fellow committee members about the HMDA data and, as we review the findings, it is important that we acknowledge that the nonprime lending marketplace has given countless underserved Americans access to the dream of homeownership. As public policymakers, we have to be sure this is done free of discrimination in any way, shape, or form, and that it is justified based on all the factors that the borrower brings forward to the lender, including their credit rating, their personal wealth, their personal ownership of assets and their personal debt, and to ensure that the future competitiveness of loans, we must allow the open competitive market to thrive. As policymakers, I think it should be our intent to make sure that the free market system works, especially when it comes to homeownership. We want to make sure that first time home buyers are able to access the resources that they need to actually purchase a home. Thank you, Mr. Chairman, for hosting this hearing and I look forward to the testimony. Chairman Bachus. Thank you. The gentleman from New York is recognized. Mr. Meeks. Thank you, Mr. Chairman. I think what we just heard is part of what the problem is because this is not really a hearing on what the disinformation of what the HMDA data shows, not talking about subprime lending versus prime lending, it is not talking about the homeownership. African Americans definitely, like anyone else, want to own a home. They get it and they understand generally that it is the best and most important investment they can make in their lives and indeed as Mr. Watt indicated, it is their biggest investment. Probably one of the largest investments that most people, not only African Americans, but most people make in their lives would be in their home. And we preach and teach talking about the fact that we want them to buy a home because it is an appreciating asset, as opposed to a car. However, there still should be some equity in getting a loan. So if you happen to go to a subprime and you don't belong in a subprime, you should be told to go to a prime and/or if you are two individuals that have the exact same credit scores, have the exact same income, have the exact same background, and the only difference is the color of your skin, and so therefore, you pay more money than the other, there is something wrong with that and that cannot be tolerated. And this regulation with reference to HMDA, whatever it is that say that is burdensome, well, until it is burdensome on a whole group of people who have to pay thousands of extra dollars over the course of the mortgage simply based upon the color of their skin, it must change, as Mr. Watt said. It is not acceptable. You want to relieve the burden of having to go through the paperwork with reference to HMDA data? The best way to relieve the burden is to change and fix the problem so that individuals who have the same scores can get the same rate, and it is not, as reflected in here, based upon the color of your skin. Now I know some argue that maybe it is a financial literacy piece. Well, if that is what you are saying, then I would urge you to get more involved in educating individuals in regard to financial literacy. That helps relieve the burden. Then if we can show that we have things on a level playing field now, then we can talk about something else. But until we can show that the playing field is level for everybody, the burdens in the requirements of supplying the HMDA data, I know, for my part, will never, ever change. It is something that must happen, and simply to say I don't know how it happened, or I don't know why the data is what it is, is not acceptable. So those who may be in institutions who say look at our individual data, I would say, look at and talk to the others in the same association as you are, and say we are in this thing together and we have to figure out a fix if you don't want collectively to have the requirements of coming up with HMDA data. So this has to stop. This is, after all, 2006, and we would like to think that we have made, and we have made a lot of progress, but obviously, from the data that we have seen here, a lot has changed but there are a lot of other things that have not changed, have yet to change, and we have to be sure that it does begin to, otherwise we have to continue to stress this, and I think there will be other consequences down the road. Thank you, Mr. Chairman. Chairman Bachus. Thank you, Mr. Meeks. Mr. Baca. Mr. Baca. Thank you very much for having this hearing today, and I also want to thank Representative Mel Watt. Last week, I attended a hearing along with Representative Clay and others to discuss concerns regarding mortgage discriminations finding in a new report released by the Center for Responsible Lending. The report indicates that after controlling for risk factors, minorities were more than 30 percent likely to receive a higher rate than White borrowers. We have to ask ourselves why there is a disparity. That is a question we have to ask ourselves. The report has come out. Why is there a disparity? It appears that the Federal Reserve found that Latinos are 2.3 times more likely to receive higher cost loans than Whites. Why? We have to ask ourselves why. Blacks are 3.7 times more likely. Why? Is there a disparity in how those loans are distributed? These price disparities should concern everyone in this room because basically, what we all want, Black, White, Indian, American Indian, all of us, all we want is respect, equal treatment, and equality. We don't want to go back to say that there are violations of civil rights or discrimination. But we have to stop this disparity that exists today. The data shows that minorities are not getting equal treatment and are deliberately being steered into high cost subprime loans. Why? Because they are vulnerable, and don't have the education, they are easy prey. We have the marketers that are out there. It is like all of us, capital gives us asset. I know because I remember the very first time that my parents bought a home--we came from a large family of 15--having that home and having roots. But you also know that you have to provide for a family and so someone is preying and someone calls them and they say all right, here is an easy fix. You need a loan, you need capital, you have a mortgage, you have payments, you have other responsibilities, here is an opportunity to prey into a high subprime loan, an adjustable loan or whatever the case may be. These loans should be the last resort for all of us. While subprime loans have helped many families get into their first home, they are risky and high-priced and have foreclosure rates twice that of prime loans. Too many mortgage loans and brokers are taking advantage of the low income minority borrowers by placing them in high-risk mortgages which they cannot afford, and they know they can't afford them, but they put them right into it. It is like the old way that we used to have when this country was first founded, many of us minorities owned land, we didn't have stakes, and the White man came and all of a sudden developed new laws and said these are the laws in place right now so if you don't have papers we are taking over. It is just a different form right now. It being done. Some of the brokers are taking back their homes when individuals can't afford these homes. We are seeing many minority families being steered into nontraditional loans such as adjustable rate mortgages and interest only loans that carry risky terms, and that is what I was describing in terms of land claimers that we used to have. Well, it is a different form of land claimer that we have now. As interest rates are rising, their monthly payments are becoming too high and becoming vulnerable for foreclosure. We see the cost of living going up but the adjustable costs in terms of wages are not increasing. Many individuals can't afford a home. We have the largest growth, both minorities and others moving from L.A., Orange County, who are buying homes, and then all of a sudden, they are getting into these adjustable loans or high-risk loans that they are giving them and then they are foreclosing. Some reports indicate that as many as 1.2 million families may lose their homes to foreclose this year. That is frightening when someone is going to lose their roots, their homes that they have established. 1.2 million families may lose their homes this year, nearly 3 times the amount in 2005. These new products may be appropriate for some families, but for others the abuse has become a very serious problem. Hispanic families rely heavily on mortgage brokers, that is why it is important to have education literacy both in Spanish and English in the centers. The industry lacks the accountability to consumers and too many Latino families are falling through the cracks. Bad actors must be held accountable, and I say bad actors, and there are good actors out there. I want to state that, too, for the record. There are good actors, but there are a lot of bad actors as well. There should be a list of those bad actors to ensure that home buyers have equal access to fairly priced homes. I look forward to continuing to work with this committee and to look at developing legislation to address this issue. As Representative Mel Watt indicated, we have to stop this type of discrimination. All we want is equal respect, and equality for all of us. Thank you. Chairman Bachus. Thank you, Mr. Baca. Mr. Neugebauer. Mr. Neugebauer. Mr. Chairman, I yield my time to the distinguished chairman. Chairman Bachus. I thank you. Governor Olson, you have heard several opening statements, and normally we have limited them to 5 minutes but some have been longer than that. I think the reason for that is the importance of this subject. You are going to hear more opening statements before we start, because members feel very strongly about this issue. I think if there is anything that a member serving on the Financial Services Committee comes to realize, it is the value of homeownership. It is really economically and socially the pathway to wealth accumulation, to a store of wealth. It is a source of stability, not only for families, but also communities. You can look at a community, look at the percentage of homeownership, and you can--that is a predictor of crime rates, educational progress, and advancement. I said in my opening statement that homeownership is part of the American dream. It is the greatest investment that most families make, so it is absolutely important that we ensure and that we take steps to stop discrimination in mortgage lending. There will always be different treatment because there are different incomes, and different documentation on loans. There are always reasons for people to get different interest rates and to be charged different fees, but one of the reasons can never be racially motivated. We talk about fair play, Mr. Meeks talked about a level playing field. It is absolutely essential to our democracy if it is to function well and accord equal opportunity that we do not have racial discrimination in our mortgage lending. So this is, in fact, a very important hearing. I can't understate the effects that discrimination, the consequences of discrimination in mortgage lending. If there is significant racial discrimination, then it is of great significance and importance to all of us. With that said, our next speaker--I would like to ask unanimous consent that the gentleman from Alabama, Mr. Davis, who is not on this subcommittee, be allowed to make an opening statement. Hearing no objection, Mr. Davis. Mr. Davis. Thank you, Mr. Chairman, for welcoming me back to the subcommittee and giving me leave to make an opening statement and to ask questions. Mr. Baca asked the question, and a number of people have asked the question, of why these disparities exist and why they go on, and I agree with my good friend from New York, Mr. Meeks, and I agree with my friend from Massachusetts, Mr. Frank, that it is not just enough to throw up our hands and say, ``Oh, these things happen, but I didn't do it.'' It is off in the air somewhere. Let me take a stab at why I think part of this happens. What the mortgage industry does is fundamentally and qualitatively different from what the legal profession does and from what the medical profession does. I will tell you what I mean when I say that. I am a lawyer. I have had that license for 13 years now. When I was practicing law and a client came to see me I had an obligation to give that client the best representation I could provide. I didn't get to say if you pay me ``X'' amount of money, I will give you this amount of representation, but if you pay me ``X'' amount of money, I will give you this amount of representation. Once you sign the contract, you better give that person the best of your intelligence about his or her case. Those of us who have been to see doctors, we understand that once you walk in and the doctor takes on that case, you don't get certain treatment based on whether you are a Medicare patient or Medicaid patient. You get the best treatment that can be provided by that doctor. I would submit that is not the case when it comes to someone who is engaging in a mortgage transaction. You don't get the best service you can possibly get, you get the service that is in the interest of the broker, you get the service that is in the interest of the bank making the loan. And think of what that would mean if a lawyer, Mr. Olson, provided advice to clients based on what was in his or her best interest financially. Think of what it would mean if the doctor said I will encourage you to do whatever would get my Medicare billing rates to the highest level. We call that fraud. That is the root of the problem, in my opinion. There has to be an ethic in this industry that is frankly as good as what doctors and lawyers give out. We are not the most noble people in the world and we still manage it. There has to be an ethic that says that when you come in here for a transaction, we are going to give you the best information we can and the best advice that we can. We owe that to you as part of our fiduciary relationship. That ought to be the written ethic in the profession, that ought to be something that we try to see if we can write into law, but more than writing in law, it has to be written into practice. Then I want to make this other point. What is amazing to me, I remember when had a hearing in this very room, Mr. Olson, and there was testimony from, I think, someone who was president of the Mortgage Bankers or one of the groups and I asked the question, do we think that this disparity in subprime lending, do we think it is based purely on market-based factors, and the chairman of the Mortgage Bankers said no, it is not. Then other people from the industry and other various lobbyists said no, it is not. Can you imagine, Mr. Chairman, if the Speaker of the House were to make a statement tomorrow that yes, some hiring in the House of Representatives is based on race, or if the Chairman of the Joint Chiefs were to say some promotions in the military are based on race, I think we would worry about that. We haven't had that kind of outcry over those kinds of concessions from the industry, and it ought to move us. We have a large number of people here today, and that is great to have that many people, but I am reminded as I conclude today that when Senator Robert Kennedy was being laid to rest, Larry O'Brien, who became NBA Commissioner, has been Postmaster General, run Bobby Kennedy's political operation, and he made the comment what wonderful crowds. And then someone on the train said yes, but what are they good for. I close by saying, I see all these people from all sectors of this argument who are here today and a higher than average number of members here, but what good is it if we don't get as worried and concerned about the industry coming into this room and admitting part of the problem is race and not coming forward with steps to deal with it, solutions. This has to move us to action. If it doesn't, those of you in the industry, I make this point to you, and I make it as a friendly statement, the distrust you breed will cost you money. The distrust you breed will cost you customers. So we all have a stake in more transparency and accountability here, and this ought to be the beginning of a process and it ought to produce results before we leave here for recess in August. Thank you, Mr. Chairman. Chairman Bachus. Thank you, Mr. Davis. Ms. Lee. Ms. Lee was one of the members who actually requested this hearing. We welcome your opening statement. Ms. Lee. Thank you, Mr. Chairman, I will try to be very brief, but I want to thank you and our ranking member for this hearing, and also just associate myself with probably all of the remarks that have been made already, but add to that that it is very clear to me that the American dream is becoming a nightmare for so many Americans and in California, for example, and I need to ask this question in advance of the testimony, because I had been working with Mr. Greenspan on the CRA ratings. For example, the financial institutions, the majority of them in California, the majority receive outstanding ``A'' grading scores as it relates to CRA ratings, when I looked at the mortgage lending data as it relates to African Americans and Latinos, they were, like, between 1 and 4 percent of mortgage lending. For the life of me, I never could, and Mr. Greenspan could never explain why an institution could get an outstanding rating, and yet be so dismal in their mortgage lending to African Americans and Latinos. So I hope that will be addressed at some point in this hearing. Finally, let me just say, oftentimes, we are accused of playing the race card. Well, I think this data, this information really is an example though of when some of us talk about institutional racism, how it has been institutionalized and how, of course, people of color, communities of color end up on the losing end. I think when you look at the subprime lending, and I am looking at Mr. Olson's--a couple of statements that you made on page 9 of your testimony, indicating that some of the segmentation of the market by race and ethnicity may reflect objective differences in borrowers' preferences or differences from credit risk indicators. I think the majority of borrowers in our country, regardless of their race or ethnicity, want to be treated fairly; do not want to be victim to predatory lending; want to know what they are getting into; and want to make sure that their loans are going to be loans that allow them to realize the American dream in terms of acquiring the equity that they need or they want, or that they deserve so they can send their kids to college, start a small business or whatever. But when we have such a large percentage of minorities in the subprime market, it begs the question in terms of just the advances we have made in racial discrimination and institutional racism in our country. So thank you, Mr. Chairman, for this hearing. I look forward to the testimony. Chairman Bachus. I thank the gentlelady from California. The gentleman from Missouri, Mr. Clay, I recognize you for your opening statement. Mr. Clay. The statement is very brief. Good morning to all and thank you for holding this hearing, Mr. Chairman. The Home Mortgage Disclosure Act is an important tool for my district and for most districts that are in metropolitan areas. The data reported under HMDA includes information about denied home loan application, race, sex, and income of the borrower. Additionally, lenders have to report all first mortgages priced 3 percentage points above Treasury yield and all secondary mortgages 5 percentage points over Treasury yield. We need this tool in my district to combat predatory lending, discrimination in lending, and many other ills associated with obtaining affordable housing. I was disturbed when proposals were made to eliminate the requirement that intermediate small banks collect and disseminate CRA data on small business, small firms, and community development lending. The elimination of this data will eliminate the ability by which communities themselves measure whether the bank is meeting the small business needs of the community. There are no adequate substitutes for this data. I understand that financial institutions have concerns about the cost and efforts required to produce and disseminate the data, however, the value of the data to our districts far outweigh the cost associated with this collection. I am eager to hear what our panelists have to say on this issue, and I yield back the balance of my time, Mr. Chairman. Chairman Bachus. Thank you, Mr. Clay. That concludes the opening statements from the committee members and at this time, we will recognize the Honorable Mark Olson, Board of Governors, Federal Reserve System. Governor Olson, welcome to the committee. STATEMENT OF HON. MARK W. OLSON, BOARD OF GOVERNORS, FEDERAL RESERVE SYSTEM Mr. Olson. Thank you very much, Chairman Bachus, and members of the committee. I have an opening statement, which I would ask to be submitted for the record but, Mr. Chairman, you and others have hit the highlights of what I have to say regarding the intent of HMDA, the concern about racial discrimination, and the evolution, if you will, of some of HMDA, so I will just make a couple of points that were brought up in the questions. In your opening statement, you talked about the importance of eliminating racial discrimination. What I heard from so many of the members was the degree of frustration that we are finding because of the persistence that we find in the studies. It is a concern that we share. Congressman Watt, in your testimony or your discussion, you identified the laws, such as the Fair Housing Act, that really are the core of fair lending, and I would remind the committee that those laws have been on the books in some cases for 40 years, and in some cases for 30 years. We have been asking banks to be in compliance with those laws for all those periods of time. When the HMDA information was first disclosed, and Congressman Frank pointed out, initially it was by an amendment to allow for that information to be made public. If we would have had the discussion 15 years ago, not quite 15, 13 years ago after the first reports had come out, I suspect that your concern would have been about the approval-denial ratio because that was our understanding of the racial component in lending a number of years ago. The dynamic changes that have taken place in the mortgage market over that period of time have shifted our concern. We still are concerned about approval-denial. But to a greater extent, we are focused on the difference in pricing and to the extent that those difference in prices are, in fact, race- based, and that is, of course, disparate treatment and is the violation of fair lending standards. We continue to examine institutions for that purpose. Now we are in the process of also holding hearings around the country on the HOEPA legislation which is also focusing in a significant way on the changes that we are seeing in the marketplace. Several of you have alluded to the fact that in the marketplace there is a tremendous amount of marketing activity and a certain amount, perhaps, of steering activity that is going on and the great concern is that equally situated borrowers are not receiving equal treatment, which is the essence of fair lending. When we, as the Federal Reserve, look at the HMDA data, that is not our first look at the lending activity of these institutions. We examine all of these institutions on a routine basis. In some of those institutions, we are physically in the institution continuously, and have an opportunity to continuously evaluate their compliance with fair lending laws. Let me move forward to 2004. It was an initiation of the Federal Reserve that we asked for pricing data, that is the pricing data to be publicly released because the pricing data is the point now where we are most likely to find the opportunities for disparate treatment. But that is not the first look that we, the Federal Reserve or the other regulators, have had with respect to that issue. We have been aware of that shift in the marketplace or that growing change in the marketplace. As Congressman McHenry suggested, the subprime markets has grown rapidly over the last number of years, and the good part of that is there is enormous societal value in providing additional mortgage activity to a wider range of borrowers. The downside of that is that there are more opportunities for mischief. So when we go in and look at an institution and we have been examining for those factors for many years, we start by looking at the extent to which their policies and procedures and their risk management tools examine for possible disparate treatment or fair lending compliance. We then look at, for example, the manner in which they monitor those who are buying loans on behalf of the institution from brokers, the extent to which they are evaluating these brokers, we look at the extent to which individual borrowers with individual characteristics are given the same treatment. We have had a chance to look at the initial HMDA data in the aggregate, and we are in the process of now looking at it on an institution-by-institution basis. Of the 200 institutions, as we have pointed out, that were identified where there was some statistical disparity, somewhere between 30 and 40, perhaps 35 of them are Federal Reserve regulated institutions. In each of those instances, we have initiated discussions, and in some cases, have been deep into looking at and evaluating the extent to which that additional information gives us a different prism to look at the manner in which they are in compliance. Mr. Chairman, we support the efforts of this committee, we support certainly the efforts of Congress to address this important subject, and I would be happy to answer any questions. [The prepared statement of Governor Olson can be found on page 66 of the appendix.] Chairman Bachus. Governor Olson, I very much appreciate your testimony. I thought it was very to the point and valuable to our committee as we explore this. Let me ask you this, the Congress is presently considering the Voting Rights Act. The 15th amendment was passed in 1870, giving all of our citizens the right to vote, at least all except women, who obtained that right later. But it wasn't until the Voting Rights Act that really most of our citizens, they had the constitutional right to vote, many of them were denied that right, many votes weren't counted until we had a Voting Rights Act some hundred years later. We have all sorts of laws on the books which prohibit racial discrimination in lending practices, and yet, in your knowledge at least, there is an appearance that discrimination may go on. Is there something else we need? I mean, do we need further legislation; do we need to gather more data? I said in my opening statement that at least with high cost loans, since 2002, when the Federal Reserve started, I think it was gathered in 2004 under HMDA the lenders had to first disclose. But are there other things that we--do we need to gather other information, do we need to gather what the borrowers' asset level was and their credit scores, the loan- to-bank ratio of the property, the borrowers' debt to income ratio or the level of documentation submitted. Is there something else we need to do, or the Federal Reserve needs to do? Mr. Olson. Let me separate the issue, because there are two components to it. The pricing data is not difficult for the regulators to get at the pricing data, because we go in and examine an institution's entire portfolio, and examiners, all of the bank examiners from all agencies and all of the examiners of mortgage lenders, have had the ability to look at that data and examine that data very carefully. We have always had that ability. Only recently, though, has that been included, as you pointed out, in the public release of HMDA data. Now that helps identify another issue that perhaps--but not fully--HMDA data alone does not give you a complete picture of the extent to which there might be discrimination in the lending process. Incrementally, if you were to add to that, it probably would not also lead you to that final fundamental determination of discrimination because discrimination now is usually not overt, to the extent that it exists and it clearly does still exist, it is very subtle. So you have to look very carefully at all the data that you have available. Also across institutions it is very difficult to make comparisons. For example, if you were to add a credit score, different organizations use different kinds of scores and, increasingly, especially the largest institutions are now building their own scoring models. So if you were to compare across institutions, it is very difficult to make that determination. I would say, however, that we are in the process now in the hearings that are going on, the HOEPA hearings--we have had two. We have two more scheduled, one at the end of this week, and one later on. We are discovering a great deal more about the changing marketplace. Incidentally, the second panel that you have coming on next, many of those people have been part of the hearings that we have had. They have provided excellent additional information as to the changes that have taken places. My suggestion would be, respectfully, that before Congress would consider additional legislation, we understand fully the extent to which we know the changes that are taking place in the market and how best to address them. Chairman Bachus. Thank you. Mr. Watt. Mr. Watt. Thank you, Mr. Chairman. Thank you, Mr. Olson. Chairman Bachus. Actually--I'm sorry. It should be Mr. Frank. I apologize. Mr. Frank. I thank the gentleman, because we do have the HUD Transportation Appropriations, so I am going to have to leave. Mr. Olson, you say we should not legislate until we get all that done. When do you expect we will have it? Mr. Olson. Well, there are no destinations, there are only journeys. Mr. Frank. Then that is the problem. Mr. Olson. Our hearings will be complete by July. We will have a chance to look at this initial round of disclosures. This will be ongoing. Mr. Frank. But if it is ongoing--excuse me. No, I'm sorry-- do not legislate until we have the information. But if there is no destination, it is ongoing, and we will never get there. You heard this from my colleagues. There is a crisis here. We do very well in a lot of areas, but there is a crisis. You have significant numbers of Americans who think they are getting frozen out of the system. So we cannot wait that long. I will be honest with you. I do not see, on the part of the financial services industry or the regulators, the kind of urgency that many of us think that this situation requires. If the HMDA data alone isn't enough, then tell me what we need to do to expand the data and collect it and analyze it. The Federal Reserve is very good at all kinds of very sophisticated analysis. Too much of this testimony is, we do not have enough, we need more. This is an urgent issue. We can have-- Go ahead. Mr. Olson. No, go ahead. Mr. Frank. I do have to address--several of us talked about it. I was struck by it. I know Ms. Lee mentioned it. On page 9, you say, ``Black and Hispanic borrowers are more likely to obtain mortgage loans from institutions that tend to specialize in subprime lending. Now, at least part of this segmentation by race and ethnicity may reflect objective differences in borrowers' preferences.'' Would you tell me what it is of the psyche of Black and Hispanic people that they would prefer to go to a subprime lender rather than someone else? I know you say there are other factors, but what are the factors? Mr. Olson. I suspect it reflects what we see in the marketplace now, which is push marketing. Mr. Frank. Excuse me. You do talk about--you say steering, etc. There are other factors. You did not say this is the only factor; I acknowledge that. But you said part of it is that the Blacks and Hispanics prefer to go to subprime lenders. Do you really want to stick with that? I mean, you did say it may go from being steered and there are different levels of literacy, but you said a preference for subprime lenders. What kind of people would prefer a subprime lender to a prime lender? Mr. Olson. It may not have been as artfully worded as it might have been, but the point that we are making is what we do see is that there do seem to be a larger number of African Americans in that community going to the subprime lenders. Mr. Frank. I understand that. That is not the problem. Do not blame the victim. That is exactly the problem. I know, let's go to the subprime lender. To impute that as a preference to the victims, frankly, makes people--the insensitivity sign goes up. Please, do not say that again. Mr. Olson. If I were wearing my sociological hat, I probably would have worded it differently. I apologize. But what we are doing is we are reflecting and describing the preferences that are demonstrated not simply because they like them better but the preferences that are demonstrated by the number of applications. Mr. Frank. But there are many reasons why, if you are an African American, you would wind up there. Why dig up their own preferences? Mr. Olson. That is a better way to say it. Mr. Frank. But, to be honest, that is what makes people nervous. This is victim blaming and stereotyping, to be honest. I know you do not believe this, but the fact that this gets into the testimony--you know, you guys are pretty good at vetting over there. When this slips through, that is what makes us nervous. Let me say finally this--yes, help us with the data, but I do want to say to yourself and to all the other regulators, we have data that shows significant disparities. We have the Feds saying that while there are non-subjectively racist reasons for many--not most--of the disparities, there is some prima facie reason to believe that there is racism. We live in America, where racism has been the curse of this country, and while we are making progress we have not totally eradicated it. If at the end of the analysis of this factual data which shows a substantial disparity nobody is penalized for engaging in racially discriminatory behavior, then the loss of confidence on the part of many of us is going to be overpowering. Mr. Olson. Congressman, we did not expand the data collection to pricing data to cover up the issue or to any way diminish the issue. We expanded the collection of data and the public distribution, or the public release of that information in order to shed greater light because we agree with you. Now we knew that that would invite analysis, and we knew that it would perhaps invite criticism. Now even your discussion that you just gave, you were giving the data in the aggregate. You did not go--as did our initial report, which discussed the differences when you get down to an institution- by-institution basis which significantly eliminates or accounts-- Mr. Frank. I appreciate that, and I acknowledge that many of the disparities can be explained in other ways. But by the Federal Reserve's own analysis of a number of institutions, it is hard to think of an explanation other than race. And I am saying this: If after we get this, in the end of the process, nobody found anybody guilty of anything, I am going to be very skeptical. Mr. Olson. So will I, frankly. And I think as we have a number of groups, we have a number of interested parties all looking at the same data. We have the lenders. We have the regulators. We have a number of community groups. Independently, we have some law enforcement agencies. I would agree with your conclusion. Mr. Frank. Thank you. Thank you for the courtesy, Mr. Chairman. Chairman Bachus. Mr. McHenry. Mr. McHenry. Thank you, Mr. Chairman. I certainly appreciate it. To the ranking Democrat's question, who would have a preference for a subprime loan in the marketplace, there are no-doc loans--no-documentation loans that you can get quickly. And being involved in real estate investment, it is a good tool to have so you can close quickly on a property and not have to get a stack of paperwork to get the loan. Now you will be charged a higher rate and additional fees to get it, but it is a wonderful thing to access that capital so you can purchase a property for investment purpose, and that is something that I have seen utilized a number of times. But, thank you, Mr. Olson, for being here today. You said in your testimony that certainly the HMDA data, as it is presented, the HMDA data tells a great deal about lending patterns, but they do not tell the entire story. What would you have say could be the rest of the story? Mr. Olson. Well, there are a number of factors. The HMDA data--the publicly released HMDA data tells part of the story. If you are looking at all of the factors that go into the mortgage decision, either the approval or the pricing, you take into consideration a number of factors. You just hit on a major one, which is the choice of products. There is a wider range on the choice of products depending whether somebody wants a low-doc or a no-doc or, for example, if the product is what we have always called a conforming product, which I am sure you are aware of which is a Fannie Mae- and Freddie Mac-approved product. Each of those contain different levels of documentation, different levels of cost, and, therefore, there are different levels of pricing involved. Also, the credit risks or the loan-to-value ratio of an institution. Those are some of the notable characteristics impacting pricing. However, the people who are involved in fair lending or in the fair lending area tell me you need to look at roughly 30 different data points in order to really determine if there is, in fact, a disparity in treatment among borrowers. Mr. McHenry. How many data points have you collected in this HMDA data? Mr. Olson. I think eight or nine. It is a relatively small number, and they are not necessarily the key ones. But the key ones are very sensitive--there are some privacy implications for having any of those data released to the public. Mr. McHenry. But perhaps you have 25 percent of the data, maybe, for us to get a fair read on. Mr. Olson. Yes, but that is done on a weighted basis. But, yes, roughly. Mr. McHenry. So it would be perhaps unfair for us to jump to conclusions or to draw significant conclusions from the HMDA data? Mr. Olson. HMDA data are very valuable, but, as we have stated, they are not definitive. Mr. McHenry. So what would be one of the definitive ways to determine whether there is discrimination? Would it be the credit risk associated in matching that with sex, age, or race? Mr. Olson. As you look at an institution--as you look at an institution and within that institution, if you look within the institution either at the various channels or at the product mix, the question would be are equally situated borrowers treated equally? What we have described and some of what we have done, even with HMDA data, is to develop a systematic method of comparing borrowers called matched pair analysis. They might take an African American borrower, for example, vis- a-vis a White borrower or an Hispanic borrower versus a White borrower and find borrowers with identical characteristics and then determine the extent to which they are treated similarly. You need to get down to that sort of a fine comparative evaluation before you can make a determination as to whether or not there is disparate treatment. Mr. McHenry. As policymakers on this committee, what conclusions can we draw from the HMDA data as presented? Mr. Olson. It is fair to draw a conclusion that there are differences among the treatment of minority borrowers and White borrowers that need explanation and that we ought to continually look at trying to determine why those differences exist. Mr. McHenry. Thank you. Chairman Bachus. Thank you, Mr. McHenry. Mr. Watt. Mr. Watt. Thank you, Mr. Chairman. Mr. Olson, let me start by thanking you for some stuff. We do not want to kill the messenger, and I think it is significant and something that the Federal Reserve is to be commended for, that you have expanded the information from just an approve-deny decision to pricing data, analysis, collecting information that allows us to analyze pricing data, not just a decision about whether somebody gets a loan or does not get a loan. Because if there is disparity in treatment, if there is discrimination--and I distinguish between those two--it is getting more sophisticated. We know that. I applaud the distribution of the HMDA data privately to the other regulators so that they can get right to work on doing what their authority gives them the right to do as regulators. So nothing we say here should ignore those two applauses that I am giving you. You say there are 30 data points or somewhere in that range for determining disparate treatment. I do not think you mean that disparate treatment, you have already found anything. There may be 30 data points for determining whether it is discrimination or whether there is discrimination, but I think we already have the gross information about disparate treatment. Am I wrong about that? I do not want to get into a semantic session here. Mr. Olson. You are on a very important point. And I think that in the evolution of our understanding of what constitutes discrimination. Early on in the process thought of discrimination as being overt discrimination. We lend to Whites. We do not lend to Blacks. That was what discrimination was described as years ago. I think over the course of a number of years, we have learned that discrimination can also include either disparate impact or disparate treatment-- Mr. Watt. Disparate impact. Mr. Olson. --and the differences are significant. Because disparate impact and disparate treatment, especially disparate treatment, takes into consideration a whole wide range of factors, and you cannot have evaluated the entire impact--the entire universe without looking at that impact. Mr. Watt. But let me be clear, Mr. Olson--and I hope I am trying to be fair and clear here--that race is not one of those 30 data points. Mr. Olson. It absolutely is. Especially if you are using regression, for example, you control for all of the factors and you determine what is left that is unexplainable, and if race is one of the factors that is unexplainable, then you have a real problem. So indeed it is, if you are looking at it, because in the context that we were talking about of disparate treatment-- Mr. Watt. Maybe I should ask the question in a slightly different way. Surely race--if race is the only data point standing at the end of the day, you have eliminated all of the other data points as explanations, then we have a problem. Mr. Olson. Exactly. And where institutions have historically run into difficulty in the past-- Mr. Watt. I am going to run out of time here. Mr. Olson. I will not take your time. I would be happy to come back, if you would like, and we can talk about this. Mr. Watt. I want to go beyond the HMDA data, which you said touches on eight or nine of those data points, and ask you if you have had an opportunity to review the report of the Center for Responsible Lending? Have you had that opportunity? Mr. Olson. I have looked at it briefly, yes. Mr. Watt. How many more of those 30 data points did they pick up in their analysis? Mr. Olson. That I don't remember right off the top of my head. Mr. Watt. But significantly more, wouldn't you say, than the eight or nine that the Federal Reserve picked up, isn't that right? Mr. Olson. Not that the Federal Reserve picked up, that is released in the HMDA data. Mr. Watt. In the HMDA data that the Federal Reserve released, right. Mr. Olson. I believe you are correct. Mr. Watt. So if there are up to 20 out of those 29 maybe and race--they factored out, for a certain population, credit scores and geographic factors and other factors that are data points, and race still is standing as a significant factor, or appears to be, I take it that is troubling to you. Mr. Olson. Congressman, I believe that I am correct and--I am not sure I am correct--they looked at aggregate data. Mr. Watt. No, as I understand what they did was they took the actual data based on actual loans and got down to that level and analyzed those loans, that you analyzed on an aggregate basis, on a specific basis and still found that race was a factor. Mr. Olson. You hit on the real key fact. You need to look at it on an institution-by-institution basis. In the initial look that we did, even of the HMDA data, when you look at it on an institution-by-institution basis, that explains a lot of that differential but not all of it. There still is a persistent difference that remains. But as we look at institutions, as we go in and examine those institutions, we can examine them very carefully on all of those bases. Mr. Watt. And you are going to do that under the 30 to 40 that is under the Fed's jurisdiction? Mr. Olson. We will continue to do it. Mr. Watt. Okay, and other regulators will do it, you hope? Mr. Olson. They do, trust me. They do the examinations as well. Mr. Watt. Thank you, Mr. Chairman. Chairman Bachus. Thank you, Mr. Watt. At this time, we are going to recess. There are votes on the Floor. Governor Olson, there are other members who do want the opportunity to ask you questions. Mr. Olson. Then I will stay. Chairman Bachus. We appreciate it. I commend you for your testimony thus far. The hearing is recessed subject to votes on the Floor of the House. At the end of the last vote in this series, we will reconvene here. [Recess] Chairman Bachus. The Subcommittee on Financial Institutions and Consumer Credit will come to order. At this time, Governor Olson, we are going to allow additional time for members to ask questions. At this time, I will recognize Mr. Pearce for any questions he may have. Mr. Pearce. Thank you, Mr. Chairman, and thank you, Mr. Olson. I was a little surprised to see you walk away from your comments that some borrowers might prefer. We find examples of that every day. My mom bought a higher-priced car for her whole life. She chose a higher price because she was more comfortable at the dealership. People choose higher-priced TV's. The truth is that many lenders, many subprime lenders hire people who will talk the language, that will make them feel more comfortable, compared to going in a bank and seeing the rigors there. So I think you had it adequately stated, and I saw you lose your nerve. I do not really need a comment. I am just making an observation that I think, in truth, there are times when people have preferences even to the point of damage. People willingly purchase narcotics knowing that it is not the best thing for them. So I think there is an element of personal responsibility. I do not say that there are not problems and even deep problems. How long have you been with the Federal Reserve, Mr. Olson? Mr. Olson. I have been a Governor for four-and-a-half years. Mr. Pearce. Four-and-a-half years. And how long have you been with the Reserve overall? Mr. Olson. That is my entire experience with the Fed. I have been in banking and the banking consulting business for 35 years. Mr. Pearce. Where I am headed is I see that on page 7 you conclude that the HMDA data lacks information and that you cannot use that to observe racial or ethic differences in the price of loans as being the result of unlawful discrimination. If you cannot determine that from HMDA loans, have you submitted a request for the measurement parameters that would allow you to ascertain that? Just, yes, you have submitted the request or, no, you have not. Mr. Olson. The distinction--the point we are making is that you do not make that determination based on the information that is-- Mr. Pearce. I understand that. Have you asked for the full and complete information that will allow you to get to the point that we have been discussing? Mr. Olson. We get the full and complete information when we go into the institution. Mr. Pearce. Your statement says HMDA does not allow you to arrive at the conclusion of whether or not it is unlawful discrimination. Is that not the statement on page 7? Mr. Olson. That is the statement. Mr. Pearce. Is that how you then asked for enough additional data that would allow you to ascertain that? Mr. Olson. I am trying to answer the question. The answer is we have all the access we need to that information, but it is not information that is in the public domain. HMDA data gives us one prism with which we look at that organization, but on a constant basis, on a consistent regular basis, we go into an institution; we look at their entire loan portfolio. Mr. Pearce. So the fact that it is not made available to the public domain does not stop you from regulating it, does it? Mr. Olson. That is correct. Mr. Pearce. How many instances of enforcement have you had in the last four-and-a-half years that you know of where you have actually gone in and given somebody a whack for discriminating racially? Mr. Olson. In terms of the referrals to the Justice Department, we have had 35 over the last decade. Now how many of those have been in the last four-and-a-half years I could not tell you. Mr. Pearce. Thirty-five in the last decade of approximately how many investigations? How many banks have you looked at in 10 years? Mr. Olson. Nine hundred banks that we regulate, so that we would have reason to examine on a frequent basis. Mr. Pearce. Now then when I listen to your testimony, not your written testimony but your spoken testimony, I hear that you share the concerns that we share, that there are laws on the books for 30 years, that the HMDA was an amendment that Mr. Meeks described, additional thousands paid by minorities. Yet if the solution is within your reach, if you have all the data you need to determine if people are discriminating and steering towards, I just do not understand why that--your presentation-- your verbal presentation gave the appearance that you are kind of in concert with us, that you agreed with us but you are unable to do anything about it. But yet I feel through your discussion you have the capability to do something about it, and it is confusing. I will let you answer that. I see my time has expired. It is disorienting to hear you agreeing with all the testimony, which is fine, but then the role of the governors is regulatory and you have the capability to do something, but that is not in the tone and tenor that came across in your verbal presentation. Thank you, Mr. Chairman. Mr. Olson. Then let me try once more. Of the roughly 9,000 institutions that provide HMDA data-- 9,000 institutions have provided HMDA data after we have started asking for public disclosure of the pricing data. Of those 9,000, in roughly 200 we found statistical disparity, and this statistical disparity could be in one of two forms, either in the numbers of borrowers--the relative numbers of borrowers who have received high price loans or in the interest disparity on the APR. So that is 200 out of 9,000. Of those 200, somewhere between 30 and 40 are institutions that we regulate. And of those 30 to 40, some of them may be multiple HMDA providers within the same organizations. Those are institutions that we have examined for many, many years for fair lending, and that we have required to disclose to us how they manage their fair lending responsibilities. Now in addition to all of the examination procedures that we have done in the past, we then look at them again in light of the new HMDA data. Now what I have not said yet but is important to say is that, of those 200, probably 100 of them, probably half of them, are mortgage lenders that are outside of the banking industry in terms of the regulatory oversight. They are national bank or bank holding companies or bank subsidiaries. And I suspect that a good deal of the instances of questionable behavior that we find are in those institutions because they do not receive regulation with the same rigor as do the banks or the bank subsidiaries. Chairman Bachus. Thank you, Mr. Pearce. Mr. Meeks, do you have questions? Mr. Meeks. Thank you, Mr. Chairman. Mr. Olson, let me first thank you for your testimony. Let me make sure that I am clear, also, because I think it is important. I agree with you that maybe 20 years ago or less than that we were concerned, very definitely, about approval or denial, but I do not believe that we intended that to mean that individuals can be approved but get ripped off. At the same token, I want to be clear that I am not against subprime lending. I am against predatory lending, and I see that as two different things. But what I am against is and what I think that I know some of the studies have shown, where both a minority individual and a nonminority can go to a subprime lender with the same credit scores. It shows that, basically everything else being equal, the nonminority would be given advice or direction or something of that nature to how they can get a cheaper rate. But the minority is just given the most expensive rate. That kind of disparity is what I am focused on and I think should not be happening. And the same goes whether you are a subprime lender or prime lender. If you have the same background, everything being equal, you should have the same rights, and if there is a practice to steer one to a better rate, then both should be steered to a better rate. Historically, because of what you talked about and because of the way the marketing is done, because Blacks for too long had been denied by prime banks and so, therefore, they got tired of being denied and denied and denied, and then there are advertisements that are projected to the minority community in particular saying that no credit, any credit, we always say yes, just come and get your mortgage, and individuals want to get a home because we have preached the value of home ownership and they want to be said yes to. And they are steered to the subprime lenders. Once they got to the subprime lender, the guy looks and says they have A-1 credit, then the ethics, I think, that Mr. Davis was talking about should dictate that they should say, look, you do not need this. You can qualify for a better loan than this, and you should go someplace else. We do not see that kind of policing, that kind of ethics, if you will, in the industry. So I guess I led up to my question. One of my questions is this. Because then I also understand, as a result--and I do not know, maybe we need to increase the assessment area--that in those areas that have been classified as a CRA assessment area, in those areas we have found a much smaller disparity in lending rates then in those areas that have not been. So is it possible--because I am also trying to find out some solutions here. Is it a possible solution somehow that if we expand those assessment areas we can begin to again do something affirmatively to start eliminating the disparity that we see in these rates? So that is my first question to you. Mr. Olson. The CRA philosophy is essentially that an institution that collects deposits in a certain area is required to meet the financial needs of that community as well. So that in every bank we essentially we ask them to define their CRA area footprint. In other words, the areas where they have branches, the area where they are in the deposit-gathering process, and then have them assess the needs of that community and then meet the financial needs of that community consistent with their financial product offerings. Many of those institutions may have mortgage lending affiliates that have offices scattered throughout the country, and in those offices, they do not have the physical infrastructure, it is likely that in a lot of those institutions, the mortgage gathering process is done by mortgage brokers. So one of the questions that we raised rhetorically in our evaluation is perhaps it is the additional use of mortgage brokers that has resulted in product differences that carry with them higher rates, and that is one of the issues that we want to look at. As we examine the banks and the bank holding companies, including their subsidiaries, that we regulate, that is one of the questions we ask them, what standards that they have in place to either police brokers or to provide the borrowers with a range of products that best fit their credit profile. So that is one of the criteria that we use. Mr. Meeks. I will just ask this real quickly, Mr. Chairman, because I go back and forth in my own mind. One of the debates that we have here to combat steering and others is whether or not it would be better to have individual States address this behavior--we have strong anti-predatory lending statutes in New York, as opposed to having a national anti-predatory lending law--and whether or not that would help prevent this kind of steering. I just wondered whether you had an opinion on that. Mr. Olson. Congressman, we have not taken a position on that. As I indicated earlier, we are in the process right now of going around the country and having hearings, what we call the HOEPA hearings. More broadly, we are looking at the changes that are taking place in the mortgage industry and in the mortgage market, and to the extent that there would be a legislative initiative that came from that, we would then look at it at that time. At the moment, we do not have a position on that bill. Mr. Meeks. Thank you. Chairman Bachus. Thank you, Mr. Meeks. Mr. Baker. Mr. Baker. Thank you, Mr. Chairman. I appreciate your leadership on this issue and your bringing this matter to the attention of the committee. I have several questions that I just want to try to get into the record, perhaps a slightly different understanding of the purpose and complexity of HMDA data. Mr. Olson, my understanding is that HMDA data is a very broad brush regulatory tool that can open a window for the regulator to make further examination. But upon looking at the elements that are reported, I understand the data does not include, for example, the borrower's individual credit score, so that it would be difficult to know from HMDA data whether the person was a 550 or 750. I understand that HMDA data would not disclose, for example, at the time of closure whether it was a 100 percent loan or an 80 percent conforming loan. My opinion is there is a relevance between whether a person has significant equity in a home or whether they do not and the likelihood of not making their financial obligations. It does not disclose, for example, whether there is cash- out at closing which falls into the range of those mystery objects, 125 percent of home equity loans. I am still trying to understand how we allow that to happen. It does not disclose, for example, the borrower's debt-to- income ratio. So if the person were making $50,000 a year and had $200,000 in obligations in addition to a prospective $100,000 mortgage obligation, that might color the lending institutions about risk and rates. It does not include, for example, the loan-to-value ratio. It does not include a consideration of the individual's other assets owned. For example, if they were invested in the markets, they had a relatively modest job but had $2- or $300,000 in a bank account somewhere, that might incent that lender to give a lower credit cost to the borrower because of a low-risk likelihood demonstrated by that person's past savings history. It does not include an analysis of the person's employment record. They could be 20 years of age, right out of college, and employed 6 months. There is a high degree of risk associated with that person's earning capacity. It does not include an analysis of the person's academic record, which in many cases leads to a determination of a person's future earnings capacity and stability of holding a job. It does not include, for example, the variances in the lending institution's cost of funds, or a smaller institution in a rural market as competitive with a larger institution in an urban market might be at a market disadvantage in the cost of its own funding which then goes through to the ultimate borrower. It does not include consideration that the three credit rating agencies, which all have their own proprietary method of rating me, for example, would be extraordinarily unlikely, almost impossible, for me to call the three rating agencies today and get all three of them to give me the same identical numerical score. I cannot believe all three national credit rating agencies are doing racial profiling. I think it has something to do with the proprietary methodology with which they put in the financial indicators for that particular borrower. Also, it does not take into consideration that if I go to lending institution ``A'' with the same credit score and the same profile and go to credit extender ``B'', that there might be two variant screens through which my credit application flows; and the same person going to two institutions will get a different credible evidence rating risk assessment with the same person--not similar, the same person. That is called competition. That is why when you go out and you are looking for a home loan you very rarely find 20 people all willing to extend the same credit on the same terms on the same day. There is variance because all of them have slightly different proprietary methodologies on how they come to these conclusions. The reason why I bring these points up, it would appear to me to allege that there is racial profiling in the issuance of credit on the provision that HMDA data is the Bible and clear- cut philosophic statement on market activity, well, it seems to be a reach. I would hope that if a regulator, based on their discovery of the facts at a relevant institution, would find clear, convincing evidence that the same person who came in with the same score was treated differently from any other person with the same set of facts at the same institution for the same type of borrowing, we would find those people being treated equitably. And if they were not, wouldn't that be the regulator's responsibility to make further examination, call those executives in and say, let's get our business straight? Or am I wrong? Mr. Olson. I would go one step further. What you have described is a referral to the Justice Department. If you went through that entire analysis and found a pattern of discrimination, that is not what constitutes a referral to Justice. You said it exactly right. It is on an institution-by- institution basis. Because there are different risks. There are different risk appetites. There is a wider range of products. There is a wider range. Mr. Baker. I could apply at 10 o'clock in the morning, go back to the same institution at 2 o'clock and say, I've changed my mind; what's your rate now? Mr. Olson. The rate could have changed. Mr. Baker. And nothing has changed about me. It is all changed about the institution because their cost to funds is different. So all of the variances that people make reference to need to be backed up by specific case representations that Mr. Jones went in and had the exact same profile as Mr. Smith. Mr. Jones was denied, and that becomes an actionable case by the Department of Justice. Mr. Olson. That is correct. Mr. Baker. Thank you, very much. Chairman Bachus. Thank you, Mr. Baker. Ms. Waters. Ms. Waters. Thank you very much, Mr. Chairman, for not only holding this hearing and working with Mr. Watt and others to hold it, but thank you for redirecting me to the hearing when I was headed in another direction; I appreciate that. I have been trying to learn more about the role of brokers and loan officers, and the initiation of loan packages by people who are associated either with financial institutions or with other brokers, etc. Would you explain to me--and perhaps I should know this--what kind of latitude does an institution have in paying those who initiate loans for them--the yield spread, the difference in what the institution requests and the interest rates charged to the homebuyer, or other kind of pricing and what the broker can ask for--how does this impact the consumer? Mr. Olson. The yield spread premium I think is what you are referring to. Ms. Waters. Yes, that is what it is. Mr. Olson. As far as I know, there are no legal parameters around what a yield spread premium would require, but there are disclosure requirements for the yield spread premium. In the regulated financial institutions, we require the lenders to purchase brokered mortgage products, to have parameters around what the yield spread premiums can be and what would be acceptable yield spread premiums. In the less regulated environment, I should say that same discipline may or may not happen. Ms. Waters. I need a little bit more explanation. You said that it is disclosed. Mr. Olson. Yes. Ms. Waters. And what have you learned about--that is okay, go ahead. Mr. Olson. This is a very important question. Ms. Waters. Yes. Mr. Olson. It is disclosed on the HUD one, HUD disclosure statement; there is some controversy about how consistently or how well it is disclosed. Ms. Waters. What do you know about it? Based on the disclosure or lack thereof, what can you tell us about how this is impacting the consumer? What percentage of the subprime mortgages have yield spread premiums? How much are they? What is the average rate? How does that add to the mortgage costs? What is it all about? And can one of these persons, who may or may not be trained or--I don't know what this relationship is. I see people on the street offering mortgages, and telling people all kind of things and trying to get them into all kinds of risky mortgages. What do you know about this? Mr. Olson. Congresswoman, let us get back to--I do not have at my disposal today a significant amount of informational analysis of the yield spread premium or the impact it has on the market, but we do have that information, and I would be happy to come back and provide that for you. Or, Mr. Chairman, I would be very happy to submit that for the record as well. Chairman Bachus. Thank you. Without objection. Ms. Waters. Yes, I suppose so. But, Mr. Chairman, I would like for this issue to be the focus of our work as we look at the issue of predatory lending because I am finding that this yield spread premium is much larger than most of us understand. We need to know who gets to initiate these loans, not only much how much the spread is. I want to know what the various institutions are doing and how this works. So I would appreciate him not just getting back to me but getting back to you and this committee. Chairman Bachus. Congresswoman Waters, as you know, in your discussions on predatory lending or subprime lending bill, we have discussed the yield spread premium, and it is part of our discussions going forward. Ms. Waters. Do you have any data that has been collected on it? Chairman Bachus. We do have data as to what different States and the Federal Government--the parameters they have set on yield spread premium and what different States--the approaches they have taken. We probably are going to meet this Thursday, and I have been meeting with Mr. Frank, Mr. Watt, and I think your staff and others in these ongoing discussions. I think this is very important, about your line of questioning, that we do get some uniform bill to regulate subprime lending in this country of nonfederally regulated institutions. Ms. Waters. I appreciate it. I would like to see the information, and they should have it. Because if we have financial institutions who have a 6.5 interest rate and we have someone out there initiating a loan at 8 points or 7 points, I want to know how it all works, and is passed on to the consumer. Chairman Bachus. We have Secretary Jackson from HUD. We have had discussions with him. We have information from the Federal Reserve. We have a lot of HMDA data, and, in looking at the cost of these loans, of subprime loans, the yield spread premium is something that we have focused on. Ms. Waters. We have to do something about it. Thank you. Mr. Olson. Congresswoman, we are involved in some hearings around the country at the moment. We will be in California on Friday, as a matter of fact. And during these the whole issue of the role of brokers has been an important part of those discussions, and the yield spread premium is a component of the broker relationship with the borrower. That has come up. I am disappointed, also, that I am not better informed about that and cannot add more to it. Chairman Bachus. Actually, you have informed us about the hearings on financial literacy and steering. Mr. Watt. Mr. Chairman, I would like to make it clear that Ms. Waters was not walking out on you. She has a bill on the Floor, and I think she got focused on that. Mr. Olson. I promise you, I spent five-and-a-half years working for Members of the House and Senate, so I know the multiple types of responsibilities that you all have to balance. Chairman Bachus. I will say the Federal Reserve, as my understanding is, you all have been having hearings on the segmentation about race and ethnicity of the housing market-- Mr. Olson. That is correct. Chairman Bachus. --and will continue to have those. Mr. Olson. That is correct. Chairman Bachus. At this time, in the order--the order of witnesses by seniority, which is what the minority side has asked me to go by, Mr. Ford, Mr. Green, Mr. Clay, Ms. Lee, unanimously consent that you be allowed to have questions, because you are a member of the full committee and are one of the members who requested this specific hearing. So I would ask without objection that she also be allowed to ask questions. Unless there is some direction as far as seniority, I will take my direction. Mr. Clay. Mr. Clay. Thank you, and thank my colleague for yielding. Mr. Olson, let me ask you about your comment on your testimony on page 9 where you say, ``Yet the segmentation may have more troubling causes, at least in part. Segmentation may steer borrowers to lenders that charge higher prices.'' Who does the steering? Which part of the industry does the steering? Mr. Olson. We have heard the range of responses to that question. I will tell you that some of the people who have addressed this issue in great detail are the people on the next panel. So that is an important question you ask, but let me give you some of what we have learned. Number one, what we have learned is that people do in fact go to brokers or to lenders with whom they are comfortable or with whom they have repeat experiences. They also go to lenders that their principal advisor for financial products directs them to. There is a wide variation among how people determine who their primary advisors are. There is also in the mortgage business among all segments of the business a great deal of marketing and we have uncovered--not uncovered but we are aware of what is called push marketing, where there is a very substantial--very aggressive marketing taking place, not all of which necessarily will lead a prospective borrower to the most advantageous product based on their needs and on their credit backgrounds. Mr. Clay. I don't want to cut you off, because I have a limited amount of time, but don't you think if borrowers don't know there is a better product out there that prevents them from getting-- Mr. Olson. Indeed it does. That educational component is maybe one of the most important elements that we need to deal with; there is a knowledge asymmetry that is critical and growing. Mr. Clay. You also said that you are looking at 35 Federal Reserve regulated institutions that the 2004 HMDA data showed significant disparity based on race or ethnicity. How many of these institutions have outstanding CRA ratings, do you know? Mr. Olson. I don't have that information. Mr. Clay. Would you get us some data on that? Mr. Olson. With this caveat. We are very careful not to disclose the identity of an institution that we are examining, but I will try to correlate those two factors, the fair lending and CRA, to the best I can. Mr. Clay. My final question. Despite the value of the HMDA data for elimination of lending discrimination, there is no enforcement of the mortgage lending industry, the nondepository institution. This is a failure of the regulatory system. Why doesn't any other agency such as the FTC or the Justice Department aggressively pursue supervision and enforcement of the fair lending laws with nondepository institutions? Is this a protected group? If not, why no aggressive enforcement? Mr. Olson. In our case, I say that, broadly, in the case of the financial institution regulator with prudential supervision, it is our role to go into those institutions on a regular basis, and in those institutions we are both examining for and expecting that they will have processes in place, and we will examine them for their compliance with the whole body of fair lending law. By contrast, Justice and FTC, for example, are enforcers, as opposed to supervisors. It is a completely different paradigm. They are not funded or staffed to evaluate in the way we are. It is a different philosophy, a different approach to law enforcement. Mr. Clay. When you find practices of discrimination or something that is really overt, do you report them, too? Mr. Olson. To either HUD or Justice. It is almost always Justice. Chairman Bachus. Would the gentleman yield? Mr. Clay. I yield. Chairman Bachus. It is a referral? Mr. Olson. To the Justice Department. We have the authority to refer to HUD. For reasons that I can't tell you in great detail, they are almost always to Justice. Where we find evidence, significant evidence of discrimination that we would think perhaps is actionable, those are referrals to Justice. Chairman Bachus. From your fair lending reviews. Mr. Olson. That is right. There are enforcement actions that we can take independently, but where we see that level of evidence, it is a referral to Justice. Chairman Bachus. Congresswoman Lee. Ms. Lee. Let me thank my colleagues for yielding and allowing me to ask my questions. Let me go back to my point I made in my opening statement, Mr. Olson, with regard to CRA ratings. Of course, Congress created the Community Investment Act to make sure that banks are vested in strengthening communities in which they served and which they were collecting fees and in which they were doing business. Now I can understand your response to Mr. Clay not wanting to give the exact names of the 35 institutions that you are reviewing at this point, but I also know it is a matter of public information, especially in California, that the top five, ten banks, their percentage of mortgage lending to African Americans and to Latinos amount to, from what I remember, between 1 and 3, 4 percent, yet these banks--again, it is public information--their CRA ratings were outstanding. Now I have been trying for years to reconcile this, and Mr. Greenspan had indicated it was difficult to reconcile because the CRA statute did not focus on lending to minorities. But I guess what I would want to ask you is how do you think we can strengthen the statute so that we can at least have that information so we know whether or not the CRA ratings are really warranted? Because, quite frankly, an outstanding rating under CRA and mortgage lending to African Americans at 1 percent, something is not in sync, and I would like to get your ideas on how we can fix that. Then, secondly, I would just like to ask you about the FICA scoring process, credit scoring. What do you think we can do to make that a bit more reasonable so that it works better for potential homeowners, regardless of their race or ethnicity? Mr. Olson. When CRA was originally passed, there was a concern that financial institutions were taking deposits out of a community--and however you define community, could be a neighborhood--but out of an area but not looking at meeting the financial needs of that community. And boiled down to its essence what the CRA requirements are intended to do was to have an institution evaluate the extent to which in its marketplace, however it defines its marketplace, and certainly one of the key determinants of the marketplace is where it has its deposit base and the extent to which it evaluates the needs of that community and then meets the financial needs of that community consistent with the product line that that institution offers. That is the criteria. We take that very seriously in our evaluation and on an institution by institution basis, and I am sure that the banks have recognized this is a discussion that has gone on for some time, the extent to which that is really a serious process. Ms. Lee. Let me comment here. The needs in many of these communities are varied, but home ownership is certainly one need, and the product line of many of these institutions are mortgages. Mr. Olson. That is correct. Now those institutions have varying risk appetites. They might include a subprime lender or they might not. Some are very aggressive mortgage lenders. Some are very aggressive installment lenders. We don't ask all institutions to be all things to all people. What we ask them to do is evaluate how they are meeting the financial needs of their community as defined with the products that they have, and that is the criteria. Now I can't answer on a specific institution by institution basis, but that is one of the reasons that CRA ratings are disclosed and one of the reasons that HMDA information is disclosed, to have the institution in the public arena defend how they juxtaposed the two. Ms. Lee. I understand that, Mr. Olson. I am saying what resource is there, from a regulatory standpoint, for these institutions getting the outstanding ratings and yet they are flunking, on the most part, on mortgage lending to minorities? Mr. Olson. If in fact an institution is flunking, that would be a very difficult question to answer without looking at the specifics. Because it seems to me that what you have described is fundamentally inconsistent. Ms. Lee. But it is a fact and we have been trying to get some answers to this for years. I am trying to, like many, find a solution. We haven't been able to get any response from the Federal Reserve with regard to how we can begin to fix this. So I would like to work with you. Mr. Olson. Very good. We will continue to--we will make a point of following up and give you more specifics. Ms. Lee. Thank you, Mr. Chairman. Chairman Bachus. Mr. Ford. Mr. Ford. I will be very brief. Good to see you, Governor. You are a bright guy and brighter because you have a good guy from Memphis to work for you. Mr. Olson. Memphis is well-represented in the Federal Reserve, and we are the beneficiary of it. Mr. Ford. You tell the other Governor that I like him, but I like her even more, so I am glad to see you. Mr. Olson. You like her more so? Mr. Ford. She is a voter. I thank you. Just a quick question. I won't take much time. I have looked--what do you think the answer to this is? Because, obviously, that is what everybody is struggling to get at here. And Ms. Lee's frustration was not directed at you but years before she got here and the California gentleman's work on this and some of the others. How do we get at this? Because we all see this data, it inflames emotions and provokes some policy reactions, and then we seem to be back here every year. The credit agencies claim they have nothing to do with it, the banks say they really have nothing to do with it, and it just kind of happens. Then you have people we represent stuck with the bill. Normally, when rich people have a problem, they get a lobbyist and spend a lot of money and we get them moving up here. These folks can't do that. I don't mean to put it all on your shoulders, but how do we proceed from here? That is what we are trying to get at, and I know you are, too. Mr. Olson. If I can, Congressman, let me put that in a little bit broader context and describe what we see. What we have seen over the years and even incrementally from year to year, we see a significant increase in the number of mortgage applications, in excess of the population growth or even the adult population growth in this country. So what we are seeing is significant increases in the mortgage market, providing mortgage financing to an increasing number of people. We also see efficiencies in the marketplace so that the products are available at a lower price than ever before, and the entire growth of the market has meant that more people, minority and nonminority, have access to more credit than ever in the past. That process, as best I can tell, is accelerating because of the numbers of lenders in the marketplace and the explosion in the secondary market particularly and the secondary market appetite for the conforming and nonconforming product. The real difficulty that we see is that the increasing sophistication in that product means that the options available exceed the ability of even a fairly well-informed borrower to sort through all of the options available to them, and there are some--I don't remember who first said it, but there are some bad actors in the mortgage business. It is a small number, but there are some. And what we are trying to do, what we have done through the regs and in the hearings, is to isolate those practices and those lenders. So what we can do is to preserve the advantages that mortgage financing has provided to allow more people to achieve home ownership but, at the same time, identify both the practices and the lenders that are abusive. And it is a combination. It is on the one hand an educational process by the consumer. Certainly there is a responsibility that we ought to expect of the lenders. Thirdly, I think that one of the greatest support mechanisms that we have out there are the community groups. They have been tremendous both in disseminating information, helping pinpoint the lenders that probably are abusive and then call those to our attention. We have many banks in many markets partnering with community groups, and that is a process that we have strongly encouraged and certainly that is the regulators' responsibility on the oversight function. So it is a shared responsibility. Mr. Ford. Do you think that the punishment should be greater? Mr. Olson. That is a legal question, Congressman, and I am not sure that-- Mr. Ford. Do you think if there were sterner penalties that it might deter some of this behavior? Mr. Olson. I think the penalties--it seems to me that the most significant penalty that you could provide to a lender, a responsible lender, would be just the reputational risk exposure. For a lender to be branded as discriminatory in their lending practices, for a responsible lender that is the worst thing you could say about them. I think, to me, that is the most significant deterrent. Mr. Ford. I think you are right. That is a big part of it in some communities. But in some areas where people have limited options--that is the only concern I have. If you can only buy from one or two guys or women and they both have awful reputations but you have limited options, you don't have a real choice. Mr. Olson. You are hitting on an important point. Because one of the dangers that we see is that we are eliminating the numbers of people providing mortgage financing and to particular the minority communities. We have seen an increase in the numbers of lenders willing to aggressively lend. There is a downside to that. But I think it is important that we continue to remind lenders that we are encouraging additional lending into all communities, including the minority communities. Mr. Ford. I have gone way over my time, but if this committee considers anti-predatory lending legislation, the Governor of my State is about to sign a law in the next few weeks probably. Your thoughts, do we need a national law on this? Mr. Olson. We have not taken a position, Congressman, on this. Mr. Ford. I was hoping you were having such a good time you might break that rule. I appreciate your candor. I am of the opinion that the States probably should act if we are not going to act this point and hopefully come up with a good plan. So you all have not-- Mr. Olson. We have not taken a position. Mr. Ford. Thank you for taking your time and forgive me for abusing mine, Mr. Chairman. Chairman Bachus. Thank you, Mr. Ford. Mr. Green. Mr. Green. Thank you, Mr. Chairman and Mr. Watt, for hosting this hearing, and thank you, Mr. Olson, for your testimony. Let's start, if we may, please, with a sentence on page 7 of your testimony. Midway down the first paragraph it reads, ``Some of the typical credit-risk factors not included in the HMDA data are credit scores and loan-to-value ratios.'' If we had that information, would that alter your testimony greatly, sir? Mr. Olson. First of all, let me go back and make an important distinction. Those are factors that are not publicly available through the HMDA disclosures, but those are the factors that we look at very carefully and we do have access to when we examine those institutions. So it lends itself to the question, can you make a decision, can you arrive at a conclusion from HMDA data? And even that additional incremental data would not allow you to arrive at a conclusion. However, our responsibility as regulators is to get into those institutions and look at their entire lending methodology, and those two factors become important in our analysis. Mr. Green. In fact, in that same paragraph you go on to indicate that additional information about the lender, including loan products, lending practices, and borrower's credit worthiness; these are other factors that ought to be considered, and that would be important. Mr. Olson. That is correct. Mr. Green. Is it possible, Mr. Olson, to construct an acid test, if you will, such that we can ascertain whether or not invidious discrimination exists with reference to lending practices? Is it possible? Mr. Olson. It is possible--well, that is exactly what our role is, and that is exactly what the Congress has asked us to do in the enforcement of ECOA and the Fair Housing Act, the body of law that constitutes fair lending. That is our responsibility and--as is with the other regulators. If you were to have in the public domain enough information to definitively draw that conclusion, you would have had to lay bare the credit history and a lot of other personal data and a lot of other information of individuals that I think would be a fundamental breach of their right to privacy. Mr. Green. You have indicated that this is a part of your function, to come to conclusions about price discrimination, invidious price discrimination, is that correct? Mr. Olson. That is correct. Mr. Green. As a part of your function, given that you have access to information that is crucial in making such a decision about invidious discrimination, how many referrals have you made to the Justice Department? Assuming that you have found some cases of invidious price discrimination, how many referrals have you made to the Justice Department within the last 2 years? Let's start with 2 years. Mr. Olson. The pricing data--only recently has the pricing data been included in the HMDA disclosures. Mr. Green. I don't mean to be rude, crude and unrefined, but I do need to intercede. Because I have to ask this. Has this been the charge of your institution for the last 10 years? Mr. Olson. That is correct. For the last--since fair lending--since ECOA and since the Fair Housing Act have been on the books. Mr. Green. Approximately how many years? Mr. Olson. Twenty-five to thirty. Mr. Green. In that 25- to 30-year period, could you give me just a rough guesstimate as to the number of referrals you have, given that this is one of the charges of your institution? Mr. Olson. Let me--I would be happy to follow up and give it to you more broadly, but let me give you the figures that I have today. In the last decade, we have made 33 referrals to Justice. Mr. Green. In the last 10 years. Mr. Olson. Of those, I believe that the Justice Department has--3 of those 33 have actually resulted in action taken by the Justice Department. Mr. Green. Thirty-three referred and 3 of 33-- Mr. Olson. I have an update. In 2004 and 2005, we have made five referrals to Justice. Mr. Green. 2004 through 2005, five referrals. Mr. Olson. Correct. Mr. Watt. Could the gentleman yield? For clarification, are you saying that 3 out of 33 in which legal action was taken, or any action was taken? Mr. Olson. In which the Justice Department took an enforcement action. Mr. Watt. That is, filed a lawsuit. Mr. Olson. I have to get that. Including settlements. Mr. Watt. So just 3 out of the 33. Mr. Olson. That is correct. Chairman Bachus. Would the gentleman further yield? I think, as Governor Olson has said, this is only the second year that the pricing data has been available, and the Federal Reserve, to their credit, in 2002 started requesting this for 2004. So at least progress, I think, has been made. Before, you said, actually, this data would be helpful. Have you found it to be helpful? Mr. Olson. Mr. Chairman, I suspect that those five referrals probably are information that predate our receipt of the 2004 information that we finally got in 2005. Chairman Bachus. What about the benefits as opposed to the cost of the data that you are now collecting? Could you give us an assessment of that? Mr. Olson. The Congress has mandated that we will collect the data, and so we do. Chairman Bachus. Have you found it valuable? Mr. Olson. There is no question but what the release--that HMDA and the public release of that information has caused lending institutions to very significantly focus on the issue of disparate treatment. The additional information, the incremental information in pricing, that should not be new to any lender. Because we have been examining for compliance with that responsibility for at least a decade, also should not be new. But, even so, I suspect that lenders are much more attentive to that issue now that that information is in the public domain. So I don't know that I can quantify an answer, but it certainly has had an impact. Chairman Bachus. That included census tracking information. Mr. Olson. Geocode information, yes. Chairman Bachus. Thank you. Mr. Green, I yield back 2 seconds, if you have additional follow-up. Mr. Green. Thank you, Mr. Chairman. Permit me to ask about a term that I think I may have coined, and I simply called it O-U-T-I-N-G, outing. Did you out--3 of the 33, were they outed? Did we publish that they were engaged in invidious discrimination? Mr. Olson. The actions taken by the Justice Department were very public. Mr. Green. The others, the 30, what was said or done with reference to their actions? Mr. Olson. I would have to guess how Justice handled them, and I would prefer not to do that. But I suspect that, for whatever reason, they decided that there was not sufficient information in order for them to bring action. That is strictly a presumption on my part. Mr. Green. If I may, Mr. Chairman, may I ask one additional question? The Ohio law that has been referenced, I believe, earlier, if not, I am referencing it presently, it gives consumers the right to uncapped damages. We were talking about penalties earlier, and we talked about exposure as a penalty, and you gave your opinion about exposure as a penalty. What would be your opinion with reference to uncapped damages as a penalty? Mr. Olson. That is way out of my area of expertise, Congressman. The relationship between the penalties and the extent to which penalties may in fact deter behavior is way out of my range. Mr. Green. Just a final comment, and I appreciate it very much, if exposure is within your range, it would seem to me that, as a penalty, that uncapped damages might be something that we ought to give some thought to. Ohio seems to be a part of the avant garde, and maybe this is where we are headed. I am not sure. But I do look forward to visiting with you more. Thank you. I yield back. Chairman Bachus. Thank you. Governor Olson, you have testified before the committee now for 3 hours with a small break, and I want to commend you for your testimony and your openness with this committee. I think that Government works best in this environment, and I think it is a wonderful opportunity to display a beneficial interaction between an independent agency of our Government and the Congress elected by the people. So I very much appreciate it. We are going to have one follow-up question, unanimous consent request. Mr. Watt. In this segment of the hearing. Chairman Bachus. Governor Olson, let me simply say that this committee has found on many occasions that home ownership is a key to financial independence, that affordable rental housing and home ownership are basically for most people the choice of where they will call home, and we have programs to promote both of them. Home ownership, as you know, builds strong communities, and it offers children a safe and stable environment in which to grow and flourish. Having said that, there is a concern that this committee has--members on both sides of the aisle--on what appears to be an opportunity gap between our White citizens, non-Hispanic White citizens, who have home ownership rates of about 76 percent, and our Hispanic and Black populations or citizens, who have home ownership between 40 and 50 percent. So a gap of about 25, 26 percent, which is a concern to all of us, and we would ask your commitment and we know that we have the Federal Reserve's attention and commitment to seeing that we mirror this opportunity gap. Mr. Olson. You indeed have our commitment on that, Mr. Chairman. Chairman Bachus. Thank you. At this time, I will recognize Mr. Watt for unanimous consent. Mr. Watt. Mr. Chairman, I ask unanimous consent to be allowed to submit for the record a report of the Consumer Federation of America entitled: New Analysis of Nontraditional Mortgage Borrowers Shows Less Wealthy, Weaker Credit Than Industry Suggests; second, a report of the Fair Housing Center of Greater Boston entitled: The Gap Persists, in which the Boston Center used testers to call and visit 10 banks and 10 mortgage lending companies in the Greater Boston area and found differences in treatment that disadvantaged minority home buyers in 9 of the 20 matched pair tests. That was 45 percent. Seven of these tests, the difference in treatment were large enough to form the basis for legal action. So I am just submitting those for the record. Chairman Bachus. Without objection. I would also like to submit for the record testimony submitted by the Consumer Mortgage Coalition entitled: Home Mortgage Disclosure Act, Newly Collected Data and What it Means, dated June 13th. At this time, Governor Olson, you are free to leave. We will start our second panel. Mr. Tom Price, a Member from Georgia, will preside for at least the first hour of the second panel. Thank you very much. Mr. Olson. Thank you, Mr. Chairman, and members of the subcommittee. Chairman Bachus. If our second panel will come forward at this time. Mr. Price. [presiding] I want to welcome each member of the second panel, and I appreciate your patience as well. I know this has gone on a little longer that you have anticipated, but we thank you for coming and providing your testimony on this important issue. Joining us on the second panel are Dr. Douglas Duncan, who is a senior vice president and chief economist, research and business development at Mortgage Bankers Association; Ms. Janis Bowdler, housing policy analyst, National Council of La Raza; Mr. Bill Himpler, executive vice president, federal affairs, American Financial Services Administration; Mr. Keith Ernst, senior policy counsel, Center for Responsible Lending; Mr. Calvin Bradford, president, Calvin Bradford & Associates Limited, on behalf of the National Fair Housing Alliance; and Professor Michael E. Staten, director, Credit Research Center, McDonough School of Business at Georgetown University. We welcome each and every one of you. Please try to keep your opening statements to 5 minutes. The lights in front of you will show green until a minute is remaining; and then yellow will come on; and if you slow down enough, you won't get to the red, which comes on at 5 minutes to stop your testimony. If you can stay within these guidelines, it is appreciated. We will have members come in and out and hopefully have a good round of Q and A, and we thank you once again for coming today. Mr. Price. Dr. Duncan, if you would please begin. STATEMENT OF DOUGLAS G. DUNCAN, SENIOR VICE PRESIDENT AND CHIEF ECONOMIST, RESEARCH AND BUSINESS DEVELOPMENT, MORTGAGE BANKERS ASSOCIATION Mr. Duncan. Mr. Chairman, members of the committee, thank you. One brief change. Good afternoon. I have been analyzing HMDA data for 14 years and believe that HMDA is an invaluable tool to understand how the mortgage market works in practice. Our HMDA work at MBA helps our members reach new customers and develop products and underwriting tools to better serve new and established portions of the market. The most recent HMDA data on loans made in 2004 and 2005 demonstrate the greatest and widest availability of mortgage credit in our Nation's history, which in turn has made possible record home ownership rates. The data show that borrowers in virtually every area of the Nation of every race and ethnicity and every income level receive a wide array of credit opportunities. HMDA is fulfilling its intended legislative and regulatory purposes of providing data concerning the availability of credit in order to help lenders, regulators and the public spotlight where additional lending may be needed. It reflects activity in the marketplace, provides usable information to facilitate public and private investment, and provides signals to regulators where further review is warranted. The mortgage market is working. Statistical analysis of the data suggests that denial rates and differences in the incidence of minority and nonminority higher cost loans are explained by objective risk-related factors that are being applied in a nondiscriminatory manner. Absent overregulation and the imposition of unworkable solutions, the range of mortgage products and the risk-based pricing prevalent in the mortgage lending industry will continue to expand access to credit and record levels of home ownership. At the same time, competition will continue to compress rate spreads. The market is working, but we recognize that it is not perfect. While risk generally determines rates, the effectiveness of borrower understanding and shopping cannot be discounted. Borrowers still find it challenging to understand the mortgage process. Making financial literacy a reality is a good long-term goal, but we believe that there are steps we can take in the short term. First, borrowers need tools to educate themselves about the mortgage process; second, consumers need simpler, more user-friendly disclosures about mortgages in order to shop and compare; and, third, consumers need to be urged to shop more intensively, comparing mortgage offerings from lender to lender. Let me expand on that last point. Our research has shown that home buyers, particularly first-time home buyers, rely on a trusted advisor who may have an adverse incentive to help them through the complex process of buying a home and getting a mortgage. Too often, these new buyers, and particularly minority first-time home buyers, either contact only one lender or mortgage broker or are referred by a real estate agent to only one lender or broker while shopping for a mortgage. Borrowers more experienced in the process are generally more likely to seek additional rate quotes and are therefore more likely to receive a lower rate. MBA opposes efforts to chill the innovation in our Nation's mortgage markets or in any way weaken competition. Some solutions that would actually harm borrowers include unnecessarily burdening lenders with additional data requirements and continuing to expand the patchwork of laws at the State and local level aimed at predatory lending. Additional restrictions impose a cost, whether in increased compliance costs that are passed on to the borrower or through reduced competition as lenders make the rational decision that lending in certain markets is too risky. Here is the conundrum facing lenders today. If they deny a loan, particularly if it is a request from a lower income or minority borrower, they risk being charged with red-lining or falling short on CRA requirements. If they approve a request, they risk charges of unsuitability or an unsafe or unsound credit decision. If they charge too much, they are accused of predatory lending. If they charge too little, they could be out of the business. At this point, attorneys are telling businessmen what their business practices should be, but, despite the number of attorneys on this committee, that is not a good thing. Those promoting unwise solutions to abuses in the market have misused the HMDA data to push their agenda. Press releases and inaccurate reports state that the differences in denials in higher rate lending among the minorities are unfair and discriminatory. More worrying, however, appears to be the wide- scale use of these reports to make public policy decisions where more scientific research reaching the opposite conclusion is available to legislators. The mortgage market is working, and the innovation in this industry has benefited borrowers and increased the supply of credit, ultimately resulting in a higher level of home ownership than otherwise would have been the case. Thank you, and I look forward to your questions. [The prepared statement of Mr. Duncan can be found on page 78 of the appendix.] Mr. Price. Thank you, Dr. Duncan. I appreciate your testimony. Next is Ms. Janis Bowdler, the housing policy analyst for the National Council of La Raza. We welcome you. STATEMENT OF JANIS BOWDLER, HOUSING POLICY ANALYST, NATIONAL COUNCIL OF LA RAZA Ms. Bowdler. Thank you. Good afternoon. My name is Janis Bowdler, and I am a housing policy analyst for the National Council of La Raza. I would like to begin by thanking the chairman, the ranking member, and other members of this committee for hosting this important dialogue. Though I don't have as much experience as my fellow panelists, I bring NCLR's expertise and perspective on this important issue. As a funder of housing counseling, NCLR has been working with the mortgage industry for nearly 10 years to increase Latino home ownership. To better serve our clients, we have sophisticated partnerships with several of the Nation's top mortgage lenders. This allows us to understand the dynamics between lenders and the Latino community. HMDA data is critical in this respect. It is the only publicly available data that gives insight into how lenders perform in certain neighborhoods among low income and minority individuals. This morning, I would like to briefly describe what HMDA data tells us about Latino home borrowers and home owners, what is driving market disparities, and what more is needed from HMDA to complete the picture. Let me begin with what the 2004 HMDA reveals about Latinos. In many ways, the story is not new. Latino families are twice as likely to be in the subprime market as Whites, 18 percent of Latino applicants are denied financing, and this is compared to 12 percent of Whites. However, the release of the 2004 HMDA data gave us a look at disparities in product pricing. As you will hear later, Latinos are 30 percent more likely than Whites to be in the most expensive subprime products. Other minority communities have similar experiences. In addition, NCLR's review of proprietary HMDA data from various lenders has revealed similar results. Latinos and other minorities are underserved by the prime market and overrepresented in the subprime market. These disparities are a clear indicator of market failure. Such market segmentation results in families wasting hard-earned income on access fees and interest, rather than on building wealth. Moreover, these market disparities are not an accident,and centers built into the structure of the market drive segmentation. Allow me to explain. A variety of underwriting variables common among Latino borrowers often require manual underwriting. For example, 22 percent of Latinos do not have credit scores. In a world of automated underwriting, manually underwritten loans are an unwelcome increase in time and resources. Not wanting the added expense, lenders process few loans of this kind. The excess demand is then forced to turn to the subprime market. Subprime lenders use a discretionary and proprietary pricing known as risk-based pricing. It focuses on placing clients in products that are profitable for the lender rather than suitable for the borrower. In an effort to further cut costs and boost profits, lenders also rely on mortgage brokers. They help reach deeper into certain markets and cut branch expenses. Consumers rely on broker services, too, especially Latinos. Bilingual and bicultural brokers promote themselves as advisors Latinos can trust to find them the best deal. However, lender-offered incentives known as yield spread premiums entice brokers to push the cost of the borrower's loan higher. YSP's add another layer of subjective pricing to already expensive and risky products. NCLR's experience with the market busts the myth that such products are the only ones available to meet the needs of these hard-to-serve borrower profiles. Eighty-eight percent of NCLR's housing counseling clients are below 80 percent of area median income and many require manual underwriting, but all receive prime products. Instead, lenders are looking to cut costs, please their investors, and increase profits. Still, more information is needed to accurately gauge the quality of services that lenders provide to minority and underserved communities. For example, loan-to-value ratios and credit scores are often considered the driver of mortgage prices. Those needed fields are not collected by HMDA. Moreover, HMDA is not as user friendly as it could be. The Internet offers the easiest access point for most, but not all, publicly available data is on the Web site. To summarize, HMDA data provides the only publicly available picture of how minorities are faring in the marketplace. It reveals that Latinos and other minorities are not being served well by the mortgage market. They are forced to rely on subjective pricing models because of inadequate service by the prime market, and more information must collected under HMDA to allow for more in-depth analysis. In closing, NCLR would like to make the following three recommendations: First, hold lenders and brokers accountable; create suitability in anti-steering standards for lenders and mortgage brokers; remove the barriers to HMDA analysis by adding additional data field so more robust analysis can be completed; and invest in housing counseling as a meaningful way to bridge the gap between underserved borrowers and their home ownership opportunities. Thank you, and I look forward to your questions. [The prepared statement of Ms. Bowdler can be found on page 90 of the appendix.] Mr. Price. Thank you very much. Next, Mr. Bill Himpler, executive vice president of federal affairs, American Financial Services Association. We welcome you. STATEMENT OF BILL HIMPLER, EXECUTIVE VICE PRESIDENT, FEDERAL AFFAIRS, AMERICAN FINANCIAL SERVICES ASSOCIATION Mr. Himpler. Thank you, Congressman Price. Good afternoon, Congressman Green and Congressman Watt. I represent the American Financial Services Association and its 300 member companies, which include consumer and commercial finance companies, ``captive'' auto finance companies, credit card issuers, mortgage lenders, and other financial service firms that lend to consumers and small businesses across the country. This year, AFSA is celebrating its 90th birthday as the Nation's premier consumer and commercial credit association. I am pleased to be here today to provide an industry perspective on the Home Mortgage Disclosure Act, also known as HMDA. Specifically, my comments will focus on the value and limitations of the data collected under HMDA and why we think that the 2004 data demonstrates that risk-based pricing works. First, let me provide some quick background on this law. As has been stated, HMDA was first enacted in 1975 to identify and prevent red-lining. Therefore, lenders were required to provide data on the location of loans financed by property location by State, county, and census tract. In 1989, HMDA was amended to require lenders to collect and report the race, sex, and income of every applicant and borrower, and, in 2002, HMDA was again amended to include rate information on higher rate loans. And, in 2004, lenders began reporting on this new data set, including the spread or the difference between the borrowers' APR and comparable Treasury notes. While HMDA data can assist regulators in several ways, they do not present a complete picture of the mortgage lending process. That is because the data do not contain relevant risk- related and price-related information including the borrower's credit score, property type, down payment, any cash-out information, property value, the borrower's debt-to-income ratio, the loan-to-value ratio, and any assets held by the borrower. Marketplace competition and the degree of borrower research and comparison shopping also are among the factors that typically determine the rate received by a borrower. Without the information I just listed, HMDA cannot be used to draw accurate conclusions about why a loan was refused or made at a particular rate. Throughout 2005, the Federal Reserve explicitly cautioned that using raw data from HMDA alone could lead to faulty conclusions about lending practices. The obvious question is: Why not require lenders to collect and report borrowers' credit and risk-related information that is used to price a loan and determine the rate that is charged; there are several reasons. First, the release of credit scores and certain other data would undermine the privacy interests of borrowers. Second, the data elements utilized by lenders are numerous and weighted differently by different lenders and such weighting cannot be disclosed without undermining market competition and reducing invasion. Third, regulators already have the ability to review the individual loan files--let me say that again--individual loan files, which is really the only way to determine whether or not lending discrimination has occurred. Even if all the data points that I mentioned earlier were collected and reported, HMDA data would still be incomplete. That is because some of the credit and risk-related factors that lenders rely upon are not captured electronically. For example: the data set does not capture the borrower's payment history related to past rent and mortgage payments; does not capture information related to the borrower's employment stability, such as whether or not the borrower has seasonal work or is an independent contractor; and it does not give an assessment of the surrounding neighborhood and value of nearby homes. In its analysis of the 2004 HMDA data, the Federal Reserve reported that the risk-based pricing now used is working effectively. It has expanded access to credit and significantly contributed to the highest levels of home ownership in our Nation's history. A record of nearly 70 percent of Americans now own their own home. Consumers are benefiting tremendously because mortgage lending is far more competitive than it was just 10 or 15 years ago. Today's unprecedented competition between lenders is keeping prices low and allowing consumers to shop around for a better-priced loan. Finally, there is one point that I can't stress enough: Pricing disparities between borrowers who have different racial or ethnic background but identical personal and property risk profiles are unacceptable. The mortgage lending industry is committed to nondiscriminatory lending practices, and we continue to work with others who share our commitment to affordable lending to determine why any disparities exist so that we can take the necessary steps to eliminate them. I appreciate the opportunity to be here today and would be happy to answer any of your questions. [The prepared statement of Mr. Himpler can be found on page 96 of the appendix.] Mr. Price. We thank you for your testimony. Next is Mr. Keith Ernst, senior policy counsel for the Center for Responsible Lending. Mr. Ernst. STATEMENT OF KEITH ERNST, SENIOR POLICY COUNSEL, CENTER FOR RESPONSIBLE LENDING Mr. Ernst. Thank you. I would like to thank Chairman Bachus, Ranking Member Sanders, and members of the committee for the opportunity to testify on recent developments related to the Home Mortgage Disclosure Act. Also, I would like to take this opportunity to specifically thank Chairman Bachus and Congressman Watt for their thoughtful leadership in addressing predatory lending and other interests vital to American homeowners. In these brief remarks, I will discuss a recent study from my organization. In it we find that African American and Latino borrowers in the subprime market are commonly 30 percent more likely to receive a higher rate mortgage than similarly situated White borrowers. Before turning to the study, however, I wish to provide some context. There have been longstanding concerns about potentially unfair pricing in the mortgage market. In 2000, a joint report by HUD and the Treasury Department noted that in predominantly Black neighborhoods, subprime lending accounted for 51 percent of refinanced loans in 1998, compared to only 9 percent in predominantly White neighborhoods. Federal Reserve researchers recently noted in 2004 African American and Latino home buyers remained respectively 3.1 and 1.9 times more likely to receive a higher rate home loan, even after controlling for differences in income, gender, property location, and loan amount. To help advance understanding, my organization brought together detailed information on loan prices, loan terms, and borrower risk profiles in a single database of 177,000 subprime loans made in 2004. As a result, we were able to ask squarely if race and ethnicity were significant predictors of whether a borrower received a higher rate loan. As I mentioned, the findings were striking. Even after accounting for objective factors that lenders used to set prices, including borrowers' credit scores, including loan-to-value ratios and borrowers' ability to document income, we report that African American and Latino borrowers in the subprime market remain commonly 30 percent more likely to receive a higher rate home loan. When considering these results, it is important to understand that our analysis focused exclusively on subprime mortgages, those intended for borrowers with blemished credit. Also, our study did not evaluate patterns of loan approvals or denials. Rather, we illuminate troubling disparities in pricing. These disparities represent real barriers to economic progress at a time when the median non-White or Latino family continues to have just one-sixth the net worth of the median White family and substantial gaps in home ownership remain. Even as I note the importance of these findings for specific communities, I stress that they have implications for all families. There is simply no reason to believe that the issues underlying these disparities stop at the color line. With this in mind, I offer several recommendations: First, address industry practices that deviate from risk- based pricing and encourage inflated charges. The clearest example lies with yield-spread premiums. These cash payments give brokers a direct incentive to place borrowers in loans with higher rates. Including these charges in a revised definition under HOEPA would provide an important check against predatory lending and unfair pricing. Second, holds lenders and brokers responsible for providing loans that are suitable for a given borrower. Investment counselors have long had such an affirmative obligation, yet while buying or refinancing a home is the biggest and increasingly most complex investment most American families will ever make, lenders and brokers frequently have no such obligation. Third, require lenders under HMDA to disclose more detailed pricing information, indicate whether a loan was brokered, and provide information on key underwriting variables. Fourth, encourage regulators to focus and make more transparent fair lending enforcement activities. Finally, I recommend supporting a policy framework that promotes responsible lending. Especially critical to this objective are policies to end abusive lending so responsible lenders can successfully compete to meet all families' credit needs. Along these lines, State predatory lending laws provide a useful model as they work to filter abusive loans while allowing credit to flow. In closing, I recognize that every member of this committee shares the ultimate goal of fairly priced credit and the resulting opportunities to build wealth for all families. The 2004 HMDA data shows that we have substantial work ahead to realize this goal. Thank you for your consideration. [The prepared statement of Mr. Ernst can be found on page 101 of the appendix.] Mr. Price. Thank you very much for your testimony. We now have Mr. Calvin Bradford, president of Calvin Bradford & Associates, on behalf of the National Fair Housing Alliance. Mr. Bradford. STATEMENT OF CALVIN BRADFORD, PRESIDENT, CALVIN BRADFORD ASSOCIATES, LTD., ON BEHALF OF THE NATIONAL FAIR HOUSING ALLIANCE Mr. Bradford. Thank you. I am speaking here today on behalf of the National Fair Housing Alliance, or NFHA. I want to thank Chairman Bachus and the members of this committee for inviting us to these important hearings. Professionally, I have worked in the field of fair housing, fair lending, and community reinvestment for 35 years. NFHA was founded in 1988. I have worked with this organization on many of its extensive educational training and enforcement programs in fair lending. Today, I want to make five key points: First, the Home Mortgage Disclosure Act data are widely used and extensively valuable in fair lending and community reinvestment activities. Since these data were first released, HMDA has become the pre-eminent source of comprehensive data to track patterns and trends in mortgage markets. Community groups, civil rights attorneys, governments at all levels, financial regulatory agencies, and lenders have used the data literally thousands of times each year to address fair lending. These uses range from identifying lenders for testing to developing programs that have created literally billions of dollars in private reinvestment programs. However, improvements can be made. For example, the HMDA data software programs could be more user friendly for community based organizations and others with limited resources. We also recommend that HMDA be enhanced to include the identification of loans processed through mortgage brokers, that interest rates and fees be reported separately, and that the FFIEC consider whether a single pricing index really is appropriate for all HMDA loans. Second, fair lending enforcement by the Federal enforcement agencies is critical to eliminating housing discrimination. Private lawsuits have historically been the mainstay in efforts to combat lending discrimination. While these private efforts are important, the full engagement of Federal enforcement agencies is essential for any serious effort to combat lending discrimination in its many forms. Typically, in order to show that a member of a protected class was treated illegally, one needs to know how other applicants were treated. This requires access to proprietary information that is not in the public domain. Most victims of discrimination are unlikely to know that they have been discriminated against, especially where deception is involved and misleading or fraudulent practices. Private organizations simply do not have the resources to undertake this type of investigation and litigation on a routine basis. Lack of aggressive Federal enforcement actually provides a form of safe harbor for those engaged in discriminatory activity. Third, the Federal regulatory agencies must improve the quality and the scope of their fair lending enforcement activities. The Federal agencies that regulate depository institutions have the authority to conduct effective fair lending exams. However, in the experience of many of us directly involved in training, education, and litigation, the record of enforcement falls short of the mark. For example, in the case of Flagstar Bank, the OTS raised its CRA rating from satisfactory to outstanding after it was found liable for overtly discriminating against an entire national class on the basis of race in a Federal court. Moreover, the discriminatory policy was implemented while the bank was being examined. Fair credit lending exam procedures themselves sometimes reflect the fundamental lack of understanding of fair lending. For example, find the examination procedures actually instructing examiners that it is an indicator of potential discrimination if the same loan officer is allowed to provide an applicant with applications, or options, for the prime and subprime loan product of that lender's mortgage companies. On the other hand, this practice was seen by fair housing groups and many of us in the field as essential to fair lending. We recommend that Congress should exercise its continued oversight authority to determine why discrimination that is so often identified by private enforcement efforts is so seldom uncovered by fair lending exams. HUD, Justice, and the FTC must increase their fair lending enforcement efforts. HUD is the main enforcement agency under the Fair Housing Act. However, it has undertaken very little fair lending enforcement activity. The Department of Justice was the lead agency in establishing some landmark cases in the 1990's, but its enforcement activity has declined since then. The Federal Trade Commission has the authority over nonregulated lenders under the Equal Credit Opportunity Act, but it has pursued almost no lending discrimination cases. In this environment, Congress needs to allocate additional resources to HUD's Office of Equal Opportunity and to the Fair Housing Initiative Programs in order to support increased educational enforcement efforts on the part of private fair housing organizations. Finally, but not least at all, no agency regulates independent mortgage companies for fair lending compliance. There is a vacuum of Federal enforcement of nondepository institutions which account for the majority of loans in the market today. This is an especially severe problem in the subprime market and in the wholesale market, where most lending is done through unregulated brokers. In addition to HUD, Justice, and the FTC, we believe that the Federal Reserve should take more aggressive action to ensure that bank holding companies and all of their affiliates are in compliance with fair lending laws. This conclude our comments. [The prepared statement of Mr. Bradford can be found on page 110 of the appendix.] Mr. Price. Thank you, Mr. Bradford. Finally, we have joining us today Professor Michael Staten, who is the director of the Credit Research Center at the McDonough School of Business at Georgetown. STATEMENT OF PROFESSOR MICHAEL E. STATEN, DIRECTOR, CREDIT RESEARCH CENTER, MCDONOUGH SCHOOL OF BUSINESS, GEORGETOWN UNIVERSITY Mr. Staten. Thank you, Congressman Price, and members of the committee. As the last of six panelists, and after extensive Q and A with Governor Olson, I run the risk of sounding like a broken record. Nevertheless, I will plow forward and get right to the point. HMDA is designed to provide information about the extent to which mortgage loans are available to borrowers across neighborhoods and across income and racial groups. The data are very good at that original purpose. With the addition of pricing data for some loans, the HMDA data more accurately identifies the location of subprime lending activity, as well as higher-cost loans under HOEPA coverage. As such, the database is a gold mine for researchers and also for marketers seeking to identify certain neighborhoods that may be ripe for competition. However, the HMDA reporting process was never designed to replicate the data collection that mortgage collectors undertake during the underwriting process. It can jump-start for the regulators a fair lending analysis because it indicates the price of the loan that is actually charged. But far more characteristics about the borrower and the property and the loan itself are omitted from HMDA than are included. So the HMDA data by itself cannot be used to draw any conclusions about the appropriateness of pricing. That should not come as a surprise to anybody, because the Federal Reserve has repeatedly noted for the last several years that it is going to use this new pricing data purely as a screening device to identify institutions for closer scrutiny and inspection of the loan files. It looks for pricing disparities that can be accounted for with the HMDA data itself and then flags institutions and loan products for a closer look at the actual files. The HMDA data help it to focus that resource-intensive process. One of the lessons that was pretty effectively demonstrated in the Fed's bulletin article last fall was that differences we observe across racial groups in the likelihood of receiving a high-price loan narrow as more information about risk-related factors is added to the analysis. Characteristics of the loan, such as the size of the borrower's down payment and whether the interest rate is fixed or adjustable, account for some adjustments in loan price, but they are not reported under HMDA. Characteristics of the borrower, like credit score and total debt relative to income, and delinquency history, also affect the price, but they are not reported under the HMDA. You are undoubtedly aware that different research groups, including my own, have used different loan bases with different variables, and we have all found that when information is added to the HMDA-reported data, pricing disparities shrink. We all acknowledge that the databases we use do not contain all of the risk factors that lenders consider when pricing a loan. I picked up from comments made earlier in the hearing that there is this illusion that some of these studies actually control for everything, but they do not. All of them are short some of the information that is present in the loan files but not present in the electronic databases that are utilized. So there are really two messages here. The first is that analysis of pricing fairness is greatly affected by the amount of information about both the borrower and loan characteristics. The second message is that when available data are known to be incomplete, analysis must be preliminary and no conclusions from that analysis are possible. The Federal Reserve has been saying this repeatedly for more than a year. Call it, ``the inconvenient truth'' of the HMDA data. The fact is that no study based on HMDA data alone can generate a conclusion that any lending institution has violated fair lending laws, nor can studies like our own or the recent study by my colleagues at the Center for Responsible Lending that utilize an expanded but still incomplete set of loan level characteristics. Good intentions notwithstanding, this sort of statistical effort is destined to fail. The data just are not up to it. The only way to reach defensible conclusions about fair lending practices is through a combination of statistical analysis and loan file review through the examination process. That is exactly the approach, apparently, that the Federal Reserve is using. In my written testimony I refer readers to two papers by agency economists that present results from actual fair lending exams. Both papers demonstrate rather convincingly how inspection of loan files can significantly alter conclusions reached through portfolio-wide statistical analysis alone. It is certainly reasonable to ask, and it has been asked several times already this morning, if more statistical information would be helpful. Wouldn't it be a good idea to require more detail as part of the HMDA reporting requirements? I think the answer to that depends on the extent to which reported items would be publicly disclosed. The requirement that lenders provide more detail to the Federal Reserve for its internal use only might help to focus their pricing disparity analysis and focus those resource- intensive efforts by telling them which loan files to look at. Now suppose that the expanded reporting requirement would also include public disclosure of the data elements, just as current HMDA data are disclosed. It seems to me that this is a very bad idea, because the process would quickly compromise the privacy of borrowers. The Federal Reserve staff have already demonstrated that it is possible to match publicly available HMDA data with publicly available information on property transfers to identify the race and income of owners reported under HMDA right now with a high degree of accuracy. Federal Reserve staff indicate that for more than 90 percent of loan records in a given year's HMDA data, that the lender reports only one loan in a given census tract for a specific amount. If you know the lender, the census tract and the loan amount, you can match it with publicly available property records and determine the identities of borrowers. With that match, any item in the HMDA database is publicly known. Public release of data on credit scores and other borrower attributes is virtually unthinkable, given today's regulatory commitment to privacy protections, and it still would not give the public all the information necessary to draw fair lending conclusions. Thank you very much, and I would be happy to answer questions. [The prepared statement of Professor Staten can be found on page 128 of the appendix.] Mr. Price. Thank you, Professor Staten. We appreciate it. We thank you very much for your testimony, and we thank you for your participation. It is very valuable information you brought to us today. I should have mentioned before you began that, without objection, your complete written statements will be made a part of the record. We have scheduled some votes within a relatively short period of time, but I think we can probably get through questions. We will begin with Mr. Watt, and I recognize Mr. Watt for 5 minutes. Mr. Watt. Thank you, Mr. Chairman. Let me first commend all of the witnesses and reassure particularly Professor Staten that we have no illusions that HMDA data is the end-all to all the questions that are out there. If we did, I suspect a number of people would be running out the door to file lawsuits based on discrimination. I think all of you have demonstrated that there are a number of factors that go into determining what lender rates will be and conditions and terms of a loan will be, and for that reason borrowers are having trouble sifting through all of these factors. I think it was said there were about 30 of them. Representative Baker named a bunch of them, including the time of day. We know that loan decisions are complex, but we still get back to the end of the day--a recognition that I think Mr. Himpler made, if I can find his testimony, that at the end of the day pricing disparities between borrowers who have different racial or ethic backgrounds but identical personal and property risk profiles are unacceptable, and I do not think any of us, industry, Members of Congress, anybody thinks that some of that is not going on. So we get back to Representative Ford's question, and probably the fairest thing to do is to ask Mr. Duncan and Mr. Himpler to address this. It is implicit in Mr. Himpler's statement where he says, ``We continue to work with others who share our commitment to affordable lending to determine why any disparities exist so we can take the necessary steps to eliminate them.'' It raises the question, how do we get there from here? In a market that is very viably complex, where everybody's intentions are good, rate differentials, loan differentials are still taking place, how do you suggest we do that? We do not want to increase the burden of paperwork. We do not want to make life more miserable for lenders. We simply want to eliminate any unacceptable factors from being considered. How do we do it? Mr. Himpler. Well, since you are referencing my testimony, I will take the first shot at it, and I have a feeling that my colleague, Dr. Duncan, will elaborate more fully than I can. Mr. Watt. If I referred to him as Mr. Duncan, I'm sorry. Dr. Duncan. Mr. Himpler. I think at this point we do not want to get the cart before the horse. It is probably imprudent for me, Congressman, to ask the members of this committee to please be patient, but, essentially, that is what I am asking as a representative of the mortgage industry. A number of our members have just reported HMDA data for the first time in 2004, which is why the Federal Reserve worked so hard to crunch the numbers. They have now made referrals from the 8,500 plus lenders from whom they reviewed data. They made referrals for further investigation to the regulatory bodies that Governor Olson mentioned, including the Federal Reserve. My hope is that at the end of the day, as those investigations come to a conclusion, that--and I would encourage members of this committee to request that of the regulators--to report to this committee and to Congress what findings they had. Let's let the process work itself out. They have the ability. They are looking at individual loan files, and only by looking at individual loan files can you determine whether or not discrimination is taking place. But it is going to take a little bit more time. Mr. Price. Dr. Duncan, if you would like to. Mr. Duncan. Certainly, Congressman. Not to worry about the title. Only my mother has permission to call me doctor, typically. I think the best way both to reveal any inequities and to ensure that they do not emerge has two parts. One is on the lender side and the other is on the consumer side. On the lender side, what you need is vigorous competition so that someone who is discriminatory is revealed to have pricing, whether in dollars or quality, that is outside the market and the market bids the business away from them by doing a better job. Oversight over that lender requires vigorous regulatory oversight and well-funded support for that oversight for existing laws prohibiting fraud and discrimination. That is something that we have argued for for some time and is still not fully there. On the borrowers' side, what borrowers need are three things. First, they need good information that is understandable, to understand the mortgage process from beginning to end, and that has become ever more important as some lenders now have 200 to 300 loan products that they offer. Second, they need clear, understandable disclosures of the loan terms so they can understand how the product works so that they can shop it from lender to lender. And third, they need all the encouragement that they can get to shop from lender to lender and make the market forces work for them. We have done some survey work that showed--and this was about 4 years ago--of the thousand people who bought a home, not refinanced but bought a home, one-third never talked to more than one party in the entire transaction. Well, if you happen to get one of those bad actors you are leaving yourself open to abuse because you did not activate the power of the marketplace. Mr. Watt. I plead guilty to that. Most borrowers will. Mr. Price. The gentleman's time has expired. Mr. Ernst. If I may add one note to that. I disagree that consumers need more information and encouragement to shop around. I think one of the things that has become very clear to ask, working with the data being involved in this to date, is that consumers also need confidence that there are a set of policies in place that protect them and promote their best interest. If we talk about 200 or 300 mortgage products out there in the marketplace, that really is a bewildering array. I think that is why one of our strong recommendations at this point in the debate is the focus and the protections, including suitability requirements, and ensure that some of that high- quality information for a while may come from the mortgage broker, the person sitting across from the table, who is really in many ways in the best position to provide that information. Mr. Price. Thank you. The Chair recognizes himself for 5 minutes. I just want to thank you all very much for coming. Your testimony and this information has been very helpful, at least in my education process on this. I am also struck by the number of outliers that you note, Mr. Himpler, and I note that we look forward to that report and see what information they glean. I was also struck by the time of day being part of how a mortgage turns out in terms of offer. I have noted that is true for purchase of cars as well, time of day, and day of the month. So it is indeed an education process. I have just two kind of overarching questions for anybody who wants to take a stab at them. One is, is there any role at all for subjectivity in the granting of a mortgage? And anybody is certainly welcome to take a stab at that. The second one, in view of Mr. Himpler's and other's testimony, I wonder if it is possible--Professor Staten touched on this as well--to collect adequate data that can either confirm or disprove that discrimination is in place. So kind of those overarching questions, if anybody wants to take a stab at them. Mr. Bradford. Mr. Bradford. I would like to start with the second one. I think the real purpose of the Home Mortgage Disclosure Act has been to try to respond to the market as it has--over the years, it has changed and added information in order to be able to highlight the areas, to sort of focus light on the areas where disparities exist so that the real, substantive, detailed analysis investigation can take place. I do not think it is reasonable to assume that you are going to be able to re-underwrite every single loan by some set of public data, because of the vast number of loan products and flexibilities and guidelines that exist. That I think brings us back to the importance of there being a Federal enforcement effort, because those agencies have the authority to go and investigate those cases. It looks like half of these 200 lenders that I find in the Federal Reserve's analysis are essentially unregulated lenders, and we do not know what is going to happen with looking intensively at their patterns. We have the regulatory agencies responding to the ones covered by them. Just in passing, I would just comment, sometimes all of us who have degrees in statistical analysis have done a terrible disservice to everyone, because there seems to be an impression that statistical significance is sort of the end-all to defining these issues, and I think it relates to a subjective question. Statistical analysis is not going to help you with the marketing programs where lenders serve different channels and different groups and populations for different channels. It is not going to resolve internal decisions people make about whether to grant exceptions and make subjective decisions that are informed and that should be guided by policies of the lender but nonetheless they are not. They are not something that you can incorporate in the underwriting system. They still are subjective. I work with the Fair Housing Act, and the Fair Housing Act does not say you can discriminate until you pass some threshold of statistical significance. If you violate anyone's rights, you have violated the law. Also, in the Federal Reserve analysis, statistical significance is driven literally by the size of your groups. Therefore, you can see statistical significance in a whole market, but when you pick a particular lender and then a particular set of loan products and then a particular set of characteristics to match on, you are likely to end up with a group that is so small that it really is mathematically impossible if there aren't statistical differences, even if people were treated totally differently. So we have to be careful, that you might have sensed that somehow the statistical difference is important and the examination procedures literally allow the examiners under conditions to use the statistical significance difference and statistical measures instead of their full exam procedures. So I think we need to focus on those subjective ways in which they examined the way the decision actually got made. Mr. Price. My former statistics professor appreciates your disclaimer. Mr. Himpler. Mr. Himpler. Yes, a couple of comments, Congressman. You made mention to my reference to the 200 outliers. I do not want anyone to take away from my commentary this afternoon that I would characterize those either finance companies or financial institutions as outliers. They are going through the process. The HMDA data pointed to the possibility or the need for further investigation, and until they are investigated fully then they are not really outliers. But I did want to make one other comment, because it has come up a number of times. We are talking about federally regulated financial institutions and nonfederally regulated either financial institutions or finance companies, a number of which I represent. I think it is important for the members of this committee to remember that a number of the finance companies that are not federally regulated are very well- regulated at the State level. A number of members have even commented that the States should be taking a lead in that. As a corollary to that--and I appreciate Congressman Meek's comments earlier--making a distinction between subprime lenders and those that abuse the process. It is important to remember that the progress that we have made over the last 10 or 15 years in the mortgage lending arena has largely come through subprime lending and digging deeper and deeper into the consumer market. So that we are not talking about pass, fail, approval, denial. We are talking about rates. That is where the debate should be. Mr. Price. My time has expired, but Ms. Bowdler if you want to comment. Ms. Bowdler. Thank you. I just want to pick up on the idea of subjectivity. There is an earlier comment--there has been a lot of talk about the number of products that are out there for people. Say there are 200 products. It is quite conceivable that I am going to qualify for 10 or 20 of those products. So, when sitting down in front of a lender, how our families end up in one product over another when they could qualify for, say, any fraction of those 200 really has to do with what are the motivations of industry. And I am just going to go that, hands down, they are always going to put them in the loan that is most profitable for them. That is just the nature of the beast. The business want to turn a profit, and it needs to do so in order to continue to serve consumers. But what we need is something to offset those motivations, some incentives to make sure that the concerns of the borrower are represented. So there are a couple of things that have been talked about. If you would indulge me for just one moment, I have brought an example, this question of subjectivity, of how people end up in the various loans that they do and is there room for subjectivity. I have with me the Casa section from the Washington Hispanic and the Real Estate section from the Washington Post, both from this month. I went through the Casa section, and there is not one advertisement in here for a standard prime product. They are all 100 percent financing, payment option, adjustable rate mortgages with a teaser rate, and that includes both mainstream institutions and mortgage finance institutions. If you look at the English language newspaper in the Washington Post, I did not find any payment option mortgage advertisements. I see lists and lists of standard 5/1 ARM's, standard amortizing product. So when we are talking about room for subjectivity, I think there is, but what we need to talk about is also how to offset the profit motivations of industry to make sure that consumers are treated fairly. Mr. Price. Thank you. My time has expired. Mr. Green, you are recognized for 5 minutes. Mr. Green. Thank you very much. I am concerned about the impact of the newly passed Ohio predatory lending law, and my assumption is that some of you will be familiar with it. It imposes a good-faith standard for brokers and lenders. It gives consumers a right to sue for uncapped damages, and it creates a database of loan officers who violate the law and make available that database on a Web site. Now the question is, what impact do you think this newly passed law will have on lending practices? And I welcome all of you to give your opinions. Mr. Ernst. It seems we may not have any Ohio law experts on the panel, but I will say, in terms of the broker obligations that you discuss in the Ohio bill, that North Carolina and several other States have had obligations that they have placed on brokers, and I know that our banking commissioner, Joseph Smith, has talked about the importance of those standards in terms of making sure that borrowers are finding their way to good products. I think the other thing that I am aware of in the Ohio law that is an interesting lesson perhaps for this committee is that yield spread premiums themselves are subject to scrutiny. So, in other words, when the loan is evaluated, to determine whether or not the incentives in place at time of origination to the mortgage brokers--in other words, how much was the mortgage broker walking away from the table with, that measurement is comprehensive. So yield spread premiums, up- front payments to the mortgage broker are all measured to determine whether additional protections are put in place. I will say that that kind of provision in other States has proven workable. So I think, while it is probably too early to judge a law that I do not think has actually been signed by the Governor yet, I think there are some good, optimistic provisions in there that could serve borrowers well. Mr. Duncan. Likewise, our organization, being a national organization, not experts in the State law, but as an economist just listening to your comments on some of the provisions, they will impose costs on the businesses within that marketplace and they could be observed in one of two ways. Either they can be observed in a shrinkage of lenders serving that market and then the overall pricing structure in the market rising for consumers and pricing some people out of the marketplace, or they could simply be passed through to consumers in the form of higher costs. But I am not sure if the law has been signed into law by the Governor yet, but we will certainly take a look at it when it takes place. Mr. Himpler. Until then, Dr. Duncan, my fear is that at the end of the day it may drive lenders out of the community that are serving the community in the State of Ohio and doing a good job there. But because of the risk of exposure they cannot afford to stay in the various communities that they are currently working in. The result from that is the possibility that folks who may have been right on the fringe, if you will, of being able to afford their first home may not be able to go to those lenders because they are no longer there, and they are forced to go to the nefarious folks that we are all concerned about, driving them directly into the hands of the people that this hearing is trying to address. Mr. Ernst. I guess the thing that I would put on the table for consideration is that there is another possibility to have allowable, will be able to be implemented, and that is that consumers will find themselves having the luxury of additional consumer protections that will make a real difference in the quality of the loans they receive. It will eventually cut down on foreclosures and help borrowers in preserving their wealth. That has been the intention of State predatory lending laws, and research from my organization, from most senior economists at the Federal Reserve Bank of St. Louis, shows that, by and large, the predatory lending laws are now leading to large decreases in access to subprime creditor to credit overall. I think we should keep in mind squarely one of the benefits that come with these laws, which are considerable--and we should, of course, take every law on its own merit--but I do not want to lose sight of the fact that these laws are, in fact, providing enormous benefits to borrowers in the States that have them. Mr. Bradford. I think you have an example of a lot of States trying to come to grips with the process of dealing with the brokers. Because even the lenders cannot control the brokers. Because if you decided not to do business with a broker because you do not like their behavior, they just go and do business with someone else. So they are not an employee. So it is one of those difficult situations where we see the key actor in the market that is often the focus point, particularly of some of the fraud and abuse, is an actor that is very hard to control. So what you really have are people exploring ways in which they can try and deal with that without shutting down the market, I think, in response to those issues. The market has become so competitive among lenders. I think legitimate lenders with good resources and decent products are going to be so competitive that if a particular broker leaves the market, other people are going to deal with that pretty rapidly. Mr. Duncan. Just to pick up on the research, I think there is also a compelling body of research that will show that, in fact, access to credit has declined in some of the States that have passed fairly punitive laws with regard to predatory lending. With regard to the flow-through, of how lenders deal with brokers, there is a market mechanism which picks that up. The secondary market today prices mortgage-backed securities and mortgage-related assets quite competitively, in fact, globally. Perhaps 15 percent of U.S. real estate assets are funded with global capital inflows to the United States. That flows through to the borrower level very quickly in this very efficient market that we have, and lenders keep a scorecard on their brokers where they evaluate the quality of the loans that come through and into the secondary market. If quality suffers, then the lender suffers with disadvantageous pricing, and they therefore maintain the scorecard to cut off brokers and push them out of the system. So there are some structures that help protect consumers that are inherent in the marketplace. Mr. Price. The gentleman's time has expired. Mr. Green. Thank you, Mr. Chairman. Mr. Price. Thank you. I want to recognize Mr. Davis for 5 minutes. But, before I do, I will have to leave, and I thank the Chair for allowing me to preside. Mr. Davis. Thank you, Mr. Price. Let me, if I can, take the panel back to the observations that I made during the opening statement, and the question was the standard that, frankly, is owed someone who comes into an office for a mortgage transaction. Let me just ask the question fairly directly, and I want to hear from people from the industry. I guess that is Dr. Duncan and Mr. Himpler. Briefly, what do you all consider the standard or the duty of care to be at present between consumer and mortgage broker or mortgage banker? Mr. Duncan. We believe that every credit-worthy borrower should get the credit in the form that they seek it and that they are qualified for. Mr. Davis. And obviously we have an issue as to whether that happens or not. Do we believe that the mortgage broker, the mortgage banker, whoever is involved on the business side of the transaction has a duty to notify the consumer of the best and optimal credit to which he or she is entitled? Mr. Duncan. Let me give you a recent anecdote as an introductory, and then I will close it. I was speaking with a reporter who reports on the housing markets, and in particular the subject was the different loan types that are available. So I asked her, do you have a mortgage? And as it turn out she had recently--this was in January of this year--she and her husband had recently purchased a home. So I asked what kind of a loan that they used. They used a 5-year, fixed-rate, interest-only loan. And I said, well, that is interesting. You are reporting on that. What are you telling people about the dangers of those loans? Because she was asking questions about their dangers. She said, well, in our case, my husband is on a low monthly base salary and receives commission and at the end of the year a bonus. So we simply pay the principal when he receives this bonus, and the loan amortizes as fast or faster than if we had taken, say, a 30-year, fixed-rate, level-payment, self- amortizing mortgage. So the question really revolves around whether it is the lender that has better insight into how the household intends to manage their finances or the household. Because the household qualified for a fixed interest rate, 5-year, interest-only loan, they could probably also get a 30-year, fixed-rate, level-payment loan. But they made a decision because of the structure of the household finances that worked better for them at that time. Mr. Davis. Mr. Ernst, Ms. Bowdler, let me pose the same question to you all. Do you believe that the standard mortgage industry is what has been described by Dr. Duncan? Ms. Bowdler. Let me start by saying that, when it comes to all of these products, subprime products, the alternative mortgage products that we have been hearing so much about, like the interest-only product that was just described, are certainly legal products that are suitable for some people, but they are not suitable for all people. And we have talked a little bit about various--subjectivity about who gets these loans and how to make all of these decisions, which I think was inherent in Dr. Duncan's anecdote. But what we do not see in the industry right now is any obligation on behalf of mortgage brokers specifically, but also on behalf of lenders, to ensure that the borrower is in fact getting a loan that they have the ability to repay that is suitable for their circumstances, or that they are not steering to a loan that is more profitable for themselves. Given the structure of the marketplace which has built-in profit incentives, I think there is definitely a need for a suitability standard that will offset that structure. Mr. Davis. Let me pose the questions--because my time is running. I want to pose a question on the industry. Dr. Duncan or Mr. Himpler, either one of you, what happens right now to a mortgage broker, for example, who falls short of what you describe as best practices in the industry? What is the punishment in effect for a broker who does not follow best practices? Is there one? Mr. Duncan. If the broker commits fraud-- Mr. Davis. Not fraud. There is a difference between fraud and best practices. It is kind of like for us. There is a difference between good practices and what will send you to jail. Mr. Himpler. I do know that a number of lenders have certain standards that they apply to brokers, and if they fall below those standards they do not use those brokers anymore. But, as was stated earlier, those brokers may go and do business with some other lender. But if I could take just a moment, Congressman, to get back to your initial question as to how the standard--I think you used the legal profession, which I am also part of, or the medical profession. I think it is important when you are talking about mortgage products, because what you are talking about is a consumer product, not a professional service. And you can tell whether or not you as a lawyer are providing the best service to your client. I am not going to be so presumptuous to determine what is the best product for a given consumer. We have heard of a couple of examples already. I am glad Ms. Bowdler mentioned the ability to repay. AFSA has that as one of its voluntary standards that all of our members have to agree to, to be a member of AFSA, is to abide by an ability to repay standard. I think that is an equitable way of going about it. But when we get into the area of suitability, we run into dangerous ground. Because whereas it might be suitable for customer ``A'', it may not be suitable for customer ``A'' who is trying to buy down in order to be able to afford more house than they might otherwise do. Mr. Davis. Let me make one observation, since my time is up. Mr. Ernst, I know you are dying to say something. Let me make my closing comment on this. What is different, though, Dr. Duncan, Mr. Himpler, all of you on the panel, by definition when these transactions happen, the prospective buyer, if you will, is obviously at an informational disadvantage, typically at a sophistication level disadvantage, at the ultimate disadvantage that he or she really wants to buy the home and does not want to really know a lot beyond that at the moment, and the person in the superior position when it comes to information, when it comes to detachment, if you will, is the person who is on the seller side or on the lender side. Given that disparity, it seems to me that if we are serious about transparency, if we are serious about accountability, you have to put a little bit more of a burden upon the lender. Mr. Himpler, I would make the point that you made about the legal profession but turn it in a slightly different direction. I agree when a client would come to me when I was practicing law they don't know much about the Federal criminal statutes or title 7 or any of those things. It is my duty to give them my best and most searching judgment, and to provide good representation, I had a duty to ask them a lot of questions. I had to be intrusive. I had to ask them more than they told me. Those who are in the realm of practicing law, if you are bound by what your clients tell you, you will commit malpractice a lot of times. You have to step beyond that. You have to know what questions to ask. You have to know how to drive your point home. That is my concern, that there is a little bit of a sense of, well, if I am a lender, I am not going to cheat anybody, but nor am I going to ask them a whole lot of questions. I will let them tell me, and I will take what they tell me and structure my advice around it. I submit to you if doctors followed that standard and lawyers followed that standard, the quality of care in both of those professions would dramatically erode. Mr. Ernst, I will let you get the last word. Mr. Ernst. I think--Congressman Davis, I think you are right, that this is an area where the suitability standard makes sense. There are direct parallels between the legal and medical profession. Moreover, I think this is an area where it is actually unfair to expect the market to unilaterally take steps without leadership from policymakers. If a given lender tries to rein in broker behavior on their own, this broker would simply take their business elsewhere. That is why it is important as we consider--I know it is under consideration--what Federal predatory lending standards can be, that those standards really help consumers, help lenders rein in instances where discretionary pricing--and this gets back to a question that was asked by Congressman Price-- where discretionary pricing is leading to bad outcomes of the sort we have documented in our study where we find that there are still significant differences with African American or Latino borrowers being 30 percent more likely to be in a higher rate loan, even after we control objective risk factors like loan evaluation. There has to be assistance from policymakers working in partnership with consumer groups, with housing counselors, and with lenders to solve these problems, that is something that is before you now. Mr. Davis. Mr. Ernst, have we adequately publicized offending companies or offending brokers? Do we do a good enough job as an economy of publicizing bad actors? Mr. Ernst. I think it may be possible that more could be done there, but I would say that there are simply so many lenders and so many mortgage brokers in the marketplace today that even providing that information is a real challenge. I know in North Carolina our banking commissioner has talked about how in the past brokers have been able to set up shop under a different name, and it is very difficult for consumers to weed their way through all of that information to find that sort of best seal of approval that I think you are suggesting. Mr. Duncan. If I could, before we have leave the subject, since this very recent CRL study is coming up repeatedly, I want to refer back to the professor's statement about the ultimate efficacy about some of these pieces of research without full information. A couple of things to make note about that study is, for example, if you intend for the model in the study to replicate the lender's behavior, then you have to replicate what it is lenders look at in terms of the data to reach their decision. One of the things that is in the study is the use of income. In fact, lenders do not use income. Lenders use the debt-to-income ratio both in the sense of the size of the potential mortgage payment to the other credit service payments and the size of the overall debt relative to overall income. Because what the lender is really interested is in the credit capacity of that borrower, as opposed to the specific income. For example, you could have a very high-income household who also has very high levels of debt and is therefore a bad credit risk. You could have a very low-income household who has very low levels of debt and therefore could be a good credit risk. Mr. Davis. Dr. Duncan, let me ask you this fairly pointed question. How much actual discrimination--how much actual race discrimination do you think goes on in the industry today? Mr. Duncan. I think we would be naive to say zero. I think you are hard pressed to find expansive data of systematic discrimination. In between the two of those, I do not know what the number is. Mr. Davis. Ms. Bowdler, do you want to answer the same question? Ms. Bowdler. I think I would echo that we would be hard pressed to come up with an exact percentage, but saying that there is not systemic discrimination is not right. We know that the structure of the mortgage market does channel harder-to- serve borrowers, which usually includes Latinos, African Americans, low income, other minority communities, and the elderly, and I think that is discrimination, and we should be concerned about that. Mr. Ernst. If I might, since our study has been brought up--and, Doug, I appreciate you giving me the opportunity to clarify this here. In our model, we control for the objective determinants of loan pricing. We did this by going out and looking, taking a survey of lenders' rates and saying what factors determine how your price is set in the market. What we saw in those sheets is that debt-to-income was the criteria for qualifying for a mortgage and, in fact, did not affect how mortgages are placed in the subprime markets. In other words, you can make the decision whether or not the borrower can pay back a loan overall, but we did not see this factor being used as a pricing factor, and that, quite simply, is why it is not included in our model. I think the second point you raised is an interesting one. To look at lenders' behavior, we need to replicate exactly what they do in the underwriting process, and we have had a number of comments here today about how no data source can allow you to do that. I think that is a fair remark, but I would say that what we sought to do was not to replicate lender behavior, but to understand what borrowers' experiences were in the marketplace. So the strength of our study is that we are able to say, after we account for businesses between credit scores, between down payment sizes, we are able to talk about how borrowers' experiences differ based on their race and ethnicity. So this is very different from the study that sets out to ask if lender ``X'', lender ``Y'' or lender ``Z'' is committing discrimination. That is not something that we set out to do. We set out to ask what borrowers' experiences are at the end of the day. Are borrowers more likely to receive a higher rate loan even after we are able to control for the differences in their credit score and the other factors that are used to set prices? And, unfortunately, the answer is that race and ethnicity still continue to have an effect. Mr. Watt. Mr. Chairman, since we were getting into a debate about the Center for Responsible Lending's study, let me make a unanimous consent request that the study itself be submitted for the record, and everybody will be able to evaluate it on its merits or lack thereof, depending on their perspectives. Chairman Bachus. [presiding] Without objection. I think at this point we have finalized the questioning, and the Chair notes that some members may have additional questions for this panel, which may be submitted 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 their responses in the record. Thank you for your attendance. This hearing is adjourned. [Whereupon, at 2:17 p.m., the subcommittee was adjourned.] A P P E N D I X June 13, 2006 [GRAPHIC] [TIFF OMITTED] 31528.001 [GRAPHIC] [TIFF OMITTED] 31528.002 [GRAPHIC] [TIFF OMITTED] 31528.003 [GRAPHIC] [TIFF OMITTED] 31528.004 [GRAPHIC] [TIFF OMITTED] 31528.005 [GRAPHIC] [TIFF OMITTED] 31528.006 [GRAPHIC] [TIFF OMITTED] 31528.007 [GRAPHIC] [TIFF OMITTED] 31528.008 [GRAPHIC] [TIFF OMITTED] 31528.009 [GRAPHIC] [TIFF OMITTED] 31528.010 [GRAPHIC] [TIFF OMITTED] 31528.011 [GRAPHIC] [TIFF OMITTED] 31528.012 [GRAPHIC] [TIFF OMITTED] 31528.013 [GRAPHIC] [TIFF OMITTED] 31528.014 [GRAPHIC] [TIFF OMITTED] 31528.015 [GRAPHIC] [TIFF OMITTED] 31528.016 [GRAPHIC] [TIFF OMITTED] 31528.017 [GRAPHIC] [TIFF OMITTED] 31528.018 [GRAPHIC] [TIFF OMITTED] 31528.019 [GRAPHIC] [TIFF OMITTED] 31528.020 [GRAPHIC] [TIFF OMITTED] 31528.021 [GRAPHIC] [TIFF OMITTED] 31528.022 [GRAPHIC] [TIFF OMITTED] 31528.023 [GRAPHIC] [TIFF OMITTED] 31528.024 [GRAPHIC] [TIFF OMITTED] 31528.025 [GRAPHIC] [TIFF OMITTED] 31528.026 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