With the heads of all four federal banking agencies talking tough and presenting a united front, expectations of a crackdown on predatory lending are running high. But one question remains: What can bank regulators really do about it?
According to Comptroller of the Currency John D. Hawke Jr., not much. "While we can insist on scrupulous observance of such laws as Truth in Lending, much of what we are seeing in this area is within the boundaries of existing law," Mr. Hawke said in a speech last week.
He said there are steps the Federal Reserve Board could take to fight predatory lending - the practice of luring marginal borrowers into loan agreements with hidden costs and high interest rates - but it has held back. The Home Ownership and Equity Protection Act of 1994 gave the Fed sole authority to declare certain lending practices "unfair and deceptive," and therefore illegal.
But Fed officials counter that most of the practices defined as predatory lending are already illegal, and do not require the central bank to define them as such. And like the OCC, the Fed points to another agency, the Federal Trade Commission.
"Fraud and deception are illegal, and the FTC prosecutes that now," a Fed spokesman said. "The question is: How do you go beyond that and define types of transactions that are not per se deceptive without also having an impact on legitimate transactions."
Daniel Immergluck, senior vice president of the Woodstock Institute, a Chicago-based nonprofit that analyzes housing policy, agreed that bank regulators may not be in the best position to attack predatory lenders.
"If I had to pick one federal agency that could do something about predatory lending, I would say the Department of Justice. "That's who has the most clout," Mr. Immergluck said.
In fact, the Justice Department's civil rights division announced a predatory-lending crackdown last week at a rally organized by Acorn, the Association of Community Organizations for Reform Now. Bill Lann Lee, acting director of the civil rights division, said he has hired five lawyers, including a former bank vice president, to target predatory lenders.
If bank regulators can do anything to curtail predatory lending by nonbank financial institutions, it is removing incentives banks have to finance those who engage in it.
Groups like Acorn and the Woodstock Institute particularly object to banks' earning Community Reinvestment Act credit for buying securitized loans obtained through predatory practices.
Federal Deposit Insurance Corp. Chairman Donna Tanoue addressed the issue in a recent speech, promising examiners would be instructed to look into the origin of banks' securitized loan portfolios, and deny CRA credit for those bought from predatory lenders.
In the end, though, some observers claim, the most effective way to combat predatory lending may be through legislation.
A bill expected this week from the House Banking Committee member Rep. Janice D. Schakowsky, D-Ill., and one expected this week from the Committee's ranking Democrat, Rep. John J. LaFalce of New York, would strengthen federal prohibitions against specific predatory lending practices by banning certain fees and charges, eliminating transactions structured specifically to avoid HOEPA restrictions, and making it illegal to require borrowers to submit to binding arbitration.
Editor's Note: Each link opens a new browser window. We have no control over the content or availability of sites not part of American Banker Online.