REVIEW OF THE NATIONAL BANK PREEMPTION RULES

S. HRG. 108–864

REVIEW OF THE NATIONAL

BANK PREEMPTION RULES

HEARINGS

BEFORE THE

COMMITTEE ON

BANKING, HOUSING, AND URBAN AFFAIRS

UNITED STATES SENATE

ONE HUNDRED EIGHTH CONGRESS

SECOND SESSION

ON

THE OFFICE OF THE COMPTROLLER OF THE CURRENCY RULEMAKINGS

PERTAINING TO THE APPLICABILITY OF STATE LAWS TO NATIONAL

BANKS

APRIL 7, 2004

Printed for the use of the Committee on Banking, Housing, and Urban Affairs

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24–076 PDF 2005

S. HRG. 108–864

REVIEW OF THE NATIONAL

BANK PREEMPTION RULES

HEARING

BEFORE THE

COMMITTEE ON

BANKING, HOUSING, AND URBAN AFFAIRS

UNITED STATES SENATE

ONE HUNDRED EIGHTH CONGRESS

SECOND SESSION

ON

THE OFFICE OF THE COMPTROLLER OF THE CURRENCY RULEMAKINGS

PERTAINING TO THE APPLICABILITY OF STATE LAWS TO NATIONAL

BANKS

APRIL 7, 2004

Printed for the use of the Committee on Banking, Housing, and Urban Affairs

(

Available at: http://www.access.gpo.gov/congress/senate/senate05sh.html

COMMITTEE ON BANKING, HOUSING, AND URBAN AFFAIRS

RICHARD C. SHELBY, Alabama, Chairman

ROBERT F. BENNETT, Utah

WAYNE ALLARD, Colorado

MICHAEL B. ENZI, Wyoming

CHUCK HAGEL, Nebraska

RICK SANTORUM, Pennsylvania

JIM BUNNING, Kentucky

MIKE CRAPO, Idaho

JOHN E. SUNUNU, New Hampshire

ELIZABETH DOLE, North Carolina

LINCOLN D. CHAFEE, Rhode Island

PAUL S. SARBANES, Maryland

CHRISTOPHER J. DODD, Connecticut

TIM JOHNSON, South Dakota

JACK REED, Rhode Island

CHARLES E. SCHUMER, New York

EVAN BAYH, Indiana

ZELL MILLER, Georgia

THOMAS R. CARPER, Delaware

DEBBIE STABENOW, Michigan

JON S. CORZINE, New Jersey

KATHLEEN L. CASEY, Staff Director and Counsel

STEVEN B. HARRIS, Democratic Staff Director and Chief Counsel

MARK F. OESTERLE, Counsel

MARTIN J. GRUENBERG, Democratic Senior Counsel

PATIENCE R. SINGLETON, Democratic Counsel

JOSEPH R. KOLINSKI, Chief Clerk and Computer Systems Administrator

GEORGE E. WHITTLE, Editor

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(III)

CONTENTS

WEDNESDAY, APRIL 7, 2004

Page

Opening statement of Chairman Shelby ................................................................ 1

Opening statements, comments, or prepared statements of:

Senator Sarbanes .............................................................................................. 2

Senator Corzine ................................................................................................ 8

Senator Allard ................................................................................................... 9

Senator Carper ................................................................................................. 26

Senator Schumer .............................................................................................. 31

WITNESSES

John D. Hawke, Jr. Comptroller of the Currency, U.S. Department of the

Treasury ................................................................................................................ 4

Prepared statement .......................................................................................... 55

Response to written questions of:

Senator Shelby ........................................................................................... 307

Senator Sarbanes ...................................................................................... 312

Senator Johnson ........................................................................................ 314

Senator Miller ............................................................................................ 317

Roy Cooper, Attorney General, Department of Justice, State of North

Carolina ................................................................................................................ 10

Prepared statement .......................................................................................... 109

Response to written questions of:

Senator Johnson ........................................................................................ 322

Senator Miller ............................................................................................ 323

Gavin M. Gee, Director of Finance, State of Idaho, on Behalf of the Conference of State Bank Supervisors ...................................................................... 13

Prepared statement .......................................................................................... 121

Response to written questions of:

Senator Johnson ........................................................................................ 325

Senator Miller ............................................................................................ 326

Martin Eakes, Chief Executive Officer, Center for Responsible Lending ........... 39

Prepared statement .......................................................................................... 160

Response to written questions of Senator Johnson ....................................... 327

Joe Belew, President, Consumer Bankers Association ......................................... 43

Prepared statement .......................................................................................... 193

Walter T. McDonald, President, National Association of Realtors® .................... 44

Prepared statement .......................................................................................... 210

William M. Isaac, Chairman, The Secura Group .................................................. 46

Prepared statement .......................................................................................... 224

Arthur E. Wilmarth, Jr., Professor of Law, George Washington University

Law School ............................................................................................................ 48

Prepared statement .......................................................................................... 229

James D. McLaughlin, Director, Regulatory and Trust Affairs, American

Bankers Association ............................................................................................. 51

Prepared statement .......................................................................................... 289

ADDITIONAL MATERIAL SUPPLIED FOR THE RECORD

Operating Subsidiaries of National Banks Chart by the Comptroller of the

Currency ............................................................................................................... 330

Wildcard Authority & Parity Statues Chart from the 2002 Profile of StateCharted Banking by the Conference of State Bank Supervisors ..................... 349

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REVIEW OF THE NATIONAL BANK

PREEMPTION RULES

WEDNESDAY, APRIL 7, 2004

U.S. SENATE,

COMMITTEE ON BANKING, HOUSING, AND URBAN AFFAIRS,

Washington, DC.

The Committee met at 2:05 p.m., in room SD–538, Dirksen Senate Office Building, Senator Richard C. Shelby (Chairman of the

Committee) presiding.

OPENING STATEMENT OF CHAIRMAN RICHARD C. SHELBY

Chairman SHELBY. The hearing will come to order. I would like

to thank everyone for being here today.

The purpose of this hearing is to examine the Office of the Comptroller of the Currency, OCC’s, recently issued rules on preemption

and visitorial powers. While these may be very technical provisions, I believe they merit our close consideration because of the

significant consequences for our dual banking system.

In order to get a full appreciation of these issues I think it is important to ask some basic questions about the rules such as, why

are they necessary? Was the OCC acting within its legal authority

when it issued them? What new powers or responsibility do they

provide to the OCC? What powers or responsibilities do they take

away from the States? What impact, if any, will the new rules have

on the development and enforcement of consumer protection standards? Finally, in the absence of such rules, what, if any, negative

consequences would there have been for national banks and their

customers?

I look forward to hearing from the panelists on these and other

questions that will come from the Committee.

Additionally, I also look forward to examining some of the larger

issues implicated by these rules. For example, what is the appropriate role of State governments in the regulation of financial services within a national economy? Do these rules in any way affect

such roles? Do these rules create negative consequences for the operation of the dual banking system?

In the end, I believe that it is extremely important for the Committee to examine all these questions so that we can have a full

appreciation of all the implications of these new rules.

Senator Sarbanes.

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STATEMENT OF SENATOR PAUL S. SARBANES

Senator SARBANES. Thank you very much, Mr. Chairman. I am

going to take a moment or two here, with the Chairman’s indulgence.

Chairman SHELBY. Proceed as you wish.

Senator SARBANES. I am very pleased to welcome this panel of

witnesses before the Committee this afternoon to testify on the recently adopted OCC rules on national bank preemption and

visitorial powers. Mr. Chairman, I want to thank you for holding

this hearing.

Chairman SHELBY. Absolutely.

Senator SARBANES. The actions by the OCC have significant and

far-ranging consequences and deserve close examination by the

Congress.

Let me state at the outset that I am opposed to the actions of

the OCC. Last November, I joined in a letter with my Democratic

colleagues on this Committee in which we urged the OCC to defer

any further rulemaking on the preemption of State laws at that

time and, instead, to examine vigorously claims of predatory lending and other violations of State consumer protection laws by national banks and their operating subsidiaries. In that letter we

stated,

Congress has previously voiced its intent that national banks not be immune from

coverage by State laws. The House-Senate Conference Committee report on the 1994

Riegle-Neal Interstate Branching and Bank Efficiency Act stated that, ‘‘States have

a strong interest in the activities and operations of depository institutions doing

business within their jurisdictions, regardless of the type of charter an institution

holds. In particular, States have a legitimate interest in protecting the rights of

their consumers, businesses, and communities.’’ In enacting the Gramm-Leach-Bliley Act in 1999, Congress affirmed the Supreme Court standard in Barnett Bank

that State laws apply to national banks unless those laws serve to prohibit or significantly interfere with the national banks’ Congressionally authorized powers.

Regrettably, the OCC chose to finalize its proposed regulations in

January. As a general matter, my inclination is to defer to bank

regulators in the exercise of their authority, especially if it relates

to safety and soundness. They are charged with making an independent judgment, presumably with the public interest foremost in

mind. And I understand that those judgments may not always

please everyone.

However, the OCC’s actions in this instance led me to depart

from this general approach. First, the OCC’s actions do not relate

directly to the safety and soundness of the financial system. They

instead go to the relationship between Federal and State-chartered

banks and thrifts, and the historic balance of responsibilities they

share. Second, the OCC’s actions have led to such a unanimous and

strong outcry from State officials as to suggest that fundamental

damage has been done to the Federal-State relationship. The National Association of Attorneys General, the Conference of State

Bank Supervisors, the National Governors Association, the National Conference of State Legislatures have all strongly opposed

the OCC’s action. Third, the OCC’s actions have been opposed by

consumer, civil rights, and community groups from across the country as an assault on consumer protection as applied to nationally

chartered banks and their State-chartered operating subsidiaries.

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The intensity of opposition from the State officials and consumers,

civil rights, and community groups has been exceptionally strong.

The attorneys general of all 50 States submitted a comment letter to the OCC on October 6 expressing their opposition to the preemption and visitorial powers rules and urging the OCC to defer

further action on them. I want to quote from that letter because

it summarizes the concerns raised about the actions of the OCC.

The OCC’s current proposal, coupled with the other recent OCC pronouncements

on preemption, represent a radical restructuring of Federal-State relationships in

the area of banking. In recent years, the OCC has embarked on an aggressive campaign to declare that State laws and enforcement efforts are preempted if they have

any impact on a national bank’s activities. The OCC has jealously pushed its preemption agenda into areas where the States have exercised enforcement and regulatory authority without controversy for years.

The OCC’s preemption analysis is one-sided and self-serving. The OCC has paid

little deference to well-established history and precedent that has allowed the States

and the OCC to co-exist in a dual regulatory role for over 130 years. That precedent

has upheld this Nation’s policy that national banks are subject to State laws unless

the State laws significantly impair the national banks’ powers created under Federal law. The OCC is destroying that careful balance by finding ‘‘significant interference’’ or ‘‘undue burden’’ whenever State law has any effect on a national bank.

In the area of predatory mortgage lending, the OCC’s actions are particularly disappointing. Instead of commending the States’ efforts, the OCC has gone to great

lengths to attack them and to declare that they are inapplicable to national banks

and their operating subsidiaries. In their place, the OCC has recommended minimal

protections that fail to address many of the worst predatory lending abuses.

Also on October 6, a coalition of 19 consumer, civil rights, and

community groups, including the Consumer Federation of America

and the Leadership Conference on Civil Rights, sent a comment

letter to the OCC in which they stated, in part, and I quote:

In 1994, Congress passed the Homeownership and Equity Protection Action to

protect borrowers of high-cost loans from predatory lending practices. Unfortunately, the scourge of predatory lending did not go away and, in fact, increased in

tandem with the explosion of subprime lending. Recognizing this continuing problem, various States have developed increasingly effective approaches to eradicating

predatory lending, without drying up access to reasonably priced subprime mortgage

credit. This is federalism as its best.

Your proposal to preempt the State antipredatory lending laws is, at best, misguided, and at worst, a blatant attempt to increase the power of the OCC at the

expense of homeowners, the sovereignty of the States, and the intent of Congress.

We believe this proposal to be fundamentally flawed both in its assessment of the

impact of State antipredatory lending laws and as to the powers Congress entrusted

to the OCC. We urge the OCC to scrap its proposed preemption of State predatory

lending laws, while continuing to develop its own advisory guidance to ensure that

national banks are not engaged in predatory lending.

And, finally, Dudley Gilbert, the Legal Counsel for the Oklahoma

State Banking Department, wrote an article in the American Banker on February 20 entitled ‘‘OCC’s Preemption Rule is About Keeping Market Share,’’ which provides a perspective on the OCC’s actions from the viewpoint of a State banking regulator. And in that

article, he says,

The OCC’s preemption rule seems to be more about protecting its remaining

multi-State megabanks or attracting new ones to the fold than about ‘‘clarifying’’ a

140-year-old law. The OCC standard for preemption has been built on a political

platform for the promotion of its charter.

The point was echoed in a Wall Street Journal article on January

28, 2002 entitled ‘‘Friendly Watchdog: Federal Regulator Often

Helps Banks Fighting Consumers.’’ In that article, they stated,

The OCC solicitousness toward the businesses it oversees stems in part from its

need to compete for their loyalty. In an uncommon arrangement, banks can choose

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either a State or Federal regulator, and the selection has financial consequences.

The OCC and State banking departments subsist entirely on fees paid by the institutions they regulate.

The Comptroller has asserted that State officials and consumer

groups are all wrong, that the OCC is simply codifying existing judicial interpretation in its regulations, and that the OCC is actually enhancing consumer protection through its regulatory and enforcement actions. I must say I find that position very difficult to

understand and accept. I think the criticisms that have been leveled by the State officials and the consumer groups seem to me to

be right on point. And, of course, we will explore that matter in the

course of this hearing.

Thank you very much, Mr. Chairman.

Chairman SHELBY. Thank you, Senator Sarbanes.

Our first panel is composed of three people: John Hawke, Comptroller of the Currency; Roy Cooper, Attorney General, State of

North Carolina; and Gavin Gee, Director of Finance, Idaho Department of Finance. I welcome all of you to the Committee. Your written testimony will be made part of the record in its entirety. We

will start with Mr. Hawke.

STATEMENT OF JOHN D. HAWKE, JR.

COMPTROLLER OF THE CURRENCY

U.S. DEPARTMENT OF THE TREASURY

Comptroller HAWKE. Thank you, Mr. Chairman and Ranking

Member Sarbanes. I appreciate the invitation to discuss the OCC’s

recently issued rules on preemption and visitorial powers. I want

to start by emphasizing a few overarching considerations as background for the discussion of the rules themselves.

First, national banks and their subsidiaries are highly regulated

and closely supervised. While we occasionally confront instances of

abusive conduct at our banks, the overwhelming number of our

banks operate in conformity with the law and with recognized

standards of sound banking and fair practices. Because of this, it

is not at all surprising that the State attorneys general virtually

unanimously have repeatedly stated that predatory lending is not

a problem in the regulated banking system.

Second, the OCC is committed to protecting and helping customers of national banks, and we have ample resources and formidable enforcement powers to carry out that commitment. We have

a world-class consumer assistance group that resolves literally tens

of thousands of inquiries and complaints every year. And where

consistent or persistent problems have arisen, our track record

shows that we will use our supervisory and enforcement powers

promptly and effectively to fix them. With the formal enforcement

powers that we have, plus the authority and influence that our examiners exercise over the banks they supervise, I believe we have

an unmatched ability to afford consumers the protections that we

all want for them.

Third, we recognize that our counterparts at other agencies and

in State law enforcement share this commitment to protect consumers, and we welcome opportunities to share information and to

cooperate and coordinate with them to address customer complaints and consumer protection issues. Through a coordinated and

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cooperative approach to the remedying of abuses, I believe we can

achieve a high level of protection for consumers.

With that preamble, let me summarize what the OCC’s new regulations do and what they do not do. While I recognize that there

are some significant differences of opinion on many of the issues

involved, I am concerned that there has been widespread misunderstanding and mischaracterization of what we have done.

The first regulation, which I will call the preemption rule, codifies principles that have been established in almost 200 years of decisions by the Supreme Court and lower Federal courts, that have

been applied in innumerable interpretations and rulings of the

OCC over many years, and that have been embodied in regulations

of our sister agency, the Office of Thrift Supervision, for many

years. The regulation provides clear and predictable guidance to

national banks regarding the standards that apply to core banking

activities: lending and deposit-taking.

The rule is based on the well-established principles that the

States do not have the constitutional authority to limit or condition

the exercise of powers that Congress has conferred on the instrumentalities that it creates, and that a State law cannot apply to

a national bank if it obstructs, impairs, or conditions the bank’s

ability to exercise those powers unless Congress has provided that

it should apply. The regulation then lists specific types of State

laws that are preempted, substantially mirroring those already preempted by OTS.

It is important to emphasize what the regulation does not

change, since some confusion may exist on this score. It does not

establish brand-new standards or principles of preemption. It does

not preempt State laws other than those listed. It does not immunize national banks from complying with a host of State laws that

form the infrastructure of doing the business of banking, such as

contract law, tort law, public safety laws, and generally applicable

criminal laws. It does not preempt antidiscrimination laws. It does

not extend to activities authorized for financial subsidiaries of national banks, which can exercise powers that are not permissible

for the bank itself. It does not impinge on the functional regulation

framework that Congress set in place in the Gramm-Leach-Bliley

Act. It does not allow national banks to charge higher rates of interest than they previously could. It does not authorize any new

national bank powers, such as real estate brokerage. And it makes

no changes to existing OCC rules governing the activities of operating subsidiaries.

Our second rule, the visitorial powers rule, amends an existing

regulation implementing a Federal statute that is as old as the national banking system itself and that grants the OCC exclusive authority to supervise, examine, and regulate the national banking

system. Congress reemphasized this principle of exclusive visitorial

powers only recently in the Riegle-Neal Interstate Branching law

by explicitly providing that, to the extent State consumer protection laws apply to the interstate branches of national banks—that

is, where those laws are not preempted under the longstanding

principles I have referred to—the OCC is the exclusive enforcement

authority for such laws with respect to national banks.

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The visitorial powers statutes provide no exception for the States

to regulate the banking activities of national banks through enforcement actions, and I believe it is well-recognized by State law

enforcement officials that Federal law precludes them from taking

administrative enforcement actions against a national bank with

respect to its banking activities. What is at issue here is solely

whether State officials can do through the courts what they cannot

do directly, and our visitorial powers rule simply sets forth our understanding of the basic statute as precluding the exercise of similar visitation powers by resort to the courts.

The second, and equally important, issue that I want to address

is the effects of these rule changes. In addition to clarifying which

State laws apply and which do not apply to national banks, the

rule also puts in place additional focused standards to protect customers of national banks from unfair, deceptive, abusive, or predatory lending practices. These new standards apply nationwide, to

all national banks, and provide additional protections to national

bank customers in every State, including those States that do not

have their own predatory lending standards. The rule does not

leave customers of national banks or their subsidiaries vulnerable

to predatory lending practices. And I stress that the State Attorneys General have repeatedly said that the problems of predatory

lending are not problems in the regulated banking system; they are

problems that occur in the unregulated segment of the financial

services industry.

The regulation first provides that national banks may not make

consumer loans based predominantly on the foreclosure or liquidation value of a borrower’s collateral. This will target the most egregious aspect of predatory lending, where a lender extends credit

based not on a reasonable determination of a borrower’s ability to

repay, but on a lender’s calculation of its ability to seize the borrower’s accumulated equity in his or her home. And I should add

that is a standard that is easy for bank examiners, and traditional

for bank examiners, to examine for and to enforce.

The regulation also specifically provides that national banks

shall not engage in unfair or deceptive practices within the meaning of Section 5 of the Federal Trade Commission Act in their lending activities. The OCC was the first Federal banking agency to

assert the power to take enforcement actions for violations of Section 5, a position that our sister agencies have recently adopted.

These rules supplement the very extensive guidance that we published last year admonishing our banks to stay well clear of predatory practices and telling them in no uncertain terms what we

would do if we found such practices in any of our banks. I believe

our rules and advisories on predatory lending go well beyond anything that any other bank regulatory authority has done in this regard. And I commend those advisories to the attention of anybody

interested in this subject because they provide a very comprehensive definition of predatory lending and a very comprehensive mandate to our banks about how to steer clear of predatory lending.

Some may ask, why not allow State and local predatory lending

laws to apply as well? Isn’t more regulation better?

To that I would answer, not unless there has been a demonstration that more regulation is needed because the existing regulatory

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scheme does not work. That is not the case with respect to the national banking system. Again, whatever our differences with the

State Attorneys General are, they have repeatedly stated that the

problem of predatory lending is largely confined to unregulated,

nondepository institutions and has not been in evidence in regulated banks or their subsidiaries. And, as I said, this is not at all

surprising. National banks and their subsidiaries are highly regulated and closely supervised. The largest national banks have large

teams of examiners on premises at all times.

Our approach to predatory lending is a comprehensive, ongoing,

integrated supervisory approach focused on preventing predatory

practices, not on banning or restricting specified loan products

based on their terms. We have substantial resources available nationwide to make sure that our supervision, in this and other

areas, is effective.

Additional regulation brings with it added costs which may lead

to higher prices for consumers. It may also have undesirable collateral consequences. For example, there is a vigorous debate going on

in the economic literature as to whether State predatory lending

laws reduce the availability of nonpredatory subprime credit. I

think there is widespread agreement, however, that these laws

have reduced the volume of subprime lending, and it is far from

the case that all subprime lending is predatory. Indeed, the expansion of the subprime market has played an extremely important

role in our record level of homeownership and in making credit

available to segments of the population, particularly minorities,

who in the past have not had ready access to credit.

State and local laws that increase a bank’s costs and its potential

liabilities in connection with higher-risk subprime loans and that

result in constrictions in the secondary markets, which we have

seen, inevitably will cause some legitimate lenders to conclude that

the costs and risks are not worth it. The result is diminished credit

availability, and credit options available to a segment of potentially

creditworthy subprime borrowers will be reduced.

Paradoxically, when such well-intentioned laws cause regulated

banks to reduce their participation in the subprime market, they

are deterring the most highly regulated segment of the industry,

those subject to CRA requirements and those most likely to conform to accepted practices and standards. We believe our approach

does not constrict credit availability from legitimate, highly regulated lenders and effectively protects customers of national banks

and their subsidiaries against predatory lending practices.

Chairman SHELBY. Mr. Hawke, do you have much more?

Comptroller HAWKE. Just one paragraph, Mr. Chairman.

Chairman SHELBY. You are about finished?

Comptroller HAWKE. Yes.

In conclusion, we believe that our new rules are legally sound,

that they enable national banks to operate in a manner fully consistent with the character of their Federal charter. Most importantly, coupled with the strong oversight and enforcement powers

that the OCC can and will bring to bear, they do not leave national

bank customers exposed to abusive practices. We share with our

colleagues in the States a commitment to assuring that national

banks’ treatment of their customers meets the highest standards,

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and I am confident that if we work in cooperation and coordination,

we can all fulfill that commitment.

Senator SARBANES. I am curious. Was the ‘‘in conclusion’’ in the

statement, or was that a quick add-on?

[Laughter.]

Comptroller HAWKE. No, it is right here in the text.

Senator SARBANES. Okay.

Chairman SHELBY. Mr. Hawke, we did not want to rush you, but

we have 2 or 3 minutes to vote, and Senator Corzine already has.

Comptroller HAWKE. The clock is not working here.

Chairman SHELBY. I was going to recognize him to make any

opening statement, as long as he wanted to take, because we would

like to hear everybody, Mr. Cooper and Mr. Gee, as soon as we get

back. Can you do that?

Senator CORZINE. Sure, Mr. Chairman.

Chairman SHELBY. Okay. You are recognized.

STATEMENT OF SENATOR JON S. CORZINE

Senator CORZINE. [PRESIDING.] Thank you, Mr. Chairman.

This is the only time the guy on the far right-hand corner——

Senator SARBANES. It is all yours, Jon.

[Laughter.]

Senator CORZINE. Now you are seeing what poker is like, right?

Senator SARBANES. Don’t get carried away.

[Laughter.]

Senator CORZINE. I think there might be about 25 years between

me and thee. We will work on it.

Mr. Chairman, and to the witnesses, I want to thank all of you

for being here, and I want to thank the Chairman for holding this

hearing. This really is an important issue, this preemption of State

consumer protection laws. A number of us feel quite strongly about

it, and I want to thank Comptroller Hawke for both your testimony

and, I think, a willingness to listen, if not necessarily agree on

some of the directions we are taking here.

Let me start by saying I am deeply concerned about the OCC’s

action. The broad nature of this rule has profound implications for

our dual banking system as well as the ongoing relationship between the Federal Government and the States. I certainly hear this

on a regular basis with my people back in Trenton. Moreover, this

rule has critical implications for consumer protections, which I

think a number of people will speak to, and may well prove detrimental to that important effort.

Some have suggested that the OCC’s actions stem from nothing

more than a power grab. I am not sure I associated myself totally

with that, but it certainly is something that is widely discussed in

the press, the media, in general, and I would cite The Wall Street

Journal friendly watchdog chart that I have included here, which

I think is reflective of some of both the editorial comment and discussion that we see surrounding this topic.

While I do not accept that this is the sole purpose for the action,

it does strike me curious that the only groups that have come out

in support of the OCC action, as far as I can tell, are the very

banks that are regulated.

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Given these broad concerns, a decision of this magnitude in my

view should only have been made after an exhaustive review and

deliberations by Congress, this Committee, and both of the issues

that I talked about have been raised with the OCC by Members of

Congress from both sides of the aisle. In November, every Democratic Member of this Committee signed a letter to Comptroller

Hawke that expressed concerns regarding the rationale, the pace,

and implications of the OCC proposal. Included in that letter was

the request that the agency defer final rulemaking until the implications of the rule on State enforcement of predatory lending laws

could be better ascertained.

In the House, Sue Kelly, the Republican Chairwoman of the

House’s Financial Services Subcommittee on Oversight Investigations, and a bipartisan group of Members wrote the Agency in December also asking them to delay implementation of the rules until

Congress could hold hearings to review the proposal and provide an

appropriate signal of intent.

Unfortunately, those letters have not been attended to, and as I

think all of you know, similar concerns have been expressed by the

Nation’s Governors, Attorneys General, State legislators, et cetera.

I think this needs to be reviewed, and the role of Congress in establishing the laws that govern our dual banking system and this

Committee and its oversight need to be taken into account. And,

you know, I think this is important in making sure that we maintain the confidence between the OCC and those of us who are responsible for oversight.

I hope that we can figure out a way to restore Congress’ voice

in this, and consideration, and I think there is a legitimate concern

about the implications for the ability of our State legislatures and

State governments to be involved in this dual banking system in

a credible, strong way. I certainly think it is important for consumers. I am certainly going to be asking that we have a larger

role in this, and I think it is important that this get an additional

oversight look here among the Committee.

I guess I am about to transfer my sole moment in the sunlight

here to Senator Allard, since he is a little closer to the middle and

on the majority side. The Chairman asked me to chair until they

return, but recognizing protocol, I will be a very generous fellow

and hand that all back.

[Laughter.]

Then I will be able to ask Senator Allard whether I also could

submit a letter from the New Jersey State Department of Banking

and Insurance that challenges the conclusions reached by the National Home Equity and Mortgage Association concerning the impact of the New Jersey Homeownership Security Act is having on

New Jersey’s subprime market. I think there is a lot of reason for

serious, objective study of the impact on these markets, and I think

there is a good report along those lines.

Senator ALLARD. I have no objection and I hear no objection.

Senator CORZINE. Thank you, Mr. Chairman.

STATEMENT OF SENATOR WAYNE ALLARD

Senator ALLARD. [PRESIDING.] I will go ahead and give my statement for the record, and I see that we still have a vote going. We

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are waiting to complete testimony until the Chairman and the

Ranking Member get back.

I would like to thank the Chairman for holding this hearing

today to discuss two rules recently promulgated by the Office of the

Comptroller of the Currency regarding preemption and visitorial

powers of national banks. One of the rules clarifies the extent to

which the operations of national banks are subject to State law; the

other rule concerns the authority of the OCC to examine, supervise,

and regulate national banks. I look forward to discussing the

OCC’s reasons for promulgating these rules as well as the potential

implications of the two rules with respect to the country’s economic

system and particularly the Nation’s housing markets.

The OCC has not only a difficult but also a very important duty

to regulate lending and investment activity of national banks. With

regulatory and supervisory authority over 2,200 national banks

and 56 branches of foreign banks in the United States, the OCC

plays an integral role in ensuring the safety and soundness of the

national banking system, while ensuring fair and equal access to

financial services for all Americans. With the broad-ranging authority granted to the OCC to approve or deny applications for new

charters, approve or deny structural changes, issue cease-and-desist orders, and issue rules and regulations governing bank investment and lending, today’s oversight hearing that will examine two

recently published rules is certainly appropriate.

As Chairman of the Housing Subcommittee, I am concerned

about how these new rules will impact the housing markets and

predatory lending practices. I am hopeful that they will fulfill the

OCC’s mission of protecting consumers while contributing to an effective system of banking that has served our Nation so well.

Again, I would like to thank Comptroller Hawke and each of our

witnesses for taking the time to testify before the Committee today,

and I do look forward to your testimony.

What I am going to do, Senator Corzine, is go ahead and put us

in recess until the Chairman and Ranking Member both get back.

Then you and I can head down and vote. The second vote is apt

to be a short vote. Instead of being a 15-minute vote, it will be a

10-minute vote. You and I can head on down. I expect the Chairman and the Ranking Member to be here shortly. So, I would suggest that if you want to stand and stretch as though you are in the

seventh inning, go ahead and do your standing and stretching. But

I would not go very far because as soon as they get here, they will

want to take right off with the hearing.

The hearing is in recess.

[Recess.]

Chairman SHELBY. The hearing will come back to order.

Mr. Cooper, if you will proceed, just like we never went to vote.

Thank you.

STATEMENT OF ROY COOPER

ATTORNEY GENERAL

DEPARTMENT OF JUSTICE, STATE OF NORTH CAROLINA

Mr. COOPER. Thank you, Mr. Chairman, and Members of this esteemed Committee. Thank you for allowing me to be and addressing this critical issue.

11

One spectacular result of these sweeping new rules proposed by

the OCC is the rare harmony being sung by State attorneys general across the country.

Chairman SHELBY. Is that all 50?

Mr. COOPER. All 50 of us are on the same page.

Chairman SHELBY. Democrats and Republicans——

Mr. COOPER. Yes, sir, bipartisan.

Chairman SHELBY. —on the same page?

Mr. COOPER. Yes, sir.

These rules are wrong both as a matter of law and as a matter

of public policy. I have submitted my written comments that discuss my objections, and let me quickly outline the major ones.

First, these rules significantly diminish important protections for

American consumers. Second, they undermine creative and State

efforts to combat predatory lending. And, third, they ignore Congressional intent and misinterpret Supreme Court precedent.

Simply put, these new OCC rules put consumers at risk by taking 50 cops off the beat. That is absolutely the heart of the matter.

Thousands of State attorneys general’s staffers across the country

are helping consumers with their problems, mediating disputes,

and securing refunds for people who have been wronged. Over the

years, most State consumer protection laws were applied to national banks and their affiliates without controversy. There have

been problems with some national banks, and State action has

been taken.

National banks knew they were expected to abide by State law,

and attorneys general provided the enforcement—until now. Now

the OCC is saying we can do the job by ourselves. We alone can

protect the tens of millions of national bank customers across the

country.

That is simply not realistic. For the last 2 years, in North Carolina, my consumer office alone received over 1,000 formal written

complaints regarding national banks, along with thousands more

phone calls. And this is happening in attorneys general’s offices

across the country. We welcome the OCC to work with us in addressing these complaints, but the OCC cannot do this alone and

do it effectively.

Now, although I do not believe the OCC wants its members to

break the law, I have no confidence that they will provide adequate

consumer protection by themselves. The OCC is actively recruiting

banks into its fold, saying that they will not be bothered by State

predatory lending laws. In addition, The Wall Street Journal recently documented how the OCC consistently sided with national

banks and against consumers in recent legal disputes. Consumers

must have the confidence that decisionmakers and regulators will

be fair and that they will go to bat for them if they have been

ripped off.

My next concern is that not only do these new rules undermine

State predatory lending laws, but they also fail to address the most

abusive practices forbidden by State laws. These include unjustified

origination fees, deceptive discount points, excessive prepayment

penalties, loan flipping, and financing of single-premium credit insurance. These practices are sometimes technical and difficult for

the average borrower to understand, but there is a reason that the

12

phrase ‘‘predatory lending’’ is used to describe them. In order to be

effective, there must be specific restrictions under the law to fight

each of these practices, and the OCC rules just do not do this.

Finally, I would like to counter very briefly some points the OCC

makes when justifying these new rules. First, the OCC claims that

it is merely exercising longstanding powers and codifying existing

law. Do not be fooled. These rules are a dramatic change. They far

exceed the preemption standard set by the Supreme Court in the

Barnett Bank case, and they ignore specific Congressional acknowledgment of the role of States in regulating national banks.

The OCC also argues that these rules are necessary so that

banks can operate under consistent, uniform national standards.

The national banks do not need the OCC to insulate them from

their obligation to be good corporate citizens in their respective

States. When North Carolina passed our groundbreaking Predatory

Lending Act, our national banks were right there at the table supporting the effort because they knew that predatory lending was a

scourge that had to be removed. They saw the case of Freddie Rogers, a 56-year-old Durham school bus driver. For 10 years, he made

his mortgage payments, but when he wanted to refinance because

he had bad well water, he discovered that he had paid down only

$165 on the principal. He was a victim of junk fees, unneeded insurance, and front-loaded payments—a predatory loan. And making $8.24 an hour, he could never get ahead.

Our predatory lending law in North Carolina works. Recent studies have shown the law has saved consumers over $100 million in

the first year and that subprime credit is still readily available.

The only lenders we have run out of North Carolina are those that

are making predatory loans, and I say good riddance to them.

Our law has created a road map for lending practices across the

country. For example, we were the first State to outlaw single-premium credit insurance, which was a useless product that overcharged consumers. It was considered controversial at the time, yet

within 2 years, all major subprime lenders stopped offering this

overpriced product to consumers.

We are now seeing lenders across the country voluntarily adopting a number of provisions of North Carolina’s predatory lending

law. Please do not let the OCC take away the effectiveness and the

creativity of the States in fighting these problems.

In conclusion, as a State Attorney General, I know that my colleagues and I would vastly prefer a cooperative relationship with

the OCC, just as we have with other Federal agencies. Unfortunately, with these preemption rules, the OCC has sought to eliminate that cooperation.

As attorneys general, we will not stand by and let these rules

take effect without a judicial fight. But the best place to deal with

this issue is right here in Congress. In fact, Senator Edwards from

my home State has introduced a resolution to repeal these rules.

I would assume that there are other Members of Congress who are

looking at this effort as well. And I would encourage these efforts

to let us step back and look at what we are doing.

Thank you very much, Mr. Chairman.

Chairman SHELBY. Mr. Gee.

13

STATEMENT OF GAVIN M. GEE

DIRECTOR OF FINANCE, STATE OF IDAHO

ON BEHALF OF

THE CONFERNECE OF STATE BANK SUPERVISORS

Mr. GEE. Thank you, Chairman Shelby, Senator Sarbanes, Members of the Committee. My name is Gavin Gee. I am the Director

of the Department of Finance for the State of Idaho, and I am here

today testifying on behalf of the Conference of State Bank Supervisors. We commend you on this important and timely hearing.

As you know, the OCC has recently issued sweeping regulations

that seek to preempt almost all State laws that apply to national

banks and their subsidiaries. This regulation also tries to shield all

national banks and their operating subsidiaries from oversight, inspection, and enforcement actions by any State authority.

These regulations are not minor or incremental changes. Their

scope is nearly unlimited, and their implications are potentially

enormous. The OCC’s new regulations usurp the powers of Congress, stifle State efforts to protect their citizens, and threaten not

only the dual banking system but also public confidence in our financial services industry. If you allow these OCC rules to stand,

our banking system and bank customers will be hurt.

Idaho is a small State with only about 1.3 million residents and bank deposits of about $12.5 billion. Although only one national

bank is headquartered in Idaho, interstate branches of national

banks account for about 70 percent of the State’s banking assets.

Therefore, most of the bank-related complaints and inquiries my office receives come from customers of national banks. We receive

even more complaints about mortgage brokers, nonbank mortgage

lenders, and finance companies, entities that are all likely to become operating subsidiaries of national banks in response to these

new OCC regulations.

Idaho, like the vast majority of States, has not passed specific

legislation against predatory lending. We have been very successful

in enforcing existing laws that protect borrowers and punish fraud.

Contrary to the OCC’s argument, these laws have done nothing to

interfere with credit availability in Idaho. But the OCC’s regulations effectively preempt all of Idaho’s consumer protection laws

and law enforcement remedies, and those of every other State, regardless of whether that State enacted a predatory lending law.

Maintaining a local role in consumer protection and a strong

State banking system has never been more important. State supervision and regulation are essential to our diverse, decentralized financial system. State bank examiners are the first responders to

almost any problem in the financial system. We can and do respond

to these problems more quickly than the Federal Government.

My office has a long history of protecting Idaho consumers from

predatory or abusive lending and other financial fraud. We also

have a long history of working cooperatively with national banks

and their subsidiaries to resolve consumer complaints and inquiries. It cannot be in the public interest to replace this locally based

service with one small office in Houston, Texas, as the Comptroller’s regulations would do.

The OCC preemption would create an uneven playing field for

national banks and State-chartered banks, and that concerns us.

14

What concerns us even more, however, is that this preemption

would also create an uneven playing field for consumers. Borrowers

who walk into a mortgage lender, a money transmitter office, or a

payday lender do not know whether that business is owned by a

national bank. Those borrowers have the reasonable expectation

that State laws will protect them. If borrowers need to seek remedies, their first instinct will not be to complain to the OCC. More

often than not, they will come to us, to the State banking departments, consumer credit agencies, and State attorneys general.

States already have networks in place for referring complaints to

the appropriate agencies and to law enforcement authorities when

necessary. The States dedicate hundreds of employees to handling

these consumer complaints, and these resources strain to keep up

with the demand. With limited resources at both the State and

Federal levels, we should be talking about sharing responsibilities,

not preempting valuable resources.

This debate should not be about the protecting of or the advancing of one charter over another. It should not be about turf. It

should be about creating the best structure for a financial services

system that allows a wide range of financial institutions to compete

effectively and make their products and services available to all

segments of our Nation and that offers consumers protection and

remedies against fraudulent and misleading practices, no matter

the charter of the consumer’s financial institution.

If Congress finds that Federal preemption is necessary to achieve

this goal, we will accept that. With his actions, however, the Comptroller of the Currency is trying to cut off this discussion altogether.

We urge Congress to look carefully at this regulation and its implications and consider whatever actions may be necessary to clarify the interaction of State and Federal laws, restore the balance

of the dual banking system, and reassert Congressional authority

over Federal banking policy.

Ultimately, you must decide whether you are comfortable putting

your constituents in the hands of an unelected official who, with

the stroke of a pen, seeks to sweep aside all State consumer protection laws and has effectively declared all national banks and their

operating subsidiaries in your State exempt from the authority of

your Governor, your State’s attorney general, your State legislature, and your State’s financial regulators.

Already on this panel you have heard conflicting certainties and

conflicting fears. Having read the second panel’s testimony, I expect you will hear more of the same. I assume that can only lead

to confusion on this Committee and certainly among your constituents as to the implications of these rules.

Given this confusion, we have a request. We would ask that this

Committee call on an independent source, such as the Congressional Research Service or a select task force, to review all of the

claims and report to your Committee with their findings. In the interim, we would ask that the Committee and the Congress have

the OCC rescind or suspend their rules. If the States are wrong,

with the rules rescinded we merely have the status quo—a consolidating industry making record profits with a healthy and, for the

most part, State-chartered community banking sector. If the States’

15

concerns are found valid, then Congress will have prevented a serious change in Federalism with constitutional consequences that

harm consumers, the banking system, and the economy.

Thank you very much, Mr. Chairman. I would be happy to answer any of the Committee’s questions.

Chairman SHELBY. Thank you.

Generally speaking, shouldn’t it be the Congress of the United

States that would preempt something by statute, clearly do so,

rather than a regulatory body that would attempt to do it by regulation, such as the OCC?

Mr. Cooper.

Mr. COOPER. Yes, sir, absolutely. We do not think that Congress

has, in fact, preempted State consumer protection laws and predatory lending laws. That is a decision that you should make, not an

unelected regulator.

Chairman SHELBY. Mr. Hawke, obviously you believe that you

have that power to make a rule and that Congress gave you that

power. Is that right?

Comptroller HAWKE. I believe that power comes from the Constitution, Mr. Chairman.

Chairman SHELBY. The Constitution.

Comptroller HAWKE. The Supremacy Clause of the Constitution

says that the laws of the United States are the supreme law of the

land, and the judicial history of preemption is based on exactly

that.

Chairman SHELBY. How many national banks do we have in the

United States?

Comptroller HAWKE. We have about 2,100 national banks.

Chairman SHELBY. How many State banks do we have?

Comptroller HAWKE. I think there are probably close to 7,000

State banks.

Chairman SHELBY. So, 2,100 and 7,000. Are some of our larger

banks State banks?

Comptroller HAWKE. There are some. The Fed regulates a number of large State banks, and in Alabama, for example, there are

a number of large State banks that are doing a broad multi-State

business.

Chairman SHELBY. But, Mr. Hawke, if your regulations are

upheld, would there be one standard for the national banks and

one standard for the State-chartered banks?

Comptroller HAWKE. I think that depends on what the States do

with respect to their laws. But that, Mr. Chairman, is really what

lies at the heart of the dual banking system. There are Federal

rules that apply to national banks and State rules that apply to

State banks.

Chairman SHELBY. Mr. Cooper, do you want to comment on that?

Doesn’t that go to heart of it?

Mr. COOPER. It does go to the heart of it, and we are not saying

that we have the right to come in and examine the safety and

soundness of these banks. We do believe that is the exclusive prerogative of the OCC. But State consumer protection laws, these national banks which do business in our State historically have abided by State consumer protection laws. And we are not just talking

about predatory lending, but do not call in other laws.

16

Chairman SHELBY. How do you answer the question that Mr.

Hawke has proposed that his ability as Comptroller of the Currency to bring forth these rules or regulations to preempt the State

laws comes from the Constitution, not from the Congress? And if

it did come from the Constitution, just suppose, and if the courts

upheld it, Congress would have no play in there, would it?

Mr. COOPER. Well, if you extrapolate, that means that any law

that you would pass could apply and preempt——

Chairman SHELBY. But he is saying, he is rationalizing his ability to do these regulations, as I understood.

Comptroller HAWKE. In the absence of any action by Congress.

Chairman SHELBY. That is right, in the absence of anything.

Mr. COOPER. We think it is clear what Congress has done. Specifically, in 1994, in Riegle-Neal, you said specifically Congress

should not prohibit the States from enforcing their consumer protection laws. We had the exact language in our written documentation. But we believe that you have spoken on this and that the U.S.

Supreme Court has spoken on this issue.

Chairman SHELBY. Well, let us go back to the national versus

State banks. You come from a State that is probably the second

largest banking State in the Nation after New York—North Carolina. You have State banks and national banks. If this rule OCC

has brought forth is upheld, what does that say to the North Carolina laws? They cannot be enforced against the national banks but

you can enforce them against the State banks? Is that correct?

Mr. COOPER. That is correct, Mr. Chairman. We are very proud

of our banking State in North Carolina, and we think clearly that

other lending institutions will cry foul and will say here the national banks have this exemption from State predatory lending

laws, we need the exemption as well. And what we fear even more

is that these national banks will attract more banks because of this

exemption from predatory lending laws.

Chairman SHELBY. Which would give them immunity in a sense,

would it not?

Mr. COOPER. Correct.

Chairman SHELBY. What practical differences will consumers

and national banks experience regarding the rules? In other words,

could you provide us some before and after the rule? You are the

Attorney General of North Carolina. How would you envision it?

Mr. COOPER. Right now you are seeing State attorneys general

across the country take action against national banks and other

lenders, and you would not see that enforcement action anymore.

Chairman SHELBY. Because they would not have a right to do it,

right?

Mr. COOPER. That is correct.

Chairman SHELBY. But they would still have the right to go after

the State banks for doing the same thing.

Mr. COOPER. That is correct. And that is fundamentally unfair.

Chairman SHELBY. Okay.

Comptroller HAWKE. Mr. Chairman, could I respond to one point?

Chairman SHELBY. Sure, go ahead.

Comptroller HAWKE. I think Riegle-Neal has really been misstated. I think Riegle-Neal demonstrates exactly the opposite.

17

First of all, since the beginnings of the national banking system,

there has been an explicit Federal statute that says that the OCC

has exclusive visitorial powers over national banks. Unlike the argument that the State AG’s are making, there is no exception in

that statute for nonsafety and soundness matters, like consumer

protection. That is made very clear by Riegle-Neal.

Riegle-Neal, in the interstate branching context, says that State

consumer protection laws will apply to national banks unless they

are preempted, and that if they are not preempted, the OCC is the

exclusive enforcement authority.

Within the last 10 years, Congress has explicitly addressed that

issue, and it is simply not true, as the Commissioner said, that we

preempt all State consumer protection laws. That is exemplary of

the kind of gross exaggeration of what we have done that we are

having to deal with. We do not preempt State fair lending laws. We

do not preempt State unfair and deceptive practices laws. We address only those laws that deal with deposit-taking and lending,

which are the essence——

Chairman SHELBY. Do you think you could preempt them under

your constitutional power?

Comptroller HAWKE. Probably not. We have not considered that.

But we have not preempted them. We are actually taking the position that——

Chairman SHELBY. In other words, where should the line be

drawn?

Comptroller HAWKE. We are taking the position that they are not

preempted.

Chairman SHELBY. Where should the line be drawn, Mr. Cooper,

between State and Federal?

Mr. COOPER. State consumer protection laws that protect consumers should not be preempted by the OCC. We are not arguing

with their powers to examine banks and make sure there is safety

and soundness. But laws that protect consumers in the particular

State should be obeyed by national banks, as well as State banks.

Chairman SHELBY. Mr. Hawke, just briefly, succinctly, restate

the thrust of your legal analysis that your counsel came upon to

determine where to draw the line.

Comptroller HAWKE. Our legal analysis traces back to the 1819

decision of the Supreme Court in McCulloch v. Maryland, which

said that the States do not have the constitutional authority to restrict or limit or condition the powers that Congress has conferred

on a Federally created entity. That is the ultimate basis for our

preemption rule, plus many Supreme Court and other Federal

court decisions since that time.

Chairman SHELBY. Your regulations, as I understand it, Mr.

Hawke, contain a new predatory lending standard for national

banks. Is that correct?

Comptroller HAWKE. That is correct.

Chairman SHELBY. Which prohibits them, that is, the national

banks, from making ‘‘any type of consumer loan based predominantly on the bank’s realization of the foreclosure value of the borrower’s collateral without any consumer of the borrower’s ability to

repay the loan according to its terms.’’ How does this standard differ, Mr. Cooper or Mr. Gee, from some of the State predatory lendVerDate 11-MAY-2000 22:02 Nov 14, 2005 Jkt 000000 PO 00000 Frm 00025 Fmt 6633 Sfmt 6633 24076.TXT SBANK4 PsN: SBANK4
18

ing standards that have been passed? Is it adequate or inadequate?

I do not know.

Mr. COOPER. I think it is inadequate, Mr. Chairman. That is certainly something that should be done. Asset-based lending should

be prohibited. All they have after that is general unfair and deceptive trade practices.

In my opening comments, I outlined all the specific problems

that are faced with predatory lending, and you need to go through

and specifically point out those problems.

In North Carolina, we found that our general unfair and deceptive trade practices act did not work. That is why we came forward

and adopted our specific predatory lending law.

Chairman SHELBY. Mr. Gee.

Mr. GEE. Mr. Chairman, I certainly agree with General Cooper.

The other thing I would add is that States right now, you have to

remember that operating subsidiaries of national banks are generally State chartered. Many of them are State licensed. They are

examined by the States. They are regulated by the States. They are

overseen by the States. That has been the practice.

And so in those examinations you find, you know, violations, you

find deceptive practices. The States have taken action in those

cases, and that has benefited, obviously, national banks and their

operating subsidiaries because, up until this regulation, they have

been subject to State oversight and State supervision.

Chairman SHELBY. Can the OCC singlehandedly and sufficiently

conduct oversight of national banks and their operating subsidiaries you referenced? Or will consumer protection suffer because of

the lack of State resources and manpower?

Mr. Gee.

Mr. GEE. Mr. Chairman, from our perspective, we think the OCC

does not have the ability and does not have the wherewithal to address consumer protection adequately. As I mentioned in my remarks and more in my written remarks, I come from a small State

where there is no OCC office, no presence, to our knowledge. Consumers do not know about the OCC. They are not listed in the

phone book. When they have a problem, they call our office. They

call the State AG. They are not aware of the OCC, and we do not

think that after these regulations the OCC is going to have a presence in a State like ours. And there are hundreds and hundreds

of State examiners and the investigators and examiners with State

Attorneys General’s offices that are dealing with these problems on

a day-to-day basis. We do not think the OCC has the resources to

replace them.

Chairman SHELBY. Mr. Cooper.

Mr. COOPER. Mr. Chairman, the OCC is late to the consumer

protection arena. Only in the year 2000 did they wake up and say,

hey, we may need to start enforcing consumer protection rules

here. The Senate might think this was laying the groundwork for

preemption. What you are doing is taking away years and years of

experience of State banking regulators and attorneys general’s

staffs who have experience in dealing with these consumer complaints.

19

You have seen a home loan, how thick it is. Going through each

one of those papers trying to investigate wrongdoing by lenders is

a lot of work, Mr. Chairman.

Chairman SHELBY. Mr. Hawke, do you want to respond to that?

Can you do the job?

Comptroller HAWKE. We can do the job. And we do the job. We

have enormous resources. We have hundreds and hundreds of bank

examiners who have enormous clout over the banks that we supervise. We can get remedies. When matters are called to our attention, we can get remedies overnight in our banks, and we do not

have to go to court and suffer the expense and delay of court actions to get remedies.

In Idaho, for example, where there are branches of five multiState national banks, if we find problems in those banks, we can

go right to the heart of the matter. We can go to the top of the organization and get corrections. And as far as people in Idaho not

knowing what our telephone number is, there are literally tens of

thousands of people around the country who are able to find our

telephone number, and if they cannot, they are referred to us by

the State authorities. We have an enormously effective consumer

assistance group that processes 70,000 inquiries annually—complaints that come from all over the country, from all types of people. And it is a very effective operation.

Chairman SHELBY. Senator Sarbanes, thank you for your indulgence.

Senator SARBANES. Mr. Hawke, in your statement you say, right

at the outset, that it is important not to lose sight of three fundamental points, and one of the points you do not want us to lose

sight of it: ‘‘There is no evidence that they are the source of predatory lending practices.’’ ‘‘They’’ being national banks. I am quoting

you correctly, I take it.

Now, I would like to ask you: Does this statement include the operating subsidiaries of national banks?

Comptroller HAWKE. Yes, it does, Senator.

Senator SARBANES. Okay.

Comptroller HAWKE. And the State attorneys general bear that

out.

Senator SARBANES. No, that is not my understanding.

Comptroller HAWKE. Well, that is what they have said. They may

be saying something different today, but they have said that repeatedly in statements that they have filed.

Senator SARBANES. What is it they have said?

Comptroller HAWKE. They have said that the problems of predatory lending are problems that exist almost entirely in the unregulated segment of the financial services industry, and they are not

problems that are found to any extent with national banks or Federal thrifts or their subsidiaries. That is their statement.

Senator SARBANES. Is that right, Mr. Cooper?

Mr. COOPER. I do not know what statement he is reading from,

Senator.

Comptroller HAWKE. I can provide the statement.

Mr. COOPER. I think that may have been made by——

Chairman SHELBY. We would like to have it for the record.

20

Mr. COOPER. One of the attorneys general in the OTS issue, but

I will back up and say that, yes, the majority of the problems have

been with the finance companies. But there are problems with national banks, and, in fact, the only case that has been brought

under the North Carolina predatory lending law—there was a class

action case of consumers—was against a national bank.

You know, we hope that they can do the job, but why undercut

us as well? And we are very concerned, too, that this recruiting

process and with these subsidiaries that that is going to be attractive that they can skirt State predatory lending laws. So there is

just no need to undercut State regulators here. We can work together. They can enforce, we can enforce, just like we do with other

Federal agencies. And these banks are sophisticated, just like any

other retailer.

Senator SARBANES. My understanding is that, first of all, that

reference was in a different context and, in any event, was not as

absolute as your statement. And I want to pursue your statement

for a moment, Mr. Hawke. Let me just read it to you again: ‘‘There

is no evidence that they’’—meaning the national banks—‘‘are the

source of predatory lending practices.’’ And you just said that you

encompass within national banks their operating subsidiaries.

Has the OCC conducted a survey or study of the extent of predatory lending by national banks or their operating subsidiaries?

Comptroller HAWKE. We have not conducted a survey.

Senator SARBANES. Has the OCC conducted a hearing on predatory lending as a number of other governmental agencies have

done?

Comptroller HAWKE. We have not held a hearing, but we have

had an extensive rulemaking process, and we have sent out extensive guidance on the matter. We have also asked consumer groups

and State law enforcement officials, both, to provide us with any

evidence that they have of national banks or their operating subsidiaries engaging in predatory practices.

Senator SARBANES. Does the OCC know what percentage of national bank mortgage lending is subprime?

Comptroller HAWKE. I do not have that number at my fingertips,

Senator Sarbanes, but subprime lending in national banks is a recognized subcategory of lending and——

Senator SARBANES. Do you know what percentage of national

bank mortgage lending is subprime?

Comptroller HAWKE. I cannot tell you that.

Senator SARBANES. Does the OCC know the average points and

fees charged by national banks and operating subsidiaries of national banks?

Comptroller HAWKE. No, we have not calculated——

Senator SARBANES. How do you make these flat-out judgments

about no evidence of predatory lending practices when you do not

know the underlying situation that would enable one to make that

conclusion?

Martin Eakes, who is testifying on the next panel, the head of

the Center for Responsible Lending in North Carolina, states in his

testimony that has been submitted to the Committee, ‘‘The OCC ignores existing evidence of predatory lending within national banks,

and their affiliates and subsidiaries. Despite some contradiction beVerDate 11-MAY-2000 22:02 Nov 14, 2005 Jkt 000000 PO 00000 Frm 00028 Fmt 6633 Sfmt 6633 24076.TXT SBANK4 PsN: SBANK4
21

tween this claim and the assertion that OCC has led pioneering

efforts to shut down predatory lending, this claim is belied by allegations brought by consumer advocates and researchers regarding

national banks.’’

Comptroller HAWKE. I do not know what Mr. Eakes is referring

to. He talks about national bank affiliates, which are not subject

to our jurisdiction. They are subject to holding company jurisdiction. I base my statement not only on the repeated statements of

the State AG’s, but also on the absence of any referrals of complaints or evidence from consumer groups or State law enforcement

officials.

Senator SARBANES. Well, we will have Mr. Eakes here, and we

will get his response to that.

Now, let me ask you this question. You cite as precedent for your

preemption action preexisting OCC regulations and judicial preemption decisions. You also cite laws that have been determined to

be preemptive for Federal thrifts by the OTS.

I take it that you are taking the OTS determination and just

folding them in. Is that correct?

Comptroller HAWKE. We reflected the same scope that the OTS

has embodied in its longstanding regulation on the same subject.

Senator SARBANES. I guess the answer to my question is, yes; is

that right?

Comptroller HAWKE. Yes, Senator.

Senator SARBANES. The standard you cite is ‘‘obstruct, impair, or

condition.’’ You say that is the judicially established standard for

Federal preemption.

The Barnett Bank decision, which we understand is the most

prominent recent Supreme Court case on national bank preemption

and which was cited in Gramm-Leach-Bliley, used the standard

‘‘prohibit or significantly interfere with a nationally bank’s Congressionally authorized powers.’’ Do you view the standard contained in your regulation as different from the standard in the

Barnett Bank decision?

Comptroller HAWKE. No, I do not. There is a lot of language in

Barnett, and people have tended to pick up one or two words from

it, but I think Barnett completely supports the articulation of the

standard as I made it.

Senator SARBANES. Do you have a view on that, General Cooper?

Mr. COOPER. We believe that their interpretation of Barnett

Bank goes beyond significant impairment.

Senator SARBANES. Well, obviously you think—and, Mr. Gee, I

guess you agree with this—that the Comptroller, to some extent,

is taking the view, well, you know, I have not really done anything

here. I mean, what I have done is just simply state what the lay

of the land is. But no one seems to perceive it the same way as

the Comptroller. I mean, everyone else seems to think he really has

done something in terms of preemption, and I take it on the ground

that is exactly the way it is working. In fact, I have been told that

banks have been told just to ignore the attorney generals or the

other State officials; is that correct?

Mr. COOPER. That is correct, Senator. I think recently they told

them that it is okay for them to send forward the complaint to

them and to take the complaint, but they reemphasized in that secVerDate 11-MAY-2000 22:02 Nov 14, 2005 Jkt 000000 PO 00000 Frm 00029 Fmt 6633 Sfmt 6633 24076.TXT SBANK4 PsN: SBANK4
22

ond letter that State attorneys general did not have the authority

to enforce them. So here we are dealing with national banks with

a complaint, and we have no authority to enforce our State law

against a national bank. That is a concern.

Senator SARBANES. Mr. Gee, do you have any observation on

that?

Mr. GEE. Senator, I would make the same observation. While the

OCC did come out with guidance, and it is guidance only—it does

not have the force and effect of a rule—clearly, the direction that

national banks were receiving before, and there were a couple of

well-publicized incidents where national banks actually told either

State attorneys general or State bank commissioners, ‘‘We do not

have to deal with you any more. We do not have to respond to you

any more,’’ and that is the message that has clearly been indicated

to national banks.

Comptroller HAWKE. Senator Sarbanes, can I respond to that?

There was some misreading of what we said, and we moved very

quickly to clarify that. Our position should be understood very emphatically. We do not encourage our banks to stiff-arm State law

enforcement authorities. We have advised them that when they get

a consumer complaint referred by a State law enforcement authority or State attorney general, they should take it seriously, they

should respond, they should provide information back as to the resolution of the matter. We have adopted special procedures in our

Customer Assistance group to deal with referrals from State authorities.

We do not take the position that our visitorial powers rule, which

is really based on longstanding Federal statute, it prevents State

law enforcement authorities from calling a bank and referring a

consumer complaint to them. That is simply not the case. What it

does prevent is State law enforcement officials going to court to enforce a State consumer protection law against a national bank, and

that is clearly grounded in Riegle-Neal and in the basic visitorial

powers statute.

Senator SARBANES. Mr. Chairman, I see my time is up. I want

to be fair to Senator Allard.

Chairman SHELBY. There will be another round.

Senator SARBANES. I will wait until the next round.

Chairman SHELBY. Senator Allard.

Senator ALLARD. Mr. Chairman, I want to follow up on the direction of your first question. Did you say that the Constitution is

where you derive your authority and not from legislation that was

passed by the Congress?

Comptroller HAWKE. What I meant, Senator Allard, is that the

Congress has plenary power to deal with these issues however they

see fit. But in the absence of——

Senator ALLARD. That is not entirely true either, but go ahead.

Comptroller HAWKE. I mean in terms of preemption. Congress

can decide that a Federal law that confers powers on a Federal entity should not be viewed as preempting State law, and they do

that all the time. There are many examples where they have done

that. But in the absence of any expression by the Congress as to

the preemptive effect of a Federal law, the case law, which goes

back well into the 19th century, is very clear—that the Supremacy

23

Clause of the Constitution prohibits the States from adopting any

law that restricts, impair,s or conditions the exercise of powers that

Congress has conferred on a Federal entity, like a national bank.

Senator ALLARD. Well, but that is right. I mean, the Congress

confers that, we do that through authorizing legislation.

Comptroller HAWKE. The Congress confers the power on the

banks, and in the absence of any expression of intent by Congress

that State law should be applicable to the exercise of that power,

the Constitution preempts the State law.

Senator ALLARD. In other words, what are the limitations on how

many rules and regulations you can pass? Is it your view that you

can pass any law or regulation, as long as Congress does not tell

you not to do it?

Comptroller HAWKE. Not at all, Senator. First of all, our regulation, in our view, and I do not recognize the description of it from

some of the comments, does no more than codify longstanding principles. We have not created new standards of preemption.

Senator ALLARD. Here is what I am looking at. I have the Constitution here, and I am reading Section 8, 9, and 10. In Section

8, it says what powers Congress has and what powers the Federal

Government has. It says what powers they do not have. And then

in 10 it says what powers the States do not have.

And then I look over here in Amendment No. 10, the Tenth

Amendment to the Constitution, ‘‘The powers not delegated to the

United States by the Constitution nor prohibited by it to the States

are reserved to the States respectively or to the people.’’

And I am trying to figure where you come up with your authority

to be able to pass rules and regulations, unless it is authorized by

the Congress of the United States.

Comptroller HAWKE. Senator, the Supremacy Clause of the Constitution says that the Constitution and laws of the United States

shall be the supreme law of the land, and the Supreme Court has

consistently interpreted that in the context of Federally created instrumentalities, like the national banks.

Senator ALLARD. I keep looking for that. The closest I can come

to that is ‘‘to make all laws which shall be necessary and proper

for carrying into execution the foregoing powers and all other powers vested by this constitutional Government of the United States

or in any department or officer thereof.’’ Is that what you are calling the Supremacy——

Comptroller HAWKE. No, that is not the Supremacy Clause, Senator. The Supremacy Clause says that this Constitution and the

laws passed pursuant to it shall be the supreme law of the land.

Senator ALLARD. And where is that?

Comptroller HAWKE. I do not recall what section.

Senator ALLARD. I was going through here, and I did not see

the——

Comptroller HAWKE. It is in there.

Senator ALLARD. What I do see——

Comptroller HAWKE. It is——

Senator ALLARD. I am not a lawyer.

Comptroller HAWKE. I have not practiced law for a long time.

Senator ALLARD. But I did not see anything with the kind of language that you are talking about. However, I do see specific powers

24

granted to the Federal Government and to the Congress. I see specific powers denied them. I see specific powers denied to the States.

And then I see an amendment here in the Constitution that says

specifically, that any other laws that are not mentioned automatically go to the States and the individual.

It seems to me that you are really stepping out quite a ways on

thinking——

Comptroller HAWKE. Senator——

Senator ALLARD. —you have all of these rules to promulgate——

Comptroller HAWKE. I, respectfully——

Senator ALLARD. There is not any authorizing legislation.

Comptroller HAWKE. I, respectfully, disagree, Senator. The Supremacy Clause says that the laws of the United States are the supreme law of the land. That is what the Supreme Court relied on

when it said——

Senator ALLARD. What is the rule——

Comptroller HAWKE. Can I just finish my answer?

Senator ALLARD. Yes.

Comptroller HAWKE. That is what the Supreme Court relied on

when they said that the States do not have the power to limit the

exercise of powers that Congress has conferred on Federally created institutions. The Tenth Amendment does not reserve for the

States the right to regulate Federally created institutions.

Senator ALLARD. I am not saying that.

Senator SARBANES. Is it your position that a State cannot effect,

in any way, Federally created institutions?

Comptroller HAWKE. Since McCulloch v. Maryland, the law has

been that the States, absent the conferral of explicit authority by

Congress, do not have the power to condition, limit, or obstruct the

exercise of powers that the Congress has conferred on Federally

created entities like national banks.

Senator ALLARD. That is not the argument I am making, and I

do not think that is the question that the Chairman was asking.

Where do you get your authority to promulgate the rules? We are

not talking about the Supremacy Clause and saying that the States

have any authority over what you are doing, but we are talking

about where you get your authority?

Comptroller HAWKE. We have explicit rulemaking authority

under several statutes. One is the explicit power that Congress

gave us to write the rules relating to the exercise of real estate

lending powers by national banks, and there are other statutes

that confer rulemaking power on us. But absent——

Senator ALLARD. I think that is the question.

Chairman SHELBY. In other words, what is the source of what

you are trying to do? Because as I hear from the—thank you for

yielding to me without asking.

Senator ALLARD. Mr. Chairman, any time.

[Laughter.]

Chairman SHELBY. Thank you, Senator Allard. But as I understand the Attorney General’s Association, all 50 Republicans and

Democrats have banded together and are going to challenge whatever you do here, and you are trying to do, your regulation, period.

Is this correct, Mr. Cooper?

Mr. COOPER. That is correct.

25

Chairman SHELBY. Do you believe he has the basis he is talking

about to do this?

Mr. COOPER. We do not believe that the——

Chairman SHELBY. That is what I was asking and it is what Senator Allard’s——

Mr. COOPER. We do not believe that the combination of Supreme

Court precedent and laws that Congress has passed allows him to

do that.

Now, clearly, there is disagreement on what the law is. You guys

can decide what the law should be. We can fight all day about this

and probably will in court, unless Congress acts. And I think it is

critical for you all to look at this, and I am glad that you are because you can say yea or nay on these rules, and I think Mr.

Hawke would probably agree with that.

Senator ALLARD. Yes, I just wanted to get that clarified a little

bit, Mr. Chairman.

Chairman SHELBY. You go ahead. Since you graciously let me

take your time, you proceed.

Senator ALLARD. No, no. I took your question.

Chairman SHELBY. Well, you added to my question.

Senator SARBANES. Well, does Mr. Hawke agree that we can say

yea or nay?

Comptroller HAWKE. Absolutely, Senator. The OCC is——

Senator SARBANES. It comes not from the Constitution, but from

statute.

Comptroller HAWKE. The Congress created the national banking

system. It can repeal it. It can do anything it wants with the national banking system.

Chairman SHELBY. Where does the Constitution come in? The

Constitution will preempt the statutes of the United States Congress.

Comptroller HAWKE. The Constitution comes in, Mr. Chairman,

when Congress has not spoken, when Congress has not specifically

said State law should apply, and it has in many cases. When Congress has not said that State laws shall apply to a Federally created entity like a national bank, then the Constitution prohibits

the States from acting to restrict or condition or obstruct the exercise of those powers that Congress has conferred on those entities.

Senator SARBANES. Which are the powers we conferred on the

banks that constitute the basis of preemption of predatory lending

laws.

Comptroller HAWKE. The basic power to conduct a banking business, the statutory power——

Senator SARBANES. So you believe the power to conduct a lending

business embraces the power to conduct the predatory lending

business; is that correct?

Comptroller HAWKE. Not at all, Senator, and I also wanted to

mention——

Senator SARBANES. Well, if it does not embrace it, then why

should the State not be able to act in the area of predatory lending? If it is not embraced, I do not see any of the basis for the preemption.

Comptroller HAWKE. If I could finish my answer, Senator

Sarbanes——

26

Senator SARBANES. The State would be able to act.

Comptroller HAWKE. If I could finish my answer, the Congress

has explicitly provided that national banks can make real estate

loans under rules that the OCC has determined, and we have

issued such rules. What the State antipredatory lending laws do is

impose conditions on the exercise of the power to make real estate

loans by national banks.

I am not trying to justify predatory lending. We have ample

power to deal with predatory lending where we find it. What I am

saying is that the Constitution does not permit the States to adopt

rules that condition or limit the exercise of real estate lending powers by national banks. Congress can change that, if it sees fit. Congress can adopt a national predatory lending standard that applies

to the real estate lending powers of all banks. But in the absence

of that kind of law, the constitutional principle operates.

Senator SARBANES. Well, except the OCC is the one that is putting forth the regulation. The fact of the matter, we have been talking about power, but there is also the question of the wisdom of

what you are doing, over and above—there is nothing in the Constitution that compels you to do this. So, in a sense, we are back

to the wisdom of what you are doing, about which everyone is

sounding an alarm bell.

Comptroller HAWKE. Senator, I do not have the ability to apply

the constitutional principle based on my own judgment about

whether a particular law is a desirable one or an undesirable one

or a good one or a bad one. The constitutional principle operates,

and it has operated for almost two centuries in our history.

I should say that these preemption issues are raised all the time

in the courts. One of the reasons that we put out this rule was to

try to bring some clarity to the subject. We win these preemption

cases all the time. When we preempted the Georgia antipredatory

lending statute, the Georgia attorney general was asked to take us

to court, and he reviewed the precedents and said that he thought

there was so little chance of overturning us in court that he would

not even sue us.

So, if the State attorneys general want to test these issues in

court, I think that is perfectly appropriate.

Chairman SHELBY. Senator Carper, thanks for you indulgence.

STATEMENT OF SENATOR THOMAS R. CARPER

Senator CARPER. Not at all.

Welcome Mr. Gee, Mr. Cooper. Mr. Gee, are you the bank commissioner for your State?

Mr. GEE. Yes, Senator, I am.

Senator CARPER. What do they call you back there—commissioner? Commissioner Gee?

Mr. GEE. Director.

Senator CARPER. Director Gee. Are you appointed by the Governor or how do you serve?

Mr. GEE. Yes, I am, Senator.

Senator CARPER. Governor Dirk Kempthorne?

Mr. GEE. Yes.

Senator CARPER. You tell him an old Governor from Delaware

sends his best.

27

Mr. GEE. I will do that, Senator.

Senator CARPER. Mr. Cooper, where are you from in North Carolina?

Mr. COOPER. I am from Rocky Mount.

Senator CARPER. Are you, really?

Mr. COOPER. On I–95, yes, sir.

Senator CARPER. My wife is from Boone, up in the mountains,

and we have a lot of family up there in Watauga County and down

around Cary and Holly Springs.

Chairman SHELBY. Everybody knows why Senator Carper carries

all three counties in Delaware.

[Laughter.]

Chairman SHELBY. All of them.

[Laughter.]

Chairman SHELBY. Go ahead.

Senator CARPER. We have not carried any counties in North

Carolina yet, though.

Chairman SHELBY. There are just three.

Senator CARPER. I am glad you are here and look forward to

working with you.

Was Governor Easley your predecessor?

Mr. COOPER. Yes, he was.

Senator CARPER. Mr. Hawke, how are you doing?

[Laughter.]

Comptroller HAWKE. Well, I hope I feel as good when I leave as

I did when I came in.

Senator CARPER. We hope so, too. We appreciate your being here.

We appreciate all of you being here.

A person who is not here is Senator Zell Miller, and he has

shared with me, the staff has actually shared with me a note from

him, and I am going to just go ahead and ask this one on the

record. I will just read it, rather than paraphrase it, since it is not

very long. It is from Senator Miller to Mr. Hawke. It deals with a

letter that was written to you—you may have heard of this—a letter that was written to you by the bank commissioner, I guess by

Director Gee’s counterpart in Georgia.

It was written to you back on August 21, 2003, requesting clarification on several matters relating to the OCC’s preemption. Apparently, Zell Miller’s staff got involved in February of this year because the State bank commissioner had not received a response to

his or her August 21 request. And, finally, the response came to

the commissioner of Georgia on April 2, 2004, which is probably

about 8 months after it was made.

There may be a perfectly good excuse for the delay in that kind

of response. We got our mail lost after the anthrax attacks and

ricin attacks. Some mail gets lost for months, and maybe you have

a similar problem, I do not know. But just for the record could you

tell us why it took so long to respond to Commissioner Sorrell.

Comptroller HAWKE. There is no excuse for that, Senator Carper.

I learned about this several weeks ago. I was extremely upset. This

is not the way we should be treating inquiries from State officials.

Frankly, it is black mark on our record. I called Commissioner

Sorrell the other day and told him that we would have a letter to

28

him the next day, and we did. I am deeply regretful that that incident occurred, and I have apologized profusely to him about it.

Senator CARPER. Thanks very much. We will convey that to Senator Miller.

The reason why I was willing to raise this, on behalf of Senator

Miller, is that it relates to a question I am going to ask of Director

Gee and General Cooper, and particularly to Director Gee.

In our State, as the Chairman says, we are a pretty small State.

We only have three——

Chairman SHELBY. A very important State, the first State.

[Laughter.]

Senator CARPER. I yield to the Chairman for however much time

he wishes to consume.

[Laughter.]

Chairman SHELBY. Any time you want.

Senator CARPER. We focus a lot in my Senate office, we did when

I was governor of Delaware, and our bank commissioner’s office focuses a lot on constituent service, being able to respond in a timely

way to the people who inquire on particular issues.

How does it work in Idaho? You are not a little state geographically, but you are a fairly small State, in terms of population, like

us. But how would constituents, consumers, if you will, who had a

gripe or a beef or a concern with a practice of a nationally charted

bank, how would they have acted or behaved in your State prior

to the promulgation of this rule and how might they be expected

to take their beef or complaint or gripe now under this new rule?

How has it changed?

Mr. GEE. Thank you, Senator, for the question.

The difference is, before the rule, as I mentioned in my testimony, most consumer complaints do come to our office or the Attorney General’s Office. Whether it is against a national bank or a national bank subsidiary, those complaints and inquiries come to our

office. This is especially true when there is some type of major

transaction involving a national bank; for example, a merger or

consolidation, acquisition, closing of a branch office.

Those kinds of major transactions generally facilitate a lot of

complaints or inquiries to our office. And before this rule went into

effect, our office responded to those complaints. Our office has a

very good working relationship with the national banks that operate in our State. We have contact people in all of those national

banks. We work out the resolution of those complaints with those

contact individuals. Quite often they will make restitution or resolve the complaints in an appropriate way.

The operating subsidiaries quite often, as I mentioned, are actually regulated by either our State or other States licensed by the

States and overseen and examined by the States. After this rule

goes into effect, we have lost all of that power and authority to regulate operating subsidiaries of national banks. We no longer have

jurisdiction. A lot of those companies not only in our State, but

around the country, are turning in their licenses to the States.

States no longer have jurisdiction to respond to consumer complaints or inquiries or any authority over those operating subsidiaries. And it is primarily those operating subsidiaries is where our

concern about predatory lending and other abusive lending pracVerDate 11-MAY-2000 22:02 Nov 14, 2005 Jkt 000000 PO 00000 Frm 00036 Fmt 6633 Sfmt 6633 24076.TXT SBANK4 PsN: SBANK4
29

tices occur, and we have lost our authority. The attorney generals

have lost their authority. The attorney general in our state has lost

their authority with respect to those operating subsidiaries and

also complaints against the national bank.

We no longer have authority, under our State’s consumer protection laws or other laws. Generally speaking, as the Comptroller

points out, there are some laws that still apply, but, as a general

rule, if you look at all of the actions, for example, the attorney general in our State over the last 3 years, has brought three major enforcement actions against national banks.

Those actions now cannot be brought under the consumer protection laws of our State. Those have been preempted by these regulations. So our ability to help consumers, resolve their complaints,

whether it is the national bank, and especially the subsidiaries of

national banks, has been preempted.

Senator CARPER. If I could ask General Cooper a similar question, then, Mr. Hawke, I am going to ask you to respond as well.

I am going to give you extra time, if we could.

Mr. COOPER. Senator, let me state clearly, and I think the director may agree, we do not concede that these new rules take away

our authority because we are going to fight this every step of the

way in court. We believe you can do something about it now, but

we do not concede that in expressing our concern to you.

But right now thousands of North Carolina consumers call my office because they want help. I testified earlier that we receive thousands of phone calls regarding national banks and that in the last

2 years, we have received about a thousand written complaints regarding national banks, and they file these complaints because

they believe that I have the authority to do something about it.

If the OCC ultimately is successful here, I will not have the authority to do something about it. What I said earlier is this takes

50 cops off the beat. We believe that they have the authority, and

we have the authority. We should both have the authority because

there are enough problems that are around regarding these issues

where we all need to be involved in protecting consumers.

There are numerous examples where Federal authorities and our

offices work closely together. We have even had that with the OCC

in the past. We want to continue that, but do not take away our

authority.

Senator CARPER. Mr. Hawke, in responding, let me just——

Comptroller HAWKE. Senator——

Senator CARPER. But before you say it, one of the concerns that

I have, and it is really underlined by what was shared with us by

Senator Miller was, you know, if you happen to be a constituent

in Idaho or a consumer in North Carolina, Delaware, Maryland, or

Alabama, and if the State Bank Commissioner of Georgia has to

wait 8 months for a response, what can a consumer expect?

Comptroller HAWKE. The failure of us to respond in Georgia was

a unique situation and something that I apologized for.

Consumers do not have to wait, and law enforcement officials do

not have to wait. For the day-to-day complaints that consumers

have, and Members of Congress know only too well, they hear from

their constituents about a variety of things. We hear 60,000 or

70,000 times a year from customers of banks, not just national

30

banks, about the kinds of everyday problems they have with their

banks. Fifteen thousand of those we refer back to other agencies

because they do not apply to national banks. We have an enormously effective system of getting complaints to the right people.

We receive hundreds and hundreds of complaints from State law

enforcement officials in that process. Nothing that we have done in

our new regulation prevents the attorney general or his staff in

North Carolina from calling a national bank and saying, ‘‘I have

got this complaint. What is this all about? Can you get this fixed?’’

What Federal statutes do prohibit, and this has been the case

since the beginning of the national banking system, and it was reinforced 10 years ago in Riegle-Neal, is State attorneys general taking administrative or judicial enforcement actions against national

banks. The law is absolutely clear on that, in my view, and I do

not think it is a close call. We are happy to have that tested in

court because I think it is very clear, and we have won that case

in court on several occasions.

The important thing here, Senator, is getting customers’ problems solved. And I think that if we take a cooperative and coordinated attitude about these things, we can get that done.

The Attorney General of New York recently filed a lawsuit

against the subsidiary of one of our national banks. That suit will

go on for months, if not years. When we found out what the customer’s complaint was, we called the bank and got it fixed overnight. We had a similar complaint last year from another bank

that came into our customer assistance group. They called the examiner in charge of the bank. He went down the hall to the bank’s

consumer affairs person, and the problem was fixed immediately.

When a bank examiner goes to an officer of a bank with a customer complaint, he or she has enormous influence to get those

things resolved. If we could work together with the States and use

our clout though examiners, use our customer assistance group, use

the very far-reaching enforcement powers that we have, we could

all do a better job of solving the problems of consumers. This

should not be a competitive game. It should be a cooperative game.

Senator SARBANES. Do you apply that line of thinking to Statechartered operating subsidiaries of national banks?

State-chartered operating subsidiaries of national banks, do you

apply that line of thinking to them?

Comptroller HAWKE. Absolutely, Senator. And this is another

issue that——

Senator SARBANES. The State, it has no reach over them, even

though they come in for a State charter?

Comptroller HAWKE. They are organized under State corporate

laws, and they are licensed by us to carry out Federally granted

banking powers. Operating subsidiaries can only do what the parent bank can do, and they are carrying out their Federally granted

powers. This case has been litigated at least three times. In each

case, our view on this has been upheld. There are two cases pending now in which the same issue is being raised, and we are awaiting decisions.

This is a lawyer’s issue. We will either win it or lose it. It is not

going to be the end of the world one way or the other. But, I think

31

our position on this one is absolutely sound, and we have had three

court decisions that have agreed with us on that.

Chairman SHELBY. Senator Schumer.

STATEMENT OF SENATOR CHARLES E. SCHUMER

Senator SCHUMER. Thank you, Mr. Chairman. Once again, thank

you and Senator Sarbanes for holding a timely hearing. I thank our

witnesses.

I think this is a very interesting issue, and obviously you have

two conflicting values at hand. On the one hand, as we move into

the 21st century, financial markets tend to be national. We have

had some of the insurance industry come to us and say they want

a national charter because they do not want to go through 50

States to get every new regulation approved. They have a new annuity product. Even when they have friendly regulators, they do

not want to take the time.

On the other hand, we have always had a Federal system. And

as I think it was Judge Brandeis said, the States are the laboratories. And when you go preempt, you undercut the States being

laboratories. And so I think there is not a clear-cut answer. I tend

to think, on pure financial issues, the way money flows back and

forth, and those kinds of things, you tend to have a Federal bias.

But it seems to me on consumer issues, particularly where different practices occur in different States, your ruling is going to

have an adverse effect, and I am troubled by it.

I am also troubled, as I know the Chairman, and Ranking Member, and others were, that you rushed to judgment before we could

have hearings. This seemed, to me, to be an ideal issue, and I have

great respect for you, and we have known each other maybe close

to 2 decades in these banking areas, but this is an ideal area where

hearings should have occurred because of these conflicting values.

Take the issue that has raised the hue and cry in my State, and

that is the predatory lending. It may well be that predatory lending

is only endemic in a few States—certainly when it starts. Those

States become what Brandeis calls the laboratories, and we see, as

they pass laws, how well they work. And that is what has happened with predatory lending. There have been a few States that

have been way ahead of the game.

In New York, we have laws that protect consumers from balloon

payments, increased interest rates after default, loan flipping, negative amortization, oppressive mandatory arbitration clauses, lending without due regard to repayment ability, and financing of

points and fees in excess of 3 percent of the loan amount.

You point to an example where our State attorney general

brought an issue and you solved it. But I have to tell you, I have

been around for 20 years, and let me tell you, for even a Senator

or Congressman to knock on the OCC’s door and say we have a

problem and get quick action, when it is a local problem in particular, does not happen very often.

Senator SARBANES. If at all.

Senator SCHUMER. If at all. So maybe that happened once, but

this is our experience. You know, you are busy with a million other

things. This is not your jurisdiction.

32

My question to you is, now, what is going to happen in New York

State if, in New York State, there are serious problems of the types

I listed, with heavy penalties, including allowing the mortgage to

be void, does the OCC have identical protections? What are you

going to do in the event that a complaint is issued against the lender on some of these violations that I have mentioned?

Comptroller HAWKE. Well, two things, Senator Schumer.

First of all, in our preemption regulation, we set out what I think

is an extremely important standard that goes to the heart of predatory lending. That is what I call the underwriting standard.

Second, we made clear——

Senator SCHUMER. Wait. Can you elaborate? How does the underwriting standard deal with something like loan flipping?

Comptroller HAWKE. The underwriting standard does not expressly deal with loan flipping.

Senator SCHUMER. Does it deal with balloon payments?

Comptroller HAWKE. No, but we have addressed those in other

contexts.

Senator SCHUMER. Well, tell me how.

Comptroller HAWKE. First of all, we put out very extensive

advisories to national banks on these very practices that are associated with——

Senator SCHUMER. And if they violate the advisories?

Comptroller HAWKE. We will go after them for unfair and deceptive practices under the Federal Trade Commission.

Senator SCHUMER. How many have you begun to look into in

New York since February 12?

Comptroller HAWKE. I cannot tell you what——

Senator SCHUMER. Could you get that back to me?

Comptroller HAWKE. Sure. We have gone after——

Senator SCHUMER. The bottom line, sir, is this is an awful and

serious problem. It is generally done not by the major banks, but

by lots of others. It is done by the smaller ones. They will go seek

a national charter because there will be a lesser regulation there,

and, I mean, let us be real here. It is going to take years before

you go after them.

Furthermore, it is my understanding the OCC, you know, that it

was never my understanding that you had the authority to define

unfair or deceptive acts. Do you?

Comptroller HAWKE. We do not have the authority to adopt rules.

The Fed has the exclusive rulemaking authority, but we do have

the authority, on a case-by-case basis, using years and years of

Federal Trade Commission precedent to go after banks for unfair

and deceptive practices. And we have done that. We have done

that.

Senator SCHUMER. So, on balloon payments, if there were this serious problem with these huge balloon payments, and poor people

who finally were able to buy a house. You know, they pay the mortgage for 2 years, and then there is this big balloon payment, and

no one ever explained to them adequately that that is what was

going to happen, what would happen? Let us say we found some

small national institution doing this repeatedly, would you have to

go to the Fed first to get permission?

33

Comptroller HAWKE. No, not at all. And balloon payments are

not inherently unfair or deceptive or illegal. They have to be looked

at in context.

Senator SCHUMER. No, but let us say in the case of this bank

they were deceptive, and a guy making $20,000 a year was able to

pay $200 a month, and then in the third year he had to pay $1,000

a month.

Comptroller HAWKE. We could go after them using our unfair

and deceptive practices authority, and we would if it came to our

attention.

Senator SCHUMER. Can you tell me how many balloon payments

in the history of the OCC you have gone after?

Comptroller HAWKE. I cannot tell you that we have gone after

balloon payments as such, but we have gone after——

Senator SCHUMER. It is not balloon payments. The point being

we are all in the real world here, and we all know, having dealt

with the OCC for a long time what you do very well and what you

do not do all that well. And going after smaller institutions, the

bottom-feeders in a certain way, that do some of these horrible

things has never been an OCC strength. And we all know it takes

a very long time. It takes time to convince people to even look at

something new. That is what is so frustrating here.

Now, you come in, without waiting for the Chairman’s admonition to let us have some hearings and ask you maybe we would

open a window of your thinking, and you just go preemption. And

I have got to tell you, even though I tend to believe in national

powers, as I say in financial things, I do not think that that is an

across-the-board statement and should be an across-the-board view.

I have to tell you, I think the OCC has hurt itself by doing this.

Senator SARBANES. Badly.

Senator SCHUMER. I have to tell you, and I would hope you would

even reconsider and maybe sit down with us. I mean, this Committee is hardly known as a radical Committee.

[Laughter.]

And to not sit down with us and try to figure out how to deal

with this fairly, and sit down with others, instead of just doing

this, I would strongly urge you to do it. You have created an outcry, and it is not on everything. It is not on even the idea of a national banking system. Again, I know the State regulators all want

to have as much say in this brave new world. They should have

less say than they used to. But there are certain areas, particularly

consumer and predatory lending, which are different in different

States, that do not interfere with the national banking system at

all, that you should be leaving it up to the States, and that is the

trouble with a blanket resolution.

Just explain this to me. Who defines what an unfair and deceptive action is, and what is your definition of it? That is a very

broad term.

Comptroller HAWKE. It is a very broad term. It is like unsafe and

unsound banking practices. The Federal Trade Commission Act

gives the Federal Reserve the exclusive authority to write acrossthe-board rules. They have done very little in that respect.

Senator SCHUMER. Right.

34

Comptroller HAWKE. We asserted the right to take individual actions—this is something no one else had ever done before until very

recently—and we have taken a number of actions where we issued

cease-and-desist orders and remedial orders for violations of the

Federal Trade Commission Act. And we have decades of precedents

from the Federal Trade Commission as to what constitutes unfair

and deceptive practices.

Senator SCHUMER. Do you think anyone out there in the banking

world knows what you think they are?

Comptroller HAWKE. If they read what we say, they should know,

because we have described it in our advisories on predatory lending.

Senator SCHUMER. Right. Somebody has told me, since 2000, you

have taken a grand total of five enforcement actions. Does that

sound correct?

Comptroller HAWKE. The first time we asserted this authority

was very recently. It had gone unused for many, many years until

we took the position that we had the authority to do it.

Senator SCHUMER. Well, I would posit to you that, A, there are

probably many more than five violations since 2000 and, B, if the

50 States could be involved in some of these areas—I do not know

what the five were—you would get a lot more enforcement without—underline ‘‘without’’—interfering with the need for a national

banking system and the fact that banking has become much more

of a national business than it was before.

Someone showed me the list here. Here is one of them. One bank

in Marin County, I guess, did not inform customers of extremely

low credit limits. Another one did not disclose application fees.

Providian, it says multiple deceptive marketing practices.

Comptroller HAWKE. We got a $300-million restitution judgment

against Providian.

Senator SCHUMER. But the others——

Senator SARBANES. Who brought that action, the Providian action? Who brought it?

Comptroller HAWKE. We brought it jointly with the local law enforcement authorities.

Senator SCHUMER. Who was first?

Comptroller HAWKE. We brought it together.

Senator SARBANES. That is not my understanding.

Chairman SHELBY. Let Mr. Cooper answer that.

Mr. COOPER. It is my understanding that the local district attorney there in California began investigating it and later was joined

by the California Attorney General and the OCC, and that it was

a team effort because they all——

Chairman SHELBY. But it was initiated locally or State.

Mr. COOPER. That is correct.

Comptroller HAWKE. It was a team effort, but we got a nationwide remedy, and what they got was a local remedy.

Senator SCHUMER. Well, but——

Comptroller HAWKE. Senator Schumer, if I may——

Senator SCHUMER. Please.

Comptroller HAWKE. —take off on your point about the national

scope of financial services. In a State like Massachusetts, for example, 75 percent of the mortgages originated in that State are origiVerDate 11-MAY-2000 22:02 Nov 14, 2005 Jkt 000000 PO 00000 Frm 00042 Fmt 6633 Sfmt 6633 24076.TXT SBANK4 PsN: SBANK4
35

nated in offices of banks that are headquartered out of State. When

we find problems in a local office of a bank like that, we can get

a centralized remedy against that institution that covers their operations nationwide, and that is something that nobody else can do.

Senator SCHUMER. But, sir, without your preemption, you could

do the same thing. You could have done just what you did with

Providian. As the local began to look at it, you could then join

them. In fact, I would argue, if I were the San Francisco or if someone, Mr. X, were the San Francisco D.A., after this ruling, he would

say, Look, I think this is horrible, but there is nothing I can do

about it other than go knock at the door of the friendly OCC and

hope that they will listen to me.

Comptroller HAWKE. The State’s action in Providian was against

the holding company. Our action was against the bank.

Senator SCHUMER. I understand, but——

Comptroller HAWKE. And we joined together very effectively to

get a——

Senator SCHUMER. Can I just ask, it may have been asked, why

did you rush this thing through and not wait for hearings?

Comptroller HAWKE. Senator, we had had an extensive rulemaking proceeding on this. We believed that the legal precedents

were absolutely clear. We were facing great uncertainty in the marketplace. The States were increasingly adopting laws that they attempted to apply to national banks. There was an increasing

amount of litigation. We have had 4 dozen lawsuits.

Senator SCHUMER. But would it not have made sense, sir, since

we have somewhat of a different experience than you, just because

we see different parts of the world, that before you did this, you

came, you heard our viewpoints, maybe you would have passed a

better rule? There is a feeling, I guess I have it, and I do not think

I am alone here, that there was a rush to almost avoid us looking

at this, making suggestions, et cetera, that you better get this done

before the heat continues to build.

And as I said, for a man of your distinguished record, I do not

think you served your institution well by doing this, even if some

change might have been warranted.

Chairman SHELBY. Thank you.

Comptroller Hawke, you are not here every day. I am going to

move on to something outside the parameters of the scope of this

hearing and just as important.

Comptroller HAWKE. I will be back in 2 weeks, Mr. Chairman.

Chairman SHELBY. This has to do with the Bank Secrecy Act

compliance. The public has been reading about the failure of Riggs

Bank to comply with the Bank Secrecy Act, especially in the area

of failure to file Suspicious Activity Reports, called SAR’s. You are

aware of all of this.

We are aware of the July 16, 2003 consent order issued by agreement between your office, the Office of Comptroller of the Currency, and Riggs Bank. The order required Riggs to significantly

improve and upgrade its compliance, internal controls, and audit

functions concerning Riggs’ duties under the Bank Secrecy Act,

within 60, 90, and 100 days, respectively.

Can you provide the Committee a brief overview of how the issue

of BSA—Bank Secrecy Act—compliance is handled by our examVerDate 11-MAY-2000 22:02 Nov 14, 2005 Jkt 000000 PO 00000 Frm 00043 Fmt 6633 Sfmt 6633 24076.TXT SBANK4 PsN: SBANK4
36

iners. Specifically, do the examiners look at a general program, a

list of activities or programs the bank engages in? Do the examiners ever look at individual transactions to gauge a bank’s compliance with the Bank Secrecy Act?

Has Riggs met the deadlines established in the order that I referred to just a minute ago? Are you satisfied with their progress

as the Comptroller of the Currency to date? And given the emphasis—I know this is a lot, but this is important—on the SAR’s, the

Suspicious Activity Reports, as a tool that would allow bank examiners, your bank examiners and others in the Government, to

gauge whether the integrity of the banking system is being exploited by criminals and terrorists?

Is the OCC adequately resourced, trained, and staffed to examine

the banks, under your jurisdiction, to fully inspect their compliance

with the Bank Secrecy Act? And you have recently named, I believe, is it Mark Levonin—is that his name? L-e-v-o-n-i-n—as the

Deputy Comptroller for Modeling and Analysis, a new position. Do

you see his duties as including a quantitative analysis of the risk

created within the banking community for failure to comply with

the Bank Secrecy Act requirements?

To better explain, will this gentleman, with his new post, create

models which will allow the Office of Comptroller of the Currency—

your office—and others within the Government to focus limited resources by using models to identify banks which are most at risk

to be used for illicit purposes, including criminal activity and especially terrorism? You are very familiar with this order, I know.

Comptroller HAWKE. If we may, Mr. Chairman, submit a response to those questions in writing, I would be pleased to do that.

Chairman SHELBY. Will you do this, and will you do it soon?

Comptroller HAWKE. Yes, sir.

Chairman SHELBY. Because this is a current object of concern to

not only this Committee, as the Banking Committee of jurisdiction

over this, but what people are reading and hearing and we know

has been going on.

Comptroller HAWKE. We will turn right to that.

Chairman SHELBY. Senator Sarbanes.

Senator SARBANES. Thank you, Mr. Chairman.

I know we have another panel, and we need to move along, but,

Comptroller Hawke, where does your budget come from?

Comptroller HAWKE. It comes principally from assessments that

we levy on national banks.

Senator SARBANES. So the more national banks there, and the

larger they are, the more potential you have for a bigger budget;

is that right?

Comptroller HAWKE. Our assessments are based on assets, and

there is a sliding scale of assets, so there is a relationship between

the volume of assets we supervise and our assessment revenue.

Senator SARBANES. When the OTS did its preemption ruling, did

some financial institution subsequently shift their charters into

charters that brought them under the jurisdiction of the OTS instead of State or Federal banking authorities?

Comptroller HAWKE. Conversions occur quite frequently, Senator.

I cannot pinpoint whether a conversion of a national bank to a

37

thrift or vice versa occurred in particular relationship to an OTS

regulation.

Senator SARBANES. Well, you have been concerned about your

budgetary situation. I believe I think I can remember you testifying

at the table on previous occasions that you were not getting the

same number of institutions of the same size and that that was

creating budgetary problems for you.

Comptroller HAWKE. Not at all, Senator. Our budget has been in

extremely good shape during all of the years that I have been

Comptroller. It has been well-balanced. We do not spend everything that we get. We have created a significant contingency reserve.

What I had addressed this Committee about before was the enormous inequity that exists between State and national banks because the Federal Reserve and the FDIC, in effect, provide a billion

dollars a year in subsidy to State banks by absorbing the cost of

their supervision. National banks pay the full cost of their supervision. State banks pay about 20 percent of the cost of their supervision, and I think that is an inequity that should be addressed.

That is one of the principal recruiting devices that the States use

in trying to persuade national banks to convert to a State charter.

Senator SARBANES. The Wall Street Journal has an article in

which they say, speaking about you, ‘‘Still, he does not apologize

for using the OCC’s power to override State and local laws

designed to protect consumers. Enjoying this aid provides an incentive banks to sign up with the OCC. He says it is one of the advantages of a national charter, ‘and I am not the least bit ashamed to

promote it.’ ’’ Actually, they put that part of it in quotation marks.

Comptroller HAWKE. Yes. There is no question, Senator, that preemption is an important attribute of the national bank charter, and

I am a strong believer in the quality of the national bank charter.

Senator SARBANES. Now, you seem to be getting some pretty

quick results. I gather that on March 22, HSBC announced that it

was going to apply for a national shift from a New York charter,

but to a national charter; is that correct?

Comptroller HAWKE. Yes. HSBC is a very sophisticated organization that knows all of the rules. Their decision on charter choice

is something that takes a lot of factors into account. I should point

out that HSBC was a national bank until about 10 years ago, and

5 years ago they acquired a large national bank in New York. They

know what the value of the national bank charter is, and they have

made a decision, on their own, based on a variety of corporate considerations.

Senator SARBANES. Mr. Chairman, I am going to quote from it

a little bit, and then I would like to include in the record——

Chairman SHELBY. Without objection.

Senator SARBANES. —a statement put out by the Conference of

State Bank of Supervisors with respect to this HSBC announcement that they were filing an application with the Office of the

Comptroller of the Currency to convert its U.S. bank operations

from its New York charter to a national charter. Thereby, highlighting the State’s serious concerns about recent sweeping preemptions from the OCC for national banks and their subsidiaries.

They all go on to say:

38

We are encouraged that HSBC has indicated that it intends to maintain Household, HFC, as a State-licensed affiliate, in compliance with State laws and the historic settlement with State attorneys general and banking departments.

And we know something around here about the practices of

Household that led to those.

However, the loopholes created by the OCC’s recent regulations preempting State

consumer protection licensing and enforcement laws, unfortunately, create incentives to do otherwise.

In January, the OCC unilaterally preempted State laws regulating the operating

subsidiaries of national banks. That action has created opportunities for financial

institutions to escape State supervision and State enforcement while effectively operating outside of the national bank.

If the OCC’s regulations stand and HSBC were to convert Household to an operating subsidiary, they could shield Household from enforcement of the agreement

it reached with the States. This change in structure would require not much more

than a move on HSBC’s organizational chart. Household would still be a State-chartered corporate entity, but the State’s authority would be voided.

While the OCC’s regulations may seem esoteric, the consequences are very real

for American consumers.

And I want to inject my own comment at this point here. You

said earlier, when we were having a discussion, well, these are lawyers’ issues you said, when we were arguing about the preemption.

They are people’s issues. You might characterize them as lawyers’

issues, and they may get resolved in a judicial proceeding, but the

impact of them are on people, real, live people, many of whom are

exploited and taken advantage of.

This statement goes on to say,

According to the OCC, the States no longer have the authority to investigate or

enter into enforcement agreements with an entity like Household if it is a national

bank or a State-chartered operating subsidiary of a national bank.

This makes no sense to the American public. State financial regulators and attorneys general have been at the forefront of pursuing predatory lending and a host

of other consumer abuses. We believe the local accountability must be a part of our

Nation’s new and rapidly evolving system of nationwide financial services. As an organization, the Conference of State Bank Supervisors is committed to a system of

financial regulation that is responsive to consumers at the State level, while also

evolving to provide a rational environment for all financial institutions, large and

small, to operate.

That seems to me to be a good, common-sense statement, and I

think it, in part, explains why there is so much concern about the

actions you have taken.

Thank you.

Comptroller HAWKE. Let me just say, on Household, we are not

contemplating doing anything that would change the applicability

of the settlement agreement. The Household entity that is the subject of that agreement is a holding company subsidiary and not

part of the bank.

And on this issue, Senator, of operating subsidiaries, I want to

point out again that the only activities that operating subsidiaries

can engage in are those that are permissible for the parent bank.

All of these activities could just as readily be carried on in the parent bank and, if they were, there would be no question at all about

the inapplicability of State law or the inapplicability of State law

enforcement jurisdiction.

Senator SARBANES. Why do you think they use the operating subsidiaries?

Comptroller HAWKE. There are a whole host of reasons, Senator,

why institutions use the operating subsidiary. Sometimes it is an

39

accident of the way the company happened to get into the business.

Sometimes they use it for the establishment of different compensation plans within the organization. There are a whole variety of

reasons why they do it.

Chairman SHELBY. Thank you. I thank all of you gentlemen. We

have another panel here, and I want to thank them for the indulgence. Thank you very much.

Chairman SHELBY. Our second panel will be Mr. Martin Eakes,

Chief Executive Officer, Center for Responsible Lending; Mr. Joe

Belew, President, Consumer Bankers Association; Mr. Walt

McDonald, President, National Association of Realtors®; Mr. William M. Isaac, Chairman, The Secura Group; Mr. Art Wilmarth,

Professor of Law, George Washington University Law Center; Mr.

James McLaughlin, Director, Regulatory and Trust Affairs, American Bankers Association.

Gentlemen, if you will all take your seats at the table. Your written testimony will be made part of the record of the Banking Committee in its entirety, and I would ask that you briefly sum up your

remarks.

Mr. Eakes, we will start with you, if we could. Thank you, sir.

STATEMENT OF MARTIN EAKES

CHIEF EXECUTIVE OFFICER

CENTER FOR RESPONSIBLE LENDING

Mr. EAKES. Good afternoon. Chairman Shelby, Ranking Member

Sarbanes, and Members of the Committee, thank you for holding

this important hearing.

Senator SARBANES. I think if you pull that microphone closer to

you, it would be helpful.

Mr. EAKES. I am the CEO of Self-Help, a community development lender based on North Carolina. With $1 billion of assets, we

are the largest single nonprofit community development lending organization in the country, which makes us about the size of one

Bank of America branch, for perspective.

Self-Help is a lender. We are one of the oldest subprime lenders

in the country. In 1984, we started making loans to credit-impaired, minority, single parents. Now, 20 years later, we have provided financing of $3 billion to 37,000 families in 47 States. We

have had very few defaults. If a subprime lender has a high number of defaults or foreclosures, they are doing something wrong.

I am also CEO of an organization called the Center for Responsible Lending, a national organization with a staff of 40 lawyers

and business analysts that are dedicated to trying to stop predatory lending nationwide. It is nonpartisan, research, legal focused.

I and my staff helped craft the North Carolina bill, and we have

worked in many of the States that have passed predatory lending

bills modeled on the North Carolina bill.

I am not going to say too much about North Carolina unless you

ask questions, since my friend, Roy Cooper, was here earlier. What

I would like to jump to is to respond to some of the comments that

were made in the earlier panel.

The first is the statement by Comptroller Hawke that he has no

evidence of national banks being involved in predatory lending. I

have to say that for that statement to hold, it means the OCC has

40

to have covered its eyes and closed its ears because it has been

hearing a ton from people for at least the last 5 years. Let me give

you examples.

The first was Equicredit, which was a subprime lending organization as an operating subsidiary of Barnett Bank. Bank of America, which is one of my favorite banks, we have some of the greatest banks in the world based in North Carolina, and I have worked

with every single one of them. Barnett Bank had this subsidiary

that turned out to be one of the worst predatory lenders in the

country, second only to the Associates First Capital. When Bank of

America—Nations Bank at that time—took it over, they inherited

this company that had all kinds of problems, had the largest number of foreclosures in Chicago and New York City of any lender.

Not once, never, did the OCC intervene to get restitution for—I am

not talking about hundreds of borrowers here. I am talking about

tens of thousands.

Second, First Union, which owned the Money Story—and, again,

to its credit, shut it down, as Bank of America did Equicredit—documented abuses in almost every State where the Money Store operated.

Third, Guaranty National Bank of Tallahassee, as you have

heard, was doing thousands of predatory second mortgages and

renting its charter to other lenders in North Carolina and other

States. The OCC never once provided restitution to any of these

borrowers. It took private enforcement and attorneys general.

These were all national banks.

First Horizon in New York, which basically decided that it would

not cancel a loan even after the loan date, had come and gone. The

person had been paying by automatic debit.

Mr. Hawke’s statement that, if you tell us, we can, with just a

glance, get a resolution I think is really disingenuous. For every set

of abuses you have, you only have one out of 200 people who has

the savvy and the fortitude to stand up and be the champion to

fight an abuse. If you solve it for just that one person and you ignore it for the other 199, you have not solve the problem at all.

Finally, Wells Fargo. I have personally petitioned and provided

information. Wells Fargo has become one of the most abusive lenders in the country. The OCC’s response to me when I requested a

hearing, it reminds me of some of the comments we have just had.

I actually got a written response back from the OCC that said, ‘‘We

have received written comments. We see no reason to have any

kind of hearing. The hearing won’t add any additional substance.’’

On that point, I can tell you with 100 percent certainty that they

are wrong. Until you have, as I have, met with hundreds if not

thousands of people who break down and cry in front of you because they no longer have a home because of these abuses, you do

not understand the problem of predatory lending.

What I really want to say is that the OCC is simply not capable

of being an honest broker in the area of abusive loans. It is a structural problem. First, they have a financial conflict of interest. We

have heard that. Bank of America pays $40 million of fees each

year, thereabouts, to the OCC. How easy would it be for the OCC

to say we are going to really clamp down on you?

41

Now, Bank of America is a good bank. They do not have any

problems. Let us just stipulate that. But if they did, if they inherited it, how easy would it be to say we are going to cut 10 percent

of your budget at the OCC by having this one bank leave? We have

had estimates that the top 10 banks represent 30 to 40 percent of

the total operating budget of the OCC.

Comptroller Hawke has made personal appeals to AmSouth,

banks in Alabama. BB&T has half of the State banking assets for

State banks in North Carolina. If they were recruited to become a

national bank, the supervision in North Carolina would be significantly hurt.

The second reason that they are structurally unable to work in

this arena is that their interest is almost exclusively safety and

soundness. It trumps all other concerns. Even in its website and

its consumer pamphlets, it states: The OCC does not have a mandate to engage in consumer advocacy, but is responsible for ensuring the safety and soundness of the national banking system.

Number three, the OCC operates in secret. Essentially because

they believe that having public debate about a bank’s problems

could create a safety and soundness problem, they do not believe

that anything should be aired. In normal law enforcement, you

would think that having public enforcement is very critical to providing deterrence to other bad actors. So unlike HUD, the Treasury, the Federal Reserve, the GSE’s, and Congress, the OCC has

never held a hearing on predatory lending concerns whatsoever,

ever. Even when the Associates was being purchased by Citibank,

it was viewed by the advocate community, by the lending community as the most notorious predatory lending acquisition in history,

the OCC said, well, we just do not have the authority, even though

they are three little banks connected with Associates, we do not

have the authority.

Next, when Wells Fargo said we are going to combine all of the

20 different bank charters we have into a single bank, with some

newspaper reporting that the reason for that was they did not

want to have any privacy concerns if there was information shared

among those 20 banks, we requested a hearing of the OCC and we

documented the Wells Fargo abusive lending, and the response

was, well, we are not going to have a hearing either. Clearly within

their power.

My problem is not whether the OCC could have the ability to

take on the mantle of consumer protection. Mine is from the real

world, down in the trenches with lots of borrowers to tell you that

the OCC simply does not have the will or the backbone to stand

up and solve these problems.

My fourth reason: The OCC never requires restitution. It is one

thing to find a problem after it is already done, after people have

already lost their homes. In the mortgage lending arena, with all

the publicity of predatory lending that we have had over the years,

the OCC, to my knowledge, has one enforcement action ever of 30

borrowers for $1 million in the mortgage lending arena. That is pathetic.

Finally, the fifth reason, the OCC simply does not understand

predatory mortgage lending. They just do not understand it. The

OCC defines predatory lending as collateral-based, asset-based

42

lending. I have to tell you, that is not the problem. Maybe that is

2 percent of the problem, maybe 3 percent, and that definition

would be great if it really was the heart of the matter. But it is

not. The problem of program is a focus on individual homeowners

and the effort to strip the value of those homes away from them—

not to take the home. In fact, it is this hateful case of musical

chairs. The lenders want to have as much equity stripped but not

be the last lender that actually ends up foreclosing. The actual

foreclosing lender will lose $20,000 or $30,000, so no one wants to

be that. They want to calculate: Can I be the next to the last lender

that strips away the equity?

The OCC, in publishing its rules, had to trash all of the State

predatory lending bills, including North Carolina, reflections on

New Jersey and others, all of which I have been involved in.

I have been as provocative as I can be over the last 5 years saying that any lender who finds a single borrower who cannot get

credit in North Carolina, bring them to me and I will make the

loan. Guess how many borrowers I have had presented? I have said

it in every forum. I have spoken probably a thousand times on the

topic. Never, not a one. They say, well, that is not fair for you to

ask. I said, well, that is what was asked of me when we started

the North Carolina predatory lending bill. Show me the abuses.

Show me that it is not just an anecdotal, case-by-case, one time.

And I showed dozens first, and then hundreds, and eventually

thousands.

So all I am saying is show me one, give me one. There are none.

Our bank commissioner says he gets 1,000 complaints. Not a single

complaint from a borrower who could not get a loan. It is just absolute, outright disinformation. And the OCC has played a role in

that. They had a working paper which stated, just cavalierly, that

all of these laws are eliminating access to credit for poor people.

There is no evidence of that. Their working paper never even

looked at the fees piece of the problem. They were simply saying,

well, the interest rate may correlate with risk. The problem is that

up-front fees, back-end prepayment penalty fees, single-premium

credit insurance, all these things that are loaded into a loan so that

a borrower who does not understand loses their cash value equity.

The example I give is an elderly grandmother who has $50,000

of cash, provides multiple ways for someone to con her out of her

$50,000. There are a thousand different ways. But if that same person has $50,000 of equity in a house, there is only one way, and

that is to refinance the loan and add fees into the value that essentially eliminate—you want me to wrap it up? Is that what you are

saying?

In conclusion, I could talk about the legal issues, but it is really

more a moral issue and wisdom issue that I want to present to you.

I believe that Congress should intervene to overturn these rules. It

will do great harm. In North Carolina, we had the banks come together with the credit unions, which never happens on any topic.

And they come together to request a law that would govern all of

them, the banks, large and small, State and Federal, credit unions,

asking because we want to stop the scourge in our State and the

damage to our own reputations, we are willing to have a law that

applies to every one of us. When do you remember industry coming

43

in jointly to ask for a law and to have one distant Federal bureaucrat say we are going to wipe that out with the strike of a pen?

I have to tell you, I did not choose to get into this work. I chose

to help people build wealth through homeownership. To have him

wipe that away is really infuriating to me.

Thank you.

Chairman SHELBY. Mr. Belew.

STATEMENT OF JOE BELEW

PRESIDENT, CONSUMER BANKERS ASSOCIATION

Mr. BELEW. Good afternoon, Mr. Chairman, Members of the

Committee, Senator Sarbanes. My name is Joe Belew. I am President of the Consumer Bankers Association, and we very much appreciate the chance to give voice to our views on these issues. I will

try to keep my remarks brief.

As I have made clear in my written testimony, the CBA very

strongly supports the OCC’s recent rulemaking efforts to clarify the

extent of its authority over national banks and their operating subsidiaries. These actions are in keeping with the letter and the spirit

of the National Bank Act as interpreted by over a century of court

opinions. They were only finalized after an extensive notice and

comment period that generated over 2,600 comments.

The proposals were issued against a backdrop of stringent OCC

examinations and a broad sweep of consumer protection, as well as

safety and soundness laws. We call the Committee’s attention to

the list we have provided of all these Federal statutes. They cover

virtually every imaginable area of consumer protection.

OCC enforcement is effective, in our view, because the agency

employs nearly 1,700 examiners to ensure compliance and safe and

sound operations. Many CBA members house some of the 300 or

so on-site examiners who are engaged in continuous—24/7 almost—

supervision of the largest banks.

Furthermore, the OCC has been forceful in enforcement of these

laws, when necessary. The Agency wants national banks to remain

the gold standard in their dealings with the public and to take

swift action in the rare instances when it discovers wrongdoing.

This tough approach by the OCC is not new. For instance, as far

back as June 2000, OCC Counsel Julie Williams put the industry

on notice at a CBA conference that the Agency would use all its

powers to anticipate and address any predatory lending concerns,

one reason such problems do not usually show up in national

banks. Another reason is that our members, predominantly national banks, are also going well beyond the requirements of the

law to promote financial literacy programs that will help shield

consumers, and these help customers of other institutions and

other companies.

For the fourth year, we are surveying our member banks to determine the extent of their involvement in financial literacy efforts

as a measure of their sense of responsibility to the communities

and the markets they serve. The last survey showed that 98 percent of our respondents sponsor financial literacy programs or partner with others on financial education initiatives. The preliminary

results of the current survey show that the involvement of banks

in the financial education of homebuyers, students, the elderly, and

44

small business continues. We will be pleased to share the results

when they appear.

Financial literacy efforts are important, but they are not enough.

It is widely acknowledged that national banks are not the main

point of the problem. The OCC still is vigilant in its oversight. The

old expression holds true: ‘‘An ounce of prevention is worth a pound

of cure.’’ And that is why the Agency’s extensive examination and

oversight, coupled with swift enforcement when needed, lead us to

support the OCC’s rules as sound public policy.

I must say, departing from my text, that the bankers that I talk

to do not share a view that the OCC is somehow lax and asleep

at the wheel.

To be sure, there is another reason for our support, to be candid,

and that is, the banks’ need for predictability and uniformity across

their operations. CBA’s members, generally the country’s larger financial institutions, typically operate in multiple States. Some are

in over half the States of the Union. Many operate literally thousands of branches and have millions of customers, many of whom

relocate and maintain their old principal banking relationship in

their new State.

Increasingly, in recent years, national banks have been facing

the intrusion of State and local laws on their federally created powers. These actions created the need for greater clarity and predictability for the banks and their subs operating in multiple jurisdictions nationwide under the uniform guidance of the OCC. And

these regulations help provide that guidance and that clarity.

In summary, we support the OCC rules as being firmly grounded

in historical precedent and Congressional law, and we welcome the

clarity they provide for national bank operations.

We thank you again for the opportunity to be with you.

Chairman SHELBY. Mr. McDonald.

STATEMENT OF WALTER T. McDONALD

PRESIDENT, NATIONAL ASSOCIATION OF REALTORS®

Mr. MCDONALD. Chairman Shelby, Senator Sarbanes and, Members of the Committee, thank you very much for holding this hearing and for inviting us here today to share the views of the National Association of Realtors. My name is Walt McDonald, and I

am broker-owner of Walt McDonald Real Estate, a single-office,

independent firm in Riverside, California, specializing in property

sales, leasing, and lending. I have been a Realtor for 40 years, and

as President of the National Association of Realtors, I represent

over 1 million Realtors—Realtors who are involved in all aspects of

the residential and commercial real estate industry.

NAR’s members operate real estate brokerage, leasing, management companies, and many own affiliated businesses such as title

agencies and mortgage lending companies. NAR members represent roughly 80 percent of consumers who buy and sell homes in

America.

Let me be clear at the outset. The OCC preemption rule favors

big business at the expense of the American consumer. It is bad for

consumers, it is bad for small business, and it is bad for Realtors.

But do not take just our word for it. There are many others—

and you have heard from a lot of them today—who oppose this rule

45

and the improper overstepping of the OCC, including all 50 State

attorneys general, all 50 State banking supervisors, all 50 Governors, the National Conference of State Legislators, State real estate commissioners, AARP, Consumer Federation of America, to

name just a few.

This rule is the latest in a series of Federal regulators’ decisions

that give special treatment to big corporations without considering

the potential negative impact on consumers. The rule is helping to

create an industry that is dominated by a few large mega-banks,

leaving consumers with fewer choices and higher fees. And it sends

a clear message to consumers that the Federal Government cares

more about corporate America than about American consumers.

What is more, this rule and its tremendous potential impact has

been made without input from Congress. NAR believes that policy

decisions having such a profound effect on a whole industry, on

States rights, and on consumers should only be made by elected officials in Congress, and that is why we are here today urging the

Members of this Committee and the entire Congress to reassert its

authority in this area and to rein in the regulatory authorities and

to repeal the action of the OCC.

As recently as last week at the House Financial Services Committee oversight hearing on the OCC, Comptroller Hawke insisted

that real estate brokerage is not affected by this rule. While its response is consistent with the correspondence between OCC and

NAR’s offices, it fails to recognize the immediate anticompetitive effect that this rule has on our members who own affiliated lending

operations.

Realtors will continue to be subject to all State laws, licensing,

and registration requirements. These rules protect consumers, and

they are good for our business, and we are happy to comply with

them. Unfortunately, though, under the OCC preemption rule, national banks and their operating subsidiaries no longer will need

to abide by these same rules and these same laws. It is simply not

fair that the local mortgage company will be required to pay various fees to the State and comply with numerous State regulations,

while the local branch for the mega-bank next door will be exempt

from those same rules and laws.

At a time when the mega-banks are becoming even larger and

more profitable, why does the OCC think that it is necessary to remove State oversight and State regulation? State laws, regulations,

and consumer protections have not kept big banks from enjoying

the largest profit margin that they have earned in decades. If the

current regulatory system is not broken, why does the OCC need

to fix it?

Moreover, this rule has other potential negative consequences for

both consumers and the real estate industry. Before February 12,

mortgage brokers in my home State of California had to be licensed. Now if they work for a national bank or its operating subsidiary, mortgage brokers will not need that license. But there is

no comparable Federal mortgage broker license or regulation, and

neither the State law enforcement nor real estate officials can investigate or regulate those mortgage brokers.

NAR is disappointed that Comptroller Hawke once again is unwilling to acknowledge that his new rule clearly and unmistakably

46

declares that any State law that obstructs, impairs, or conditions

a national bank’s ability to fully exercise its powers to conduct active business is preempted. The impact of the new rule goes well

beyond the type of laws that are listed in this rule. The Comptroller’s rule gives national banks wide latitude to simply ignore any

State law that they conclude conditions their activities.

It is difficult to imagine any State law that would not in some

way condition banking. It is this open-ended nature of the rule that

gives Realtors so much concern. Perhaps—and I think the question

was asked earlier, but perhaps this Committee can point to the

condition language of the rule and ask the question of Mr. Hawke

as to his view of the breadth of that term of the language. No one

else has been able to gain any specific definition from OCC.

NAR is concerned that the Comptroller’s new rule is yet another

link in the chain that will lead to national banks engaging in activities beyond their current activities, such as real estate brokerage, while remaining unconstrained by State consumer protection

safeguards and licensing requirements. It is clear to NAR that the

expansion of national bank activities at the expense of State consumer protections is bad for consumers, it is bad for the community-based businesses that serve them best, and NAR is firmly

committed to ensuring that Congress carefully scrutinizes the implications of the Comptroller’s actions and takes the appropriate

legislative action to ensure that only Congress make such profound

policy decisions.

I thank you again for the opportunity to be here today, and I look

forward to any questions you might have.

Chairman SHELBY. Mr. Isaac.

STATEMENT OF WILLIAM M. ISAAC

CHAIRMAN, THE SECURA GROUP

Mr. ISAAC. Thank you, Mr. Chairman, Members of the Committee. It is my pleasure to be here. I am Bill Isaac, Chairman of

the Secura Group, and prior to founding Secura in 1986, I served

for 8 years on the Board of the FDIC, including 5 years as Chairman during the banking crisis of the 1980’s. My entire career has

been spent in the financial services industry in one capacity or another, including a number of years as an attorney specializing in

banking law.

I must say I am confused by the uproar over the Comptroller’s

regulations because the Comptroller says that he is attempting to

codify, not change existing law, and I could not agree more. When

I went into the banking law practice in 1969, that was the law of

the land. I was representing national banks and State banks, and

everyone understood that national banks were governed by the

Comptroller of the Currency with respect to their activities, their

deposit and loan-taking activities, and that the States had no authority over them. And then I became general counsel of a bank,

and I still understood that. And then I became Chairman of the

FDIC and I still understood that. And so I do not understand how

anybody thinks that the Comptroller of the Currency has done anything to change existing law. He simply is putting it down in one

easy place for everybody to see and make their judgments about it.

If he is acting illegally, I presume the courts will overturn him. But

47

I do not think we would be having these hearings today if the attorneys general really thought that he was going to get overturned.

I think they believe that what he the Comptroller has done is perfectly legal under existing law. They do not like existing law, and

they would like the Congress to change it. And so that is why we

are having these hearings.

The Conference of State Bank Supervisors and the attorneys general have been claiming that the Comptroller is forging new ground

and, if his actions are upheld, it is going to undermine the dual or

State-Federal, banking system and will injure consumers. My personal view is that nothing could be further from the truth. I believe

the Comptroller’s preemption regulations are proconsumer. They

are very much in the interest of all banks, State and national chartered. The Comptroller’s rules are essential to the preservation of

our dual banking system because if the States are allowed to regulate national banks, we will not have a national banking system

anymore.

The Comptroller’s rules are fully in accord with 140 years of statutory and case law, including decisions by the U.S. Supreme Court,

and are quite similar to the Federal preemption rules governing

federally chartered thrift and credit unions, which do not seem to

be in dispute at all. I am not sure why we are singling out banks

and not talking about credit unions and thrifts, if we are going to

talk about this issue.

The larger national banks do business throughout the Nation,

and they cannot operate effectively and efficiently if they must tailor their products to the laws of 50 States and who knows how

many local jurisdictions. As I have sat through the hearing today

I have noticed that this issue is not discussed at all. How are these

banks going to operate if they have to comply with every law that

every city council decides they want to impose on a bank?

We had an example a few years ago in Santa Monica, when

Santa Monica’s City Council decided to regulate ATM fees different

than anybody else in California or the Nation was doing. The large

banks said to their customers in Santa Monica, ‘‘you cannot do

business in our ATM machines until this gets straightened out.’’ I

do not believe this was a proconsumer move on the part of Santa

Monica. Ultimately, the courts overturned the Santa Monica City

Council and said it could not interfere with the national banks’

ATM charges.

Inefficient regulation takes an even higher toll on regional or

community banks that serve customers across jurisdictional lines,

whether they are county, State, or city lines. The smaller the bank,

the smaller the base of customers over which to apply the extra

compliance, legal, technology, and paperwork expenses caused by

multiple regulatory schemes. Those who care about the vitality of

our Nation’s regional and community banks should not overlook

the impact of this issue.

The contention of the various State attorneys general and bank

commissioners that they are more effective than the Comptroller of

the Currency in enforcing their laws, their consumer protection

measures, strains credulity. The Comptroller has nearly 2,000 supervisory personnel dealing with national banks each day. Those

personnel have enormous legal authority and even greater moral

48

suasion with respect to national banks. While an attorney general

is huffing and puffing and threatening to go to court against a

bank without much effect, all it takes is a frown from the Comptroller of the Currency to bring a national bank into line. This is

particularly true of the larger banks, which simply have no choice

but to be on the good side of the Comptroller’s office.

I worked closely with State regulators throughout the country

when I served as Chairman of the FDIC. Indeed, the FDIC shared

oversight with the States of some 8,000 State banks. I know of no

State banking department that is better equipped than the Comptroller of the Currency to supervise banks for either compliance or

safety and soundness purposes.

I want to make one last point, because I am a little bit over my

time. Many if not most of the State banking departments, when I

was Chairman of the FDIC, were chronically short of financial and

personnel resources and relied heavily on the FDIC to assist in the

supervision of their banks and in the training of their personnel.

To my knowledge, they still rely on the FDIC heavily for both.

I find it somewhat difficult to imagine how or where the State

banking departments could possibly find the resources to take on

the additional duties of overseeing national banks within their borders. Indeed, the chart shown in my written testimony reveals that

the Comptroller of the Currency has nearly one examiner for every

bank under its supervision, while the State banking departments

have one examiner for every 48 institutions under their supervision. It is kind of like the dog chasing the car. I do not know

what they are going to do when they catch it. I hope they do not.

Thank you.

Chairman SHELBY. Mr. Wilmarth.

STATEMENT OF ARTHUR E. WILMARTH, JR.

PROFESSOR OF LAW

GEORGE WASHINGTON UNIVERSITY LAW SCHOOL

Mr. WILMARTH. Thank you, Chairman Shelby, Senator Sarbanes,

and Members of the Committee. I appreciate this opportunity to

appear before you to discuss my concerns regarding these two regulations that the OCC has issued. The scope of the OCC’s regulations is really not in dispute. As Comptroller Hawke has said, the

new preemption regulations effectively bar the application of all

State laws to national banks except in areas where Congress has

incorporated State-law standards into a Federal statute or where

the OCC deems that State laws have only a ‘‘incidental’’ effect on

national banks. In describing what the term ‘‘incidental’’ means,

the OCC has said that a State law is incidental only if it is part

of the ‘‘legal infrastructure’’ that makes it practicable for national

banks to conduct their federally authorized activities. According to

the OCC, a State law may not regulate the manner or content of

the business of banking authorized for national banks.

So, in other words, State laws apply to national banks only if the

OCC finds that they promote the ability of national banks to do

business. And, of course, as you have heard, the OCC’s preemption

rule applies not only to national banks themselves, but also to their

State-chartered operating subsidiaries.

49

Comptroller Hawke has also said that the OCC’s preemption and

visitorial powers rules are deliberately designed to provide the

same field preemption regime to national banks that the OTS has

established for Federal savings associations and their operating

subsidiaries.

The OCC’s new regulation on visitorial powers prohibits any attempt by State officials to sue in Federal or State courts to compel

national banks or their operating subsidiaries to comply with State

laws. As further explained in OCC Advisory Letter 2002–9, the

OCC exercises sole and unfettered discretion to decide whether any

particular State law is applicable to a national bank, and even if

it is applicable, whether that law should be enforced. The States

have no role to play beyond simply providing a referral of information to the OCC.

Unless the OCC’s new rules are overturned by Congress or the

courts, I believe the rules will destroy the competitive balance between State and national banks that Congress has long maintained

within the dual banking system. The dual banking system simply

cannot survive unless there is a basic parity of competitive opportunities between State and national banks.

In addition, the OCC rules regarding operating subsidiaries will

seriously impair the States’ authority to regulate State-chartered

corporations and also to protect consumers from illegal, fraudulent,

and unfair financial practices.

There are several reasons why, in my opinion, the OCC does not

have authority to adopt its new rules.

First, the OCC’s attempt to create a regime of de facto field preemption is contrary, in my view, to a long line of decisions issued

by the U.S. Supreme Court. For example, the U.S. Supreme Court

said in Atherton v. FDIC, in 1997, that ‘‘federally chartered banks

are subject to State law.’’ And as you have heard, the 1996 Supreme Court’s decision in Barnett Bank said that State laws apply

to national banks unless they ‘‘prevent or significantly interfere

with’’ the ability of national banks to exercise their Congressionally

authorized powers. Congress specifically endorsed the Barrett Bank

particular standard as part of the Gramm-Leach-Bliley Act.

I would also like to refer to the decision of National Bank v.

Commonwealth in 1870, which is referred to in both Atherton and

Barnett. In that case, the Supreme Court expressly distinguished

McCulloch v. Maryland, which the Comptroller is fond of quoting.

In McCulloch, the Supreme Court found that a particular State tax

was being used to destroy the Second Bank of the United States.

In Commonwealth, the Supreme Court said that where that is not

the case, where the State is not trying to destroy a national bank,

then national banks are ‘‘subject to the laws of the State, and are

governed in their daily course of business far more by the laws of

the State than of the Nation.’’

I would also like to refer to the case of Osborn v. Bank of United

States, an opinion written by Chief Justice John Marshall, in which

he elaborated on his earlier opinion McCulloch. In Osborn, Chief

Justice Marshall explained that it was very important to understand that the Second Bank of the United States was the fiscal

agent of the U.S. Government. It was, in practical effect, the cenVerDate 11-MAY-2000 22:02 Nov 14, 2005 Jkt 000000 PO 00000 Frm 00057 Fmt 6633 Sfmt 6633 24076.TXT SBANK4 PsN: SBANK4
50

tral bank and was undertaking important public functions for the

Federal Government.

Chairman SHELBY. You are referring to McCulloch v. Maryland?

Mr. WILMARTH. I am discussing Osborn v. Bank of United States,

which was the next case.

Chairman SHELBY. Okay.

Mr. WILMARTH. In Osborn, Chief Justice Marshall was trying to

defend what he had done in McCulloch. And he said that if the Second Bank of the United States was carrying on the ‘‘mere business

of banking,’’ a merely private business, then that business could be

lawfully taxed, regulated, or restrained by the States, even if it was

carried on within a Federal corporation. The Second Bank’s Federal

charter did not provide an immunity from State laws. What gave

the Bank its immunity was the fact that it was carrying on important public functions.

Today’s national banks are not fiscal agents of the U.S. Government. They do not issue currency. They are not the funding device

they used to be when they bought bonds of the Federal Government and issued currency based on those bonds. The Federal Reserve Act of 1913 gave all those functions to the Federal Reserve

Board and the Federal Reserve System.

As the dissenting opinion pointed out in the First Agricultural

National Bank case in 1968—and the majority opinion did not disagree—today’s national banks are entirely private entities carrying

on a private business. So, under Chief Justice Marshall’s analysis

in Osborn v. Bank of United States, they do not have any blanket

immunity from State regulation. They do have an immunity when

State laws directly conflict powers that with you, Congress, have

granted to them. But the OCC’s news rules go far beyond that. To

paraphrase Comptroller Hawke, he has said that unless you, the

Congress, declare that State laws apply to national banks, the OCC

will preempt all State laws that impose any condition or impediment on national banks. That simply is not the standard that the

Supreme Court has articulated in the cases I have discussed, nor

is it the standard that Congress adopted in the Riegle-Neal Act of

1994 or in the Gramm-Leach-Bliley Act of 1999.

Perhaps if questions permit, I would like to indicate further reasons why I believe that the OCC simply did not have authority to

adopt these rules. To conclude, in cases like New York v. FERC,

535 U.S. 1, at page 18, and Ernst & Ernst v. Hochfelder, 425 U.S.

185, at pages 213 and 214, the Supreme Court declared that a Federal agency has no power to make law. It has only the power to

carry into effect the authority granted to it by Congress. And an

agency has no power to preempt State law on its own.

Chairman SHELBY. You believe this is an overreach, do you not?

Mr. WILMARTH. Yes, in my humble opinion, it is by far an overreach. And I think that is why you are seeing the extent of opposition and controversy surrounding the OCC’s rules. If it were indeed

not a matter of great controversy. I do not think we would all be

here today.

Thank you very much. I appreciate the opportunity to appear before your Committee.

Chairman SHELBY. Thank you, sir.

Mr. McLaughlin.

51

STATEMENT OF JAMES D. McLAUGHLIN

DIRECTOR, REGULATORY AND TRUST AFFAIRS

AMERICAN BANKERS ASSOCIATION

Mr. MCLAUGHLIN. Thank you, Mr. Chairman, Members of the

Committee. I am Jim McLaughlin from the American Bankers Association. We appreciate your holding this hearing.

ABA strongly supports this rule. I would like to summarize three

key points from my written statement.

First, in creating a national banking system, Congress explicitly

gave to the OCC exclusive powers to regulate national banks. Congress also gave the Comptroller the authority to preempt State and

local laws that would conflict with those powers. It was 140 years

ago that Congress clearly gave the OCC the authority that is used

in this rule, and previous Comptrollers have used that power in

many instances over the 140 years.

Furthermore, court after court, including the Supreme Court

many times—and I will engage my associate in that debate if you

would like—has upheld that authority as shown in the list of cases

attached to my testimony.

Despite the controversy, to a very large degree the OCC rule does

not break new ground. The areas covered in the rule have, in many

cases, already been subject to preemption by the OCC. In the past,

these preemptive rules went forward generally on a case-by-case

basis. That approach worked when the State and local actions that

were preempted occurred infrequently. But recently we have seen

a proliferation of State and local actions. Several have ended upon

the courts where preemption was upheld.

That leads to my second point. This rule is needed to make it

clear to all parties where the line on preemption is. While most

legal experts in this arena know that State and local laws that impinge on the fundamental activities of national banks are preempted, State and local officials have often proceeded despite the

virtual certainty that their efforts will be struck down by the

courts. In the meantime, national banks face costly uncertainty as

to how to proceed with the business. Banks, the OCC, and taxpayers of those State and local governments end up wasting considerable resources in litigation. This OCC rule will help to avoid that

uncertainty and litigation cost by bringing together in one place

what was, in fact, occurring on a case-by-case basis.

Third, we are concerned that what many of the opponents of this

rule are advocating would render the dual banking system virtually

meaningless. The areas addressed by the OCC rule—lending and

deposit-taking—are fundamental to the business of banking. If

State and local governments can regulate these most basic activities of national banks and if States can examine national banks,

what is left of the national system?

Finally, much of the debate over this rule has been in the context

of the need to address the terrible problem of predatory lending.

There are two approaches to predatory lending that we believe

would work well without undermining the dual banking system.

The first involves cooperation between the OCC and State and local

officials. The OCC has indicated its strong interest in this kind of

cooperation.

52

A second approach, which is not inconsistent with the first, is the

passage of targeted Federal legislation to address predatory lending. There are a number of areas where Congress has determined

that a Federal approach to a given consumer protection issue is

warranted. As you know, this is the approach recently taken by

Congress with respect to the Fair Credit Reporting Act. We would

be happy to work with your Committee, Mr. Chairman, should you

choose to consider a national approach to predatory lending.

Finally, if I may, Mr. Chairman, I would like to add a footnote

to my statement. I was very pleased to see the representative from

the National Association of Realtors here at the panel acknowledge

that real estate brokers are, in fact, competing in financial services

with national banks. He mentioned their mortgage affiliates. He

mentioned their title insurance and other insurance affiliates. We

welcome their competition. But I think that is a subject for another

hearing.

[Laughter.]

Chairman SHELBY. To Mr. Eakes, if the OCC had not come forward with these rules, what negative consequences would there

have been for national banks and their customers in their absence?

Mr. EAKES. Sorry, say it again? If they had not come forward, I

do not think there would be any.

Chairman SHELBY. None?

Mr. EAKES. Uniformity of rules is highly overrated.

Chairman SHELBY. Mr. Belew.

Mr. BELEW. Let me address his last point. Uniformity of rules is

not highly overrated. With the numbers of customers, as I pointed

out, and banks operating subject to at least 20 or 25 State laws,

there is quite a lot to be said for national uniformity among banks,

thrifts, and credit unions.

Now, I may not have answered the first part of your question.

Chairman SHELBY. You did all right.

Mr. BELEW. Thank you.

Chairman SHELBY. Well, I will just ask you: In other words, if

the Comptroller had not come forth with these rules, what would

have happened?

Mr. BELEW. Frankly, I think it would have left the landscape

open for vast numbers of class action suits and litigation. More to

the point, it leaves both consumers and the financial industry at

a loss as to what the rules really are, and we want one set of rules.

Chairman SHELBY. What impact will the new rules have on the

development and the enforcement of consumer protection standards, Mr. Eakes?

Mr. EAKES. Well, my point on uniformity is that democracy is

messy, so is Federalism. If you do not have the experimentation in

eastern North Carolina dealing with mobile homes to figure out

how do you solve that problem, and you just cut it off and say we

are going to have one standard that is a very weak standard, the

problem is that we will never address and solve the problem that

we all abhor.

Chairman SHELBY. Mr. McLaughlin, do you want to reply to

that? In other words, what impact will the new rules that the

Comptroller has brought forth have on the development and the

53

enforcement of consumer protection standards? It would preempt a

lot of the States, would it not?

Mr. MCLAUGHLIN. It would preempt some of the State laws, but

at the same time, we have seen consumer protecting initiatives

come from the OCC. This is part and parcel of the dual banking

system. The States charter, the States regulate and oversee Statechartered banks. The Federal Government charters, regulates, and

oversees national banks. And if you, as the Congress overseeing the

OCC, think that the OCC should do a better job enforcing consumer protection laws, you have that power. Similarly, each State

legislature has that authority over the State banking department.

Chairman SHELBY. Professor Wilmarth, I asked the previous

panel about the appropriate place to draw the preemption line. In

other words, where do you think the line needs to be drawn? How

do we do it?

Mr. WILMARTH. Well, I think the Barnett Bank decision tried to

give us guidance by saying that, yes, the States may not prevent

or significantly interfere with what you, the Congress, have authorized for national banks. Certainly the courts have found it possible

to apply that standard and to say: Is this a State condition that

is properly designed to meet a legitimate State interest and does

not represent a significant impairment or impediment to the national banks’ ability to conduct their federally authorized business?

Or is this a very onerous State restriction that greatly hampers the

ability of a national bank to exercise a particular power?

In Barnett Bank, the State of Florida was trying to prohibit the

exercise of an express national bank power. In the case of Franklin

National Bank v. New York, the State of New York tried to say

that a national bank could not advertise for savings deposits, could

not let it be known to the public that it was offering savings deposits. That was obviously a significant impairment on the ability of

national banks to do business. But the OCC’s view is that any

State condition, any impediment of any nature will be preempted,

which just sweeps the field clean.

So my own view is that the Barnett Bank standard establishes

the proper guidlines, standard, and there was no need for the OCC

to go beyond that standard. By going beyond Barnett Bank, particularly in the visitorial powers area, and by saying that we are

now going to prevent the State from bringing action in court to enforce the law, even against an operating subsidiary, the OCC is trying to prevent the kind of State enforcement that has proven to be

very effective and very necessary in the securities scandals, in the

mutual fund scandals, in some of the privacy violations. That State

enforcement simply won’t occur anymore.

Chairman SHELBY. Are you saying there will not be a remedy?

Mr. WILMARTH. Right. There will be no remedy. Essentially, as

Attorney General Cooper said, the OCC is taking a whole set of additional law enforcement authorities off the beat. We have seen in

other areas of this evolving, very complex financial services marketplace, that uniform Federal regulation is not able to catch all of

the abuses that are occurring.

Chairman SHELBY. On a long-term basis, what is your view as

to the impact of the rules on the operation of the dual banking system, Professor?

54

Mr. WILMARTH. Well, as I say in my written statement and in

a forthcoming article, the impact will be very severe. The decision

of HSBC to convert to a national bank charter has already been

mentioned. Another very significant development is the decision by

JP Morgan Chase to take all 300 of their consumer lending offices

outside the New York City metro area and put them into a Federal

savings bank charter. And they said in their press release: ‘‘We are

doing this because of preemption.’’ That was one of the big factors

behind their decision.

So, I think there is no doubt that if the OCC’s preemption standard stands, is not changed, within the next——

Chairman SHELBY. It will be a big attraction, won’t it?

Mr. WILMARTH. Within the next 5 to 10 years, I think there won’t

be a single large multi-State bank that will be operating under a

State charter. And then the question becomes: Can the States sustain any kind of meaningful banking system with only community

banks? At the same time, banks will no longer have any effective

choice of charter. There will not be much incentive for innovation

or flexibility among bank regulators. I actually think that the large

banks may well regret what they are now pursuing when they get

a regulator for which basically there is no exit, there is no option.

The dual banking system has made our economy unique, has

meant that all areas of our great country have been developed. If

you look north into Canada where they have had a uniform Federal

system with comprehensive Federal preemption, many people will

tell you that the banks up there are not involved in community development in the same way that they are down here. And you do

not have nearly as many banks being involved either.

Chairman SHELBY. Gentlemen, I appreciate your patience today.

It has been a long afternoon. The first panel took a lot of time. This

is an important hearing, and we appreciate your participation.

Thank you very much.

The hearing is adjourned.

[Whereupon, at 5:18 p.m., the hearing was adjourned.]

[Prepared statements, response to written questions, and additional material supplied for the record follow:]

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RESPONSE TO WRITTEN QUESTIONS OF SENATOR SHELBY

FROM JOHN D. HAWKE, JR.

Q.1. Can you provide the Committee a brief overview of how the

issue of BSA compliance is handled by your examiners? Specifically, do the examiners look at a general program—a sort of list of

activities or programs the bank engages in? Do the examiners ever

look at individual transactions to gauge a bank’s compliance with

the BSA?

A.1. The OCC has a longstanding commitment to combating money

laundering. We have always shared the Committee’s belief in the

importance of preventing the financial institutions we regulate

from being used, wittingly or unwittingly, to aid in money laundering and, with the events of September 11, we are now equally

vigilant about the need to combat terrorist financing. We remain

totally committed to working with the law enforcement community

to assist in the investigation and prosecution of organizations and

individuals who violate the law and engage in money laundering,

terrorist financing, and other criminal acts.

The primary responsibility for compliance with the Bank Secrecy

Act (BSA) and anti-money laundering (AML) compliance rests with

the Nation’s financial institutions themselves—they represent the

front lines in the fight against money laundering. The OCC has a

statutory mandate to ensure that national banks comply with these

laws. Where deficiencies are noted, we take supervisory and enforcement actions to ensure that the bank promptly corrects them.

The OCC conducts regular examinations of national banks and

branches and agencies of foreign banks in the United States, covering all aspects of an institution’s operations, including compliance with the BSA and review of AML efforts. The OCC monitors

compliance with the BSA and money laundering laws through its

BSA compliance and money laundering prevention examination

procedures. In September 2000, the OCC issued the latest version

of the Comptroller’s Handbook for National Bank Examiners

(Handbook) on BSA/AML compliance. The Handbook contains procedures designed to assess BSA compliance as well as identify

suspected money laundering. These risk-based procedures were developed by the OCC, in cooperation with the other Federal banking

agencies. The Handbook section also contains guidance in a host of

key areas such as suspicious conduct and transactions, customer

identification, high-risk areas, entities, and countries, and common

money laundering schemes. We are presently revising the Handbook and expect that a new version will be issued later in the year.

The new Handbook will contain revised examination procedures

covering the new regulations issued under the USA PATRIOT Act,

as well as updated information and guidance.

Strong internal policies, systems, and controls are the best assurance of compliance with the reporting and recordkeeping requirements of the BSA and the money laundering laws. Consequently,

the Handbook’s procedures focus our examination efforts on a national bank’s system of internal controls, audits, policies, and procedures in the BSA/AML area. Where examiners note control weaknesses or when we receive a lead from a law enforcement or other

external source, the examiners are directed to test the bank’s poliVerDate 11-MAY-2000 22:02 Nov 14, 2005 Jkt 000000 PO 00000 Frm 00315 Fmt 6633 Sfmt 6601 24076.TXT SBANK4 PsN: SBANK4
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cies, systems, and controls by utilizing supplemental procedures

and reviewing certain individual transactions.

Combating money laundering depends on the cooperation of law

enforcement and regulatory agencies. Therefore, the OCC participates in a number of interagency working groups aimed at money

laundering enforcement, and meets on a regular basis with law enforcement agencies to discuss money laundering issues and share

information that is relevant to money laundering schemes.

Through these interagency contacts, we sometimes receive leads as

to possible money laundering in banks that we supervise. Using

these leads, we can target compliance efforts in areas where we are

most likely to uncover problems. For example, if the OCC receives

information that a particular account is being used to launder

money, our examiners would then review transactions in that account for suspicious funds movements.

In certain cases where the OCC suspects that serious violations

of the BSA or money laundering have occurred, we investigate.

Once the FCC opens an investigation, we can use our administrative subpoena power to compel the production of documents and

testimony from individuals and entities both inside and outside of

the bank. This information is not only used for our supervisory

purposes, but also , when it is relevant to a potential criminal violation, it is shared with the appropriate criminal law enforcement

agencies. We also provide the proper State and Federal governmental authorities with active assistance as well as documents, information, and expertise that are relevant to their money laundering investigations. The OCC has conducted several investigations into suspected money laundering activities, and we continue

to closely cooperate with Federal criminal law enforcement agencies. These investigations may result in both criminal convictions

and significant asset forfeitures. In addition, the OCC possesses

broad enforcement authority, including the power to issue cease

and desist orders, civil money penalties, and removals of bank officers, directors, and other institution-affiliated parties. From 1998

to 2003, the OCC has taken a total of 38 enforcement actions

based, in whole or in part, on BSA/AML violations.

All banks are required by regulation to report suspected crimes

and suspicious transactions that involve potential money laundering or violate the BSA. In April 1996, the OCC, together with

the other Federal financial institution regulatory agencies, and the

Financial Crimes Enforcement Network (FinCEN), unveiled the

suspicious activity reporting system, suspicious activity report

(SAR) form, and database. This system provides law enforcement

and regulatory agencies online access to the entire SAR database.

Based upon the information in the SAR’s, law enforcement agencies

will initiate an investigation and, if appropriate, take action

against violators. By using a universal SAR form, consolidating filings in a single location, and permitting electronic filing, the system greatly improves the reporting process and makes it more useful to law enforcement and to the regulatory agencies. As of June

2003, banks and regulatory agencies had filed over 1.1 million

SAR’s, with national banks by far the biggest filers. Nearly 50 percent of these SAR’s were for suspected BSA/money laundering violations.

309

The OCC also uses the SAR database as a means of identifying

high-risk banks and high-risk areas within banks. In addition, the

OCC uses the SAR database to identify potential cases against

bank insiders and employees for administrative enforcement actions. For example, since 1996, through our review of SAR’s and its

predecessor, the criminal referral form, the OCC has prohibited

hundreds of individuals from participating in the banking industry.

In 1997, the OCC formed an internal task force on money laundering called the National Anti-Money Laundering Group

(NAMLG). The purpose of the NAMLG is to serve as the agency’s

focal point for BSA/AML supervision. Through the NAMLG, the

OCC has embarked on several important projects.

One major project of the NAMLG involves the targeting of banks

that may be vulnerable to money laundering for examinations

using expanded-scope procedures. We select banks for these examinations based on law enforcement leads or criteria developed by the

OCC. Through the years, we have conducted over 70 expandedscope AML examinations based on law enforcement leads and other

criteria.

The NAMLG has developed guidance to assist our examination

staff in targeting institutions that might be vulnerable to attempts

by individuals or institutions to engage in money laundering activities. The guidance sets forth a series of factors in developing a

prioritized list of institutions that are considered most susceptible

to money laundering. Some of the factors are the extent of funds

transfers to or from entities in foreign countries that are believed

to be money laundering havens; the extent of account relationships

with individuals and entities located or otherwise associated with

the above-referenced countries; the strength of the bank’s BSA/

AML program and monitoring mechanisms; and other factors

which may make the bank susceptible to money laundering.

The NAMLG has also worked with law enforcement agencies and

the other regulatory agencies to develop an interagency examiner

training curriculum that includes training on common money laundering schemes. We are also continuing to work with the other

Federal banking agencies on new examination procedures to address the USA PATRIOT Act requirements and ensure that they

are effective in identifying potential money laundering activities.

Other responsibilities of the NAMLG include sharing information

about money laundering issues with the OCC’s District offices; analyzing money laundering trends and emerging issues; and promoting cooperation and information sharing with national and local

anti-money laundering groups, the law enforcement community,

bank regulatory agencies, and the banking industry.

The OCC believes that interagency coordination and cooperation

are critical to successfully addressing BSA and money laundering

issues. We actively participate in several interagency groups seeking to curtail money laundering through financial institutions by

surfacing issues, sharing information, and making recommendations to improve money laundering enforcement and awareness.

These include the BSA Advisory Group, chaired by the U.S. Treasury Department, which is composed of policy, legal, and operations

representatives from the major Federal and State law enforcement

and regulatory agencies involved in the fight against money launVerDate 11-MAY-2000 22:02 Nov 14, 2005 Jkt 000000 PO 00000 Frm 00317 Fmt 6633 Sfmt 6601 24076.TXT SBANK4 PsN: SBANK4
310

dering, as well as industry representatives, and the National Interagency Bank Fraud Working Group, of which we have been a very

active member since its founding in 1984. We also work on an

international basis with the Financial Action Task Force, an intergovernmental body whose purpose is the development and promotion of policies to combat money laundering. In addition, we

have participated in various State and Treasury Department missions to assist foreign governments in their anti-money laundering

efforts. We expect that these international efforts will continue.

Since passage of the USA PATRIOT Act in 2001, the OCC has

been heavily involved in several interagency work groups tasked

with writing regulations to implement the new law. These work

groups have issued final rules implementing Sections 313/319(b)

(foreign shell banks), 314 (information sharing), and 326 (customer

identification) (the OCC was the lead drafter of the customer identification rule). We were also involved in drafting the interim final

rule implementing section 312 (foreign private banking and correspondent banking). Now that the new regulations are in place,

the OCC is using the specialized procedures that we have developed with the other Federal banking agencies in our examinations

to ensure that banks are complying with the new requirements.

As mentioned above, the primary responsibility for ensuring that

banks are in compliance with the law remains with the bank’s

management and its directors. To aid them in meeting this responsibility, the OCC devotes time to educating the banking industry

about its responsibilities under the BSA. In past years, this has included active participation in conferences and training sessions

across the country. For example, in 2002 the OCC sponsored a nationwide teleconference to inform the banking industry about the

USA PATRIOT Act. We will continue to be active in this area.

The OCC also provides guidance to national banks through: (1)

periodic bulletins that inform and remind banks of their responsibilities under the law, applicable regulations, and administrative

rulings dealing with BSA reporting requirements and money laundering; (2) publication and distribution of a guide in this area entitled Money Laundering: A Banker’s Guide to Avoiding Problems; (3)

publication and distribution of the Handbook section; and (4) periodic alerts and advisories of potential frauds or questionable activities, such as the alerts on unauthorized banks.

Q.2. Has Riggs met the deadlines established in the Order? Are

you satisfied with their progress to date?

A.2. Because our answer to this question would entail disclosure of

confidential supervisory information involving an open bank, it

would be inappropriate to respond in this context. Our staff has

briefed members of the Committee staff and would be willing to do

so again if it would be useful to the Committee. Please be assured,

however, that Riggs continues to receive a great deal of scrutiny

from this office. We are continuing to closely monitor the corrective

action that the bank has taken in response to the Order, and we

are prepared to take additional actions if necessary.

Q.3. Given the emphasis on the SAR as a tool that would allow

bank examiners and others in the Government to gauge whether

the integrity of the banking system is being exploited by criminals

311

and terrorists, is the OCC adequately resourced, trained, and

staffed to examine the banks under your jurisdiction to fully inspect their compliance with the BSA?

A.3. Yes, we believe that we have adequate and properly trained

staff to fulfill our responsibilities. We also recognize that maintaining an adequate number of staff, with appropriate training to

maintain a high level of expertise, is an ongoing challenge. The

OCC has approximately 1,700 field examiners that are involved in

conducting examinations of national banks. Many of these examiners are not only responsible for assessing safety and soundness,

but also compliance with applicable laws including the BSA. We

also have BSA/AML specialists in our Washington, DC headquarters office. In addition, the OCC has a full-time examiner in

the Offshore Banking and Fraud Unit in Washington, DC, who is

responsible for tracking the activities of offshore shell banks and

other types of suspicious activities that may be designed to defraud

legitimate banks and the public. Over the years, this unit has

issued hundreds of industrywide alerts involving unauthorized

banks, some of which are suspected of being money-laundering vehicles.

With respect to training, OCC AML training is considered the

best in the regulatory industry. In fact, the World Bank recently

contracted with the OCC to tape our international BSA school for

worldwide broadcast. We conducted AML training for foreign bank

supervisors (examiners) two to three times per year for the past 4

years (over 250 foreign supervisors). And we partnered with the

State Department to provide AML Training to high-risk jurisdictions, including selected Middle Eastern countries. We consistently

provide instructors to FFIEC schools, which are now patterned

after the OCC’s school. OCC AML schools have trained over 600

OCC examiners over the past 5 years.

Q.4. You have recently named Mark Levonian as the Deputy

Comptroller for Modeling and Analysis, a new position. Do you see

his duties as including a quantitative analysis of the risk created

within the banking community for failure to comply with BSA requirements? Better explained, will he create models, which will

allow the OCC and others within the Government to focus limited

resources by using models to identify banks, which are most at risk

to be used for illicit purposes?

A.4. No, Mr. Levonian was hired by the OCC because of his expertise in modeling various financial risks in banking, that is those associated with credit risk, derivatives, interest rate risk, etc. He will

head a group within our Economics Department that provides expertise on modeling financial risk issues to our examiners.

However, identifying banks having higher risk profiles with respect to the BSA may also be addressed with qualitative assessments, and we are experimenting with some judgmental models in

this regard. By doing so, we hope to make the most productive use

of our resources, as well as identify banks with higher potential for

BSA/AML problems. These judgmental models consider high-risk

factors such as:

312

• Bank transactions with countries considered to be bank secrecy

havens, drug source countries with stringent financial secrecy

laws, or emerging countries seeking hard currency investments. • Banking activity in high-intensity drug trafficking areas (HIDT

A) or high-intensity money laundering and related financial

crime areas (HIFCA). • Transactions with cash intensive businesses such as currency exchange houses, money transmitters, check cashing facilities, convenience stores, restaurants, retail stores, or parking garages. • Products and services related to the transfer of money, such as

remittances, wire funds transfer, pouch activity, international

correspondent banking relationships, payable through accounts,

international brokered deposits, or special use accounts. • Foreign private banking, foreign correspondent accountholders,

or politically exposed persons (PEP’s). • Excessive currency flows (currency flows between the Federal Reserve Banks and depository institutions). • Unusual suspicious activity reporting patterns. • Unusual large currency transaction reporting patterns. • Information from law enforcement.

The OCC is committed to preventing national banks from being

used to launder the proceeds of the drug trade and other illegal activities. With these, and other AML initiatives, active interagency

working groups, increased international cooperation, and a committed industry, the OCC intends to make substantial additional

progress in preventing the Nation’s financial institutions from,

wittingly or unwittingly, being used to launder money and engage

in terrorist financing. We stand ready to work with Congress, the

other financial institution regulatory agencies, the law enforcement

agencies, and the banking industry to continue to develop and implement a coordinated and comprehensive response to the threat

posed to the Nation’s financial system by money laundering and

terrorist financing.

RESPONSE TO WRITTEN QUESTIONS OF SENATOR SARBANES

FROM JOHN D. HAWKE, JR.

Q.1. A critical issue raised during the Senate Banking Committee

hearing on April 7 involved the extent to which national banks and

their State-chartered operating subsidiaries are engaged in predatory lending practices. In order to begin to develop a basis for reviewing this question, please provide the Committee with a list

containing the names of all operating subsidiaries engaged in

subprime mortgage lending, their location, and parent bank. The

Committee would like to receive this information by the end of

May.

A.1. The attached table lists the names of national bank operating

subsidiaries, their location, and their parent bank. A version of this

table is available on the OCC’s website at www.occ.treas.gov/

OpSublist.pdf. This list includes operating subsidiaries that do

business directly with consumers, the activities of which are not

functionally regulated by another regulator. (Many other operating

subsidiaries are engaged in activities such as securities brokerage

and insurance sales, which cause them to be ‘‘functionally reguVerDate 11-MAY-2000 22:02 Nov 14, 2005 Jkt 000000 PO 00000 Frm 00320 Fmt 6633 Sfmt 6601 24076.TXT SBANK4 PsN: SBANK4
313

lated’’ by securities or insurance regulators, rather than the OCC,

pursuant to the Gramm-Leach-Bliley Act.) Operating subsidiaries

marked in red text are engaged in subprime mortgage lending.

Q.2. I would like to ask about the application of your preemption

standard to State antidiscrimination laws. It is my understanding

that you have taken the position, in response to questions submitted to you by Reps. Kelly and Gutierrez, that ‘‘State antidiscrimination laws are not preempted by the regulations. The rule

only preempts those types of State laws pertaining to making loans

and taking deposits that appear on the list contained in the rule

. . . Any question about the applicability of a particular State antidiscrimination law would be dealt with on a case-by-case basis, applying the ‘‘obstruct, impair, or condition’ analysis.’’

I would like to ask you how that would work in practice. For example, the State of Michigan has an antidiscrimination/

antiredlining law that prohibits State or federally chartered banks

and other lenders from denying a loan or varying the terms of the

loan contract (interest rate, term of maturity, or the percentage required for a downpayment) due to racial or ethnic characteristics

or trends of a neighborhood.

Among other things, the law requires the lender to make available for public distribution at the home location and at each branch

a pamphlet or document explaining in general terms the lender’s

criteria for the approval or denial of a loan application. The pamphlet must prominently state that a person has the right to make

a loan inquiry and file a written application for a mortgage or

home improvement loan and receive a written response to the application. The law also requires the institution to retain for 25

months after the application is submitted a complete record of each

loan application, its disposition, and any other documents relating

to the application. Would the Michigan antidiscrimination law be

preempted in whole or part under the OCC regulation? Why?

Would the general prohibition on varying the loan terms based on

the racial or ethnic composition of a neighborhood be preempted?

Why? Would the requirement that lenders make a pamphlet available explaining the general terms of the lender’s criteria for approval or denial of a loan application be preempted? Why? Would

the record retention requirement be preempted? Why?

A.2. The preemption rule adds provisions to our regulations expressly addressing the applicability of certain types of State laws

to national banks’ lending and deposit-taking activities. The listed

types of laws are ones that already are preempted under longstanding, preexisting OCC regulations, have been found to be preempted in OCC preemption opinions, have been found to be preempted by the courts, or have been determined to be preempted for

Federal thrifts by the Office of Thrift Supervision. Thus, they are

types of laws for which substantial precedent exists recognizing the

interference they pose to the ability of federally chartered institutions to operate under uniform Federal standards.

The regulation only preempts the types of laws that are listed in

the regulation. State antidiscrimination laws are not listed in the

regulation. We evaluate laws not listed in the regulation under the

preexisting, judicially established standards for Federal preempVerDate 11-MAY-2000 22:02 Nov 14, 2005 Jkt 000000 PO 00000 Frm 00321 Fmt 6633 Sfmt 6601 24076.TXT SBANK4 PsN: SBANK4
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1 12 U.S.C. §§ 2801–2809 (1976).

2 12 CFR § 202.12.

tion. Under existing judicial precedent, laws that prohibit the denial of a loan or the variance in loan terms based on the racial or

ethnic characteristics or trends of a neighborhood would not be preempted.

For example, in National State Bank v. Long, 630 F.2d 981 (3d

Cir. 1980), the U.S. Court of Appeals for the Third Circuit was

asked to consider whether a New Jersey antiredlining statute similar to the Michigan statute you describe was preempted by Federal

banking laws. The New Jersey law prohibited geographic discrimination; required lenders to compile and disclose to the public statistical information concerning the number and amount of mortgages

originated or purchased annually and the locations of the properties; and authorized the New Jersey Banking Commissioner to

bring enforcement actions against lenders that violated the statute.

The Court held that insofar as the New Jersey statute required disclosure of mortgage statistics, it was preempted by the Federal

Home Mortgage Disclosure Act of 1975.1 The Court also determined that the antidiscrimination provision of the New Jersey law

was not preempted, however. Finally, the Court held that the statute could be enforced against national banks by the OCC, but not

by State officials.

As the Long case demonstrates, whether the portions of the

Michigan statute that do not concern redlining are preempted depends on whether they conflict with Federal law. The record retention requirement in the Michigan statute appears not to be an

issue because it is substantially similar to the record retention requirements of the Equal Credit Opportunity Act (ECOA).2

Whether the Michigan statute’s requirement that a lender make

available a pamphlet explaining the lender’s loan approval criteria

is preempted would depend on its specifics. If the pamphlet requirement is essentially a precondition to making the loan, the

requirement would be preempted under the judicial precedent embodied in American Bankers Ass’n v. Lockyer, 239 F.Supp.2d 1000

(E.D. Cal. 2002), in which the Court considered whether a California law requiring lenders to make certain disclosures in connection with credit card lending was preempted for national banks and

other federally chartered lenders. The California law’s required disclosures were found by the Court to limit a national bank’s power

to establish the terms and conditions of credit as well as manage

its credit accounts, and the Court held that it was preempted by

the National Bank Act and OCC regulations. Our recently enacted

regulation, at 12 CFR § 34.4(a)(10) codifies a position on preemption of disclosure requirements that is consistent with the holding

of the Court in Lockyer.

RESPONSE TO WRITTEN QUESTIONS OF SENATOR JOHNSON

FROM JOHN D. HAWKE, JR.

Q.1. Have you analyzed whether State-chartered institutions in

States with ‘‘wild card’’ statutes will be able to operate under the

new OCC preemption rules? If you have not, I would ask that you

conduct a survey of how many States have such statutes, and what

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1 Colo. Rev. Stat. § 5–3.5–303(2).

2Ga. Code Ann. § 7–6A–12.

3Ga. House Bill 1171, § 6.

4 2003 Wisconsin Act 257 (to be codified at Wis. Stat. § 428.211).

5 12.16.76.9 NMAC.

effect those provisions would have in terms of numbers of institutions potentially covered by the rule.

A.1. Many States have wild card statutes, which vary in their

scope and implementation. Some arguably pertain to permissible

activities, and some wild card statutes require the State banking

commissioner (or the equivalent official) to trigger their application. In general, this information is contained in the 2002 Conference of State Bank Supervisors publication, Profile of State

Chartered Banking. We attach copies of the relevant pages from

that publication. For more detail on how the statutes are administered, we would defer to the CSBS and the individual States.

Some States also have adopted parity or ‘‘wild card’’ statutes for

specific activities. For example, we are aware of three State predatory lending laws that exempt State institutions in the event that

the State law is preempted with respect to federally chartered institutions:

Colorado: Any provision of Colorado’s Act Concerning Protection

of Consumers’ Home Ownership Equity that is preempted by Federal law with respect to a national bank or Federal savings association shall also, to the same extent, not apply to an operating subsidiary of a national bank or Federal savings association, nor to a

bank chartered under the laws of Colorado or any operating subsidiary of such a State chartered bank.1

Georgia: State banks, trust companies, savings associations,

credit unions, and their respective subsidiaries are exempt from

the Georgia Fair Lending Act (GFLA) if Federal law preempts or

has been determined to preempt the application of the GFLA to

any federally chartered bank, trust company, savings association,

or credit union. Such Federal preemption shall apply only to the

same type of State-chartered entity as the federally chartered entity affected.2 There is legislation currently pending that would repeal this provision.3

Wisconsin: State-chartered banks, trust companies, savings and

loans associations, savings banks, credit unions, and their respective subsidiaries are exempt from the Wisconsin statute to the extent Federal law preempts or prohibits the application of the statute to federally chartered banks, trust companies, savings and

loans associations, savings banks, credit unions, and their respective subsidiaries.4

In addition, in January 2004, New Mexico issued a regulation

to ensure that all New Mexico-chartered banks have the same powers and authority as federally chartered savings associations.5

Q.2. I am interested in hearing more about how the wording in the

national bank charter differs from that of the Federal thrift or

credit union charters. My understanding is that the national bank

charter does not grant ‘‘field preemption’’ to the OCC. Leaving

aside whether the OCC has exceeded its preemption authority in

the current instance, would you please provide examples of, in your

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6 ‘‘This Constitution, and the Laws of the United States which shall be made in Pursuance

thereof . . . shall be the supreme Law of the Land; and the Judges in every State shall be

bound thereby, anything in the Constitution or Laws of any State to the Contrary notwithstanding.’’ U.S. Const. art. VI, cl. 2. 7See Jones v. Rath Packing Co., 430 U.S. 519, 525 (1977). 8See Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947). 9Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 143 (1963). 10 Hines v. Davidowitz, 312 U.S. 52, 67 (1941); Barnett Bank of Marion County, N.A. v. Nelson,

517 U.S. 25, 31 (1996) (quoting Hines). 11 Although the OTS asserts in its rules that is occupies the field of lending and deposit-taking

regulation for Federal savings associations, its

view, what would be permitted under a field preemption standard

that is not available to the OCC under its charter?

A.2 State laws are preempted by Federal law, and thus rendered

invalid with respect to federally chartered entities (for example,

national banks, Federal thrifts, and Federal credit unions) by operation of the Supremacy Clause of the U.S. Constitution.6 The Supreme Court has identified three ways in which this may occur.

First, Congress can adopt express language setting forth the existence and scope of preemption.7 Second, Congress can adopt a

framework for regulation that ‘‘occupies the field’’ and leaves no

room for States to adopt supplemental laws.8 Third, preemption

may be found when State law actually conflicts with Federal law.

Conflict will be found when either: (i) compliance with both laws

is a ‘‘physical impossibility;’’ 9 or (ii) when the State law stands ‘‘as

an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.’’ 10

The OTS has issued regulations asserting that it ‘‘occupies the

field’’ of deposit-taking and lending regulation for Federal thrifts.11

But the OTS rule carves out of this regulatory field a number of

State laws. Thus, despite its declared intention, the OTS rule does

not appear to reflect full field preemption.

If it did, one might expect the result that no State law affecting

deposit-taking or lending would apply to Federal thrifts, regardless

of how attenuated the law’s relationship is to those core activities.

Instead, the OTS has listed in its regulations types of State laws

that generally do apply to Federal thrifts.

In our preemption rulemaking, the OCC considered whether to

adopt an occupation of the field approach to the applicability of

State law in the real estate lending area. We concluded that the

statutory authority provided to the OCC by 12 U.S.C. §§ 93a and

371 was comparably broad to the OTS’s statutory authority, but we

declined to assert occupation of the field with respect to national

banks’ real estate lending activities. Rather, our preemption rule

lists particular types of State laws that are preempted with respect

to national banks in the deposit-taking and lending areas (including real estate lending). Separately, it lists types of State law that

generally are not preempted. Under an unqualified field preemption approach, laws on this second, not-preempted list would likely

be preempted, as would a number of other types of State laws

ranging from State unfair and deceptive practices statutes to mortgage recordation requirements.

Under the OCC’s preemption rule, questions about the applicability of State laws that are not listed as preempted will be resolved by applying the same substantive, Constitutional standards—as articulated by the Supreme Court and lower Federal

317

12See OCC Advisory Letter 2003–2, ‘‘Guidelines for National Banks to Guard Against Predatory and Abusive Lending Practices’’ (Feb. 21, 2003) and OCC Advisory Letter 2003–3, ‘‘Avoiding

Predatory and Abusive Lending Practices in Brokered and Purchased Loans’’ (Feb. 21, 2003). 1 68 Fed. Reg. 46264 (July 30, 2003).

2 469 Fed. Reg. 1904 (January 13, 2004).

courts—that have governed preemption analysis since the inception

of the national bank charter.

Q.3. Do you support efforts to craft a Federal predatory lending

law? If not, why not? Would your position change if the OCC rule

is upheld by the courts?

A.3. As we have said repeatedly, predatory and abusive lending

practices are inconsistent with national objectives of encouraging

homeownership and community revitalization, and can be devastating to individuals, families, and communities. Our Advisory

Letters on predatory lending,12 our pioneering enforcement actions

resulting in substantial restitution to affected consumers, together

with the new anti-predatory lending provisions in the preemption

rule demonstrate that we do not tolerate abusive or predatory lending practices by national banks or their operating subsidiaries.

The key issue in any effort to develop new Federal anti-predatory

lending legislation is whether the legislation could be crafted to

target predatory lending practices effectively without materially reducing availability of non-predatory, but risk-priced subprime credit. Our support for such legislation would not depend on whether

our rule, if challenged, is upheld by the Federal courts, but on

whether the legislation achieves that goal.

RESPONSE TO WRITTEN QUESTIONS OF SENATOR MILLER

FROM JOHN D. HAWKE, JR.

Q.1. Mr. Hawke, I understand the Georgia State Banking Commissioner wrote to you on August 21, 2003, requesting clarification on

several matters relating to the OCC’s preemption of the Georgia

predatory lending statute. And my staff person had contacted your

staff people around the middle of February—after your rule was released—about getting a response for Commissioner Sorrell. Your

staff kept delaying us. Finally, your response came to Commissioner Sorrell on April 2, 2004. Please tell me why it took such a

long time to respond to Commissioner Sorrell?

A.1. The OCC issued its Preemption Determination and Order concerning the Georgia Fair Lending Act (GFLA) 1 in late July 2003,

and at the same time we proposed the adoption of the preemption

rule. The proposed rule raised the possibility that the answers to

Commissioner Sorrell’s questions would be affected by the final

preemption rulemaking. For this reason, we initially delayed responding to Commissioner Sorrell’s inquiry pending the adoption of

the final rule.

Following the adoption of the final rule,2 on January 8, 2004,

First Senior Deputy Comptroller and Chief Counsel Julie Williams

wrote to Commissioner Sorrell. Ms. Williams apologized for the

delay in responding and explained that because we had been deliberating the final form of the rule, and because its final form could

have superceded Commissioner Sorrell’s questions concerning the

Preemption Determination, we had concluded that it was best to

resolve our rulemaking before responding to his inquiry. Because

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3See Barnett Bank v. Nelson, 517 U.S. 25, 31–37 (1996) (reviewing and relying on prior national bank preemption cases). 4See, e.g., Bank of America v. City & County of San Francisco, 309 F.3d 551 (9th Cir. 2002),

cert. denied, 123 S. Ct. 2220, 2003 U.S. LEXIS 4253 (May 27,2003) (the National Bank Act and

OCC regulations together preempt conflicting State limitations on the authority of national

banks to collect fees for the provision of electronic services through ATM’s; municipal ordinances

prohibiting such fees are invalid under the Supremacy Clause); Wells Fargo Bank, Texas, N.A.

v. James, 321 F.3d 488 (5th Cir. 2003) (Texas statute prohibiting certain check cashing fees is

preempted by the National Bank Act); Metrobank v. Foster, 193 F.Supp. 2d 1156 (S.D. Iowa

2002) (national bank authority to charge fees for ATM use preempted Iowa prohibition on such

fees). See also Bank One, Utah v. Guttau, 190 F.3d 844 (8th Cir. 1999), cert. denied sub nom

Foster v. Bank One, Utah, 529 U.S. 1087 (2000) (holding that Federal law preempted Iowa restrictions on ATM operation, location, and advertising).

the rulemaking had been resolved, Ms. Williams assured Commissioner Sorrell that we would then review his questions in light of

the final regulation and respond to them.

From that point, unfortunately, the press of work resulted in

delays that we regret. On March 16, 2004, the Comptroller sent a

letter of further apology to Commissioner Sorrell. Sixteen days

later, we provided our full response to the Commissioner.

Q.2. Mr. Hawke, my Georgia Banking Commissioner tells me that

the reason the States are so upset with your rule—very simply is

that they feel the OCC is making new Federal law and a major

public policy change, sweeping aside State laws as they apply to

national banks and national bank subsidiaries, without Congressional action and without a public debate. The States are not concerned about a Federal law written by Congress that applies uniformly across the country, but the States are greatly concerned

where an unelected Federal regulatory agency is expanding its authority without Congressional authorization. They think your unauthorized rule damages the dual banking system across all States.

Please tell me why the OCC decided to adopt its broad reaching

rule without a public debate on the issue before Congress since the

rule was rigorously and unanimously opposed by the Nation’s governors, State legislators, attorneys general, State bank supervisors,

and consumer organizations who all urged public debate and Congressional review? Where do you derive your specific authorized

regulatory authority to do this?

A.2. To begin, it is useful to review our reasons for adopting the

rule. As you point out, many commenters opposed the rule and suggested that the OCC should have waited longer before finalizing

our rules. Please be assured that we considered these comments

and timing concerns carefully, but we ultimately concluded that

taking action, following a formal rulemaking process, was both respectful of the role of Congress and the course most consistent with

our responsibilities as supervisors of the national banking system.

We reached this conclusion for several related reasons. First, the

laws under which we acted exist today, and the principles incorporated in our preemption regulation are not new. Precedents of

the Supreme Court dating back to 1869 have addressed preemption

in the context of national banks and have consistently and repeatedly recognized that national banks were designed by Congress to

operate, throughout the Nation, under uniform, federally set standards of banking operations.3 As a result, there is an extensive body

of Federal court precedents that reiterate and apply preemption

principles to a variety of different types of State laws.4 Yet, banks

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5Standard & Poor’s Implements Credit Enhancement Criteria and Revises Representation

and Warranty Criteria for Including Anti-Predatory Lending Law Loans in U.S. Rated Structured Finance Transactions (May 13, 2004). 6 American Banker, Predator Laws: S&P’s Awkward Position (May 18, 2004).

increasingly have been forced to litigate—sometimes repeatedly on

the same issue—to clarify the applicability of specific types of State

laws, and the OCC has issued separate legal opinions that address

the applicability of State law. As national banks operate in an increasingly complex and multi-State environment, the shortcomings

of this expensive and time-consuming case-by-case approach have

become increasingly apparent. In addition, the financial and opportunity costs to banks of a case-by-case approach may be significant—especially where repetitive litigation becomes necessary to

establish clear standards.

Rather than continuing to address preemption issues on a piecemeal basis, the preemption rules address them collectively—by

clarifying and codifying prior judicial and OCC interpretations

based on long-established Constitutional principles—to provide

clear ground rules for national banks concerning the applicability

of specified types of State laws. This has become more important

in recent years as markets for credit, deposits, and many other financial products and services are have become national, if not

international. Now, more than ever before, the imposition of an

overlay of 50 State and an indeterminate number of local standards

and requirements on top of the Federal requirements and OCC supervisory standards to which national banks already are subject

has costly consequences that can materially affect a national bank’s

ability to serve its customers.

Second, the continuing uncertainty about the applicability of

State laws has already negatively affected national banks’ ability

to lend in certain markets and to access the secondary market, a

curtailment of their business that is not only inconsistent with

their federally authorized powers but also one that has the potential to adversely affect credit availability. It is worthy of note that

recently Standard & Poor’s announced it will now require significant additional credit support for certain loans governed by antipredatory lending laws that are included in its rated transactions

in order to address the effect of the potential damages associated

with these loans. 5 Some industry analysts have interpreted this action to mean that loans subject to these State laws will not be

viewed favorably in securitization pools.6 Without a certain secondary market for these loans, banks making risk-priced loans covered by this type of State law will be required to hold more of these

loans to maturity. This, in turn, ties up more of a bank’s capital

as it carries the mortgage assets on its books, and thus adversely

affects the ability of the bank to originate or acquire other real estate loans.

Moreover, we believed that the addition of anti-predatory lending

standards to our lending rules materially reinforces national banks’

obligation to operate pursuant to the highest standards of integrity.

Delaying the implementation of those standards was, accordingly,

inconsistent with our responsibility to ensure that national banks

satisfy those obligations.

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7Fed. Reg. 1904 (January 13, 2004).

8 Conference of State Bank Supervisors v. Conover, 710 F.2d 878 (D.C. Cir. 1983) (emphasis

added).

With this background, your question raises several important

issues. Your question suggests that the preemption rule is a dramatic expansion of preemption. We believe it is not. The preemption rule adds provisions to our regulations expressly addressing

the applicability of certain types of State laws to national banks’

lending and deposit-taking activities.7 The rule only preempts the

types of laws concerning deposit-taking and lending that are listed

in the regulation. The listed types of laws are ones that already are

preempted under longstanding, preexisting OCC regulations, have

been found to be preempted in OCC preemption determinations,

have been found to be preempted by the courts, or have been determined to be preempted for Federal thrifts by the OTS. Thus, they

are types of laws for which substantial precedent exists recognizing

the interference they pose to the ability of federally chartered institutions to operate under uniform Federal standards.

For the many types of laws that are not listed in the regulations,

the OCC will continue to evaluate whether such laws are preempted under the preexisting, judicially established standards for

Federal preemption that are summarized by the ‘‘obstruct, impair,

or condition’’ phrasing contained in the rule. This phrase does not

itself preempt any State law; rather we intended it simply to distill

the standards that we believe the courts would look to in deciding

questions of preemption for the types of laws not listed in the regulation.

Third, you question the OCC’s authority to adopt the preemption

rule. Federal law authorizes the OCC to issue rules that preempt

State law in furtherance of our responsibility to ensure that national banks are able to operate to the full extent authorized under

Federal law, notwithstanding inconsistent State restrictions, and in

furtherance of their safe and sound operations. The deposit-taking

and non-real estate lending provisions in the preemption rule are

authorized by 12 U.S.C. § 93a, which authorizes the OCC ‘‘to prescribe rules and regulations to carry out the responsibilities of the

office.’’ The real estate lending provisions are authorized by Section

93a and by l2 U.S.C. 371(a), which authorizes the OCC to ‘‘prescribe by regulation or order’’ the ‘‘restrictions and requirements’’

on national banks’ real estate lending power without State-imposed

conditions. The U.S. Court of Appeals for the D.C. Circuit recognized that these statutes give the OCC authority to issue regulations with preemptive effect. Over 20 years ago, the Court said:

It bears repeating that the entire legislative scheme is one that contemplates the

operation of State law only in the absence of Federal law and where such State law

does not conflict with the policies of the National Banking Act. So long as he does

not authorize activities that run afoul of Federal laws governing the activities of the

national banks, therefore, the Comptroller has the power to preempt inconsistent

State laws.8

Fourth, you note others have expressed concern that the preemption rule may damage the dual banking system. Frankly, this contention is surprising, since, far from damaging the dual banking

system, the rule is fully consistent with it. Distinctions between

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tion are not contrary to the dual banking system; they are the essence of it. Clarification of how the Federal powers of national

banks preempt inconsistent State laws is entirely consistent with

the distinctions that make the dual banking system dual.

The national and State charters each have their own distinct advantages. Indeed, today State banking regulators vigorously assert

that the State charter is superior, pointing to various considerations, including the difference in assessments paid by State banks

compared to national banks. But many national banks engage in

multi-State businesses that may particularly benefit from the efficiency of a uniform, nationwide system of laws and regulations.

Customers of national banks enjoy protections that are as strong

as—and in some cases stronger than—those available to customers

of State banks. And they also benefit from the efficiencies of the

national banking system, and predictable, uniform, consistent regulation. The dual banking system offers American consumers a

choice—those who believe the State system offers greater protections, or desirable variety, are free to make that choice.

Q.3. If you do not know the breadth of national bank operating

subsidiary numbers and therefore their activities, why were they

included in the rulemaking? Do any of these national bank subsidiaries engage in making subprime mortgage loans and if so are

these subprime mortgage loans examined by the OCC?

A.3. The preemption rule made no changes to the OCC’s preexisting operating subsidiary rules. The rule covers operating subsidiaries by operation of 12 CFR § 5.34, which provides that national bank operating subsidiaries conduct their activities subject

to the same terms and conditions as apply to the parent banks, and

12 CFR § 7.4006, which provides that State law applies to operating subsidiaries to the same extent as it applies to the parent

bank. Finally, 12 CFR § 34.1(b) expressly provides that the OCC’s

real estate lending rules apply both to national banks and their operating subsidiaries. The rules have contained provisions preempting aspects of State laws with respect to both national banks

and their operating subsidiaries since 1996.

The OCC supervises national banks’ compliance with consumer

protection laws and anti-predatory lending standards through programs of ongoing supervision tailored to the size, complexity and

risk profile of different types of banks, and through targeted enforcement actions. National banks and national bank operating

subsidiaries are subject to comprehensive—and in the case of the

largest banks, continuous—supervision. With a network of approximately 1,700 examiners, the OCC conducts risk-based examinations of national banks and national bank operating subsidiaries

throughout the United States. Thus, for example, whether a national bank conducts its mortgage lending business in a department of the bank, in a branch, or in an operating subsidiary, OCC

supervision focuses on that line of business wherever the bank conducts it.

The attached table lists the names of national bank operating

subsidiaries, their location, and their parent bank. A version of this

table is available on the OCC’s website at www.occ.treas.gov/

OpSublistpdf. This list includes non-functionally regulated operVerDate 11-MAY-2000 22:02 Nov 14, 2005 Jkt 000000 PO 00000 Frm 00329 Fmt 6633 Sfmt 6601 24076.TXT SBANK4 PsN: SBANK4
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ating subsidiaries that do business directly with consumers. (Many

other operating subsidiaries are engaged in activities such as securities brokerage and insurance sales, which cause them to be ‘‘functionally regulated’’ by securities or insurance regulators, rather

than the OCC, pursuant to the Gramm-Leach-Bliley Act) Please

refer to our answer to Senator Sarbanes’ first question with respect

to subprime mortgage lending activity by national bank operating

subsidiaries.

Q.4. Mr. Hawke, What is your vision now of the relationship between State and Federal enforcement regulators in enforcing both

State and Federal law as financial institutions participate in global

and national markets?

A.4. We believe the relationship should be cooperative and respectful, and we welcome the opportunity to work cooperatively with

State authorities. Our jurisdiction over national banks and their

subsidiaries does not deprive State regulators of a role in protecting consumers in their States. Our rules do not affect the ability of States to regulate or take enforcement action when Federal

law authorizes them to do so, for example, in the securities, insurance, and telemarketing areas. Nor do the rules prevent State officials from applying and enforcing generally applicable State laws

that do not attempt to control the content or conduct of national

banks’ banking activities.

We are hopeful that a constructive dialogue will soon emerge

with State officials. It makes no sense for the OCC and the States

to be locked in some kind of competition to supervise the same institutions when supervisory and enforcement resources are so dear,

and, as a result, so many institutions—overwhelmingly nonbanks

that probably need it most—may be effectively undersupervised.

The OCC took an important step in the direction of this dialogue

in our recent Advisory Letter concerning how national banks and

their subsidiaries should handle consumer complaints forwarded by

State authorities. We made clear that a complaint forwarded by a

State official for resolution did not constitute an illegal ‘‘visitation’’

under the National Bank Act, and that national banks should not

cite the OCC’s exclusive visitorial power as a justification for not

addressing the complaint. Nor should they resist a request from

the referring State agency for information on how the complaint

was resolved.

We also described how States may refer consumer issues concerning national banks to the OCC, including directly to the Chief

Counsel’s office, and the special procedures we have set up to handle and track these referrals. By coordinating our resources and

working cooperatively with the States, we can maximize benefits to

consumers, close gaps between existing consumer protection laws,

and most effectively target financial predators. We welcome further

dialogue with the States to explore these mutual goals.

RESPONSE TO WRITTEN QUESTIONS OF SENATOR JOHNSON

FROM ROY COOPER

Q.1. If I understand your position correctly, you would like Congress, in effect to nullify the OCC preemption rule. What is your

position with respect to the preemptive authority of federally charVerDate 11-MAY-2000 22:02 Nov 14, 2005 Jkt 000000 PO 00000 Frm 00330 Fmt 6633 Sfmt 6601 24076.TXT SBANK4 PsN: SBANK4
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tered thrifts and credit unions? Are you asking Congress to modify

those charters to prevent preemption of State consumer protection

laws, and if not, why not? What distinctions do you see between

national banks and these other federally chartered entities?

A.1. Yes, I believe Congress should nullify the OCC’s preemption

and visitorial powers rules. The OCC’s legal authority differs from

that of the OTS and the NCUA. Without conceding that the OTS

and NCUA have acted within their authority to preempt State consumer protection laws, their authorizing statutes grants them more

explicit authority than the National Banking Act grants the OCC.

I do believe that the OTS and the NCUA are also wrong as a

matter of policy, and I would support efforts by Congress to revisit

this issue of diminished consumer protection of customers of Federal thrifts and credit unions, as well as national banks.

There is a race to the bottom going on. Because the OTS issued

its regulations, the OCC wants to issue its own. Now that the OCC

has done it, State banks will want parity and try to obtain exemptions from State predatory lending laws. Once State banks seek

parity, then State housing creditors (finance companies) will demand a ‘‘leveling the playing field’’ and come knocking on your

doors to seek similar preemptive treatment.

A home is the most important purchase most families will ever

make. We should raise the floor when it comes to protecting people

from unfair home loans, not race to the bottom. We owe that to

consumers who are engaging in some of the most important financial transaction of their lives.

Q.2. Do you support efforts to craft a Federal predatory lending

law? If not, why not? Would your position change if the OCC rule

is upheld by the courts?

A.2. I support efforts to craft a Federal predatory lending law so

long as the law sets a floor, not a ceiling. This is particularly important for protecting people in States that have no predatory lending laws. In other Federal consumer protection efforts effecting real

estate, Congress has adopted this philosophy. The Home Ownership and Equity Protection Act (HOEPA), the Real Estate Settlement Procedures Act (RESPA), the Fair Housing Act, the Equal

Credit Opportunity Act, the Truth in Lending Act, and the Federal

Trade Commission Act all regulate the real estate finance market

without broadly preempting comparable State regulations. Predatory lending should be no different.

North Carolina needs to retain its flexibility to legislate according to the local conditions of our real estate and mortgage market.

Unlike, for example, the airline industry, which is truly national

and therefore more suitable for preemption, real estate is inherently local, and States need to have flexibility to respond to abuses

in the local marketplace.

RESPONSE TO A WRITTEN QUESTION OF SENATOR MILLER

FROM ROY COOPER

Q.1. Mr. Cooper, give me an idea of what the historical working relationship has been with the OCC and what the current working

relationship is with the OCC? Which Federal agencies do you have

324

1See, e.g., State of Alaska v. First National Bank of Anchorage, 660 P.2d 406 (Alaska 1982)

(holding that the Alaska Attorney General could sue a national bank); Attornev General v.

Michigan Nat’l Bank, 312 N.W.2d 405, 414 (Mich. App. 1981), overruled on other grounds 325

N.W.2d 777 (Mich. 1982) (holding that a national bank could be held liable by the Attorney General under State and Federal consumer protection laws related to mortgage escrow accounts);

State of Arizona v. Sgrillo and Valley National Bank of Arizona, 176 Ariz. 148, 859 P.2d 771

(1993); State of Wisconsin v. Ameritech Corp., Household Bank and Household Credit Services,

185 Wis. 2d 686, 517 N.W.2d 70S (1994), aff’d 532 N.W.2d 449 (Wisc. 1995); State of West Virginia v. Scott Runyan Pontiac-Buick. Citizens National Bank. et al., 194 W.Va. 770, 461 S.E.2d

516 (W.Va. 1995) (holding that the attorney general had the right to bring a civil action against

the financial institutions, including the national bank); State of Minnesota v. U.S. Bancorp., Inc.,

Case No. 99–872 (Consent Judgment, D. Minn. 1999). 2See Section C in the comments by State attorneys general on the preemption rule attached

to my submitted testimony. See, also, e.g., State of Minnesota v. Fleet Mortgage Corp., 158

F.Supp.2d 962 (D. Minn. 2001) (involving unfair and deceptive sales practices and telemarketing); In the matters of Citibank and FirstUSA (involving an investigation begun in 2001

by Florida, Illinois, California, and New York into the telemarketing operations of national

banks in which the OCC unsuccessfully sought to dissuade banks from concluding settlements

with the States); In the matter of Citibank, US Banks et. al. (involving an investigation of online

gambling by New York); In the matter of Key National Bank (involving an investigation by

Maryland, Missouri, and Illinois into student loans in which the OCC claimed it alone would

make a determination of liability and after issuing its recent regulations, the OCC notified the

Illinois Attorney General’s office that it would not pursue the case against Key). 3 Another example of the OCC supporting State law enforcement concerns payday lending. My

office was concerned about entities engaging in unauthorized payday lending in violation of

North Carolina usury law through a subterfuge known as ‘‘charter renting.’’ Charter renting is

when a payday lender affiliates with a bank in order to benefit from the bank’s preemptive authority concerning interest rates. To its credit, the OCC acted on safety and soundness grounds

to prevent several national banks from renting their charters to payday lenders.

the best working relationship with and why? Do you think such a

relationship is possible with the OCC?

A.1. Historically, my office has not had much interaction with the

OCC. The OCC’s primary mission is to ensure the safety and

soundness of the national banking system. My office does not supervise national banks, and thus we have little regulatory overlap.

Our office has historically enforced State consumer protection laws

against national banks. The OCC’s consumer protection role has

been only a secondary and recent development. It was not until

2000 that the OCC even determined it had the authority to apply

the unfair and deceptive trade practices standards in the FTC Act

against national banks. Over the years, State attorneys general

have simply enforced State consumer protection laws against national banks without objection from the OCC.1

Unfortunately, since the OCC discovered its consumer protection

authority, its involvement with the States has been, for the most

part, troubling. In fact, the OCC has halted or interfered with several consumer protection investigations and lawsuits by various

State attorneys general against national banks or their operating

subsidiaries in the last 3 years.2 This interference hurts consumers

and lends credence to the charge that the OCC is far more interested in protecting national banks than in consumer protection.

The OCC, to my knowledge, has participated in only one significant consumer protection settlement involving Providian Bank in

California. The case actually was initiated by a local district attorney who was investigating violations of California’s State unfair

and deceptive practices law, and the settlement was negotiated by

the offices of the district attorney and the California Attorney General, along with the OCC. The OCC helped local and State officials

with the case by joining in the investigation and settlement.3 It is

worth noting that the OCC did not oppose the State and local officials’ participation or their ability to enforce the agreement. This

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case is an example of why it is good to have a State-Federal partnership. Yet, had the OCC’s recently adopted rules existed in 2001,

California’s law arguably could have been preempted and neither

the district attorney nor the attorney general could have initiated

the case, begging the question: Would the OCC have ever brought

the case if it had not been initiated by local and State law enforcement? This case underscores my central concern that having 51

cops on the beat is better than having one.

I sincerely wish that the OCC would seek to partner with the

States in protecting consumers and solving their problems. The

State attorneys general and the OCC share common goals of eliminating unfair and deceptive practices and in assuring a fair and

competitive credit marketplace. So it would be far preferable if we

acted to complement each other’s efforts because there is more than

enough work for us all. Consumers need more public officials to enforce the law, not fewer.

The attorneys general have worked well with other Federal agencies in exercising our dual enforcement authority in other areas.

My office has an excellent working relationship with the Federal

Trade Commission (FTC). The FTC has made a commendable effort

to communicate and partner with State attorneys general. We

jointly bring lawsuits against scofflaws, participate in common consumer education efforts, cosponsor conferences, share information,

and use the FTC’s Consumer Sentinel Database. In addition to the

FTC, attorneys general have good working relationships with other

Federal law enforcement agencies, including U.S. Attorneys, the

FBI, the U.S. Postal Inspector, U.S. Customs, and HUD, among

others.

My office brought a predatory lending case that underscores how

having both State and Federal law enforcement ultimately benefits

consumers. In 2001, my office settled predatory lending allegations

against The Associates resulting in $20 million in consumer restitution to North Carolinians. A year later, the FTC achieved a national settlement with the same entity for $215 million. While

North Carolina and the FTC initiated separate investigations into

The Associates’ lending practices, we avoided turf battles by consulting with each other regularly. I believe that North Carolina’s

result helped established a consumer friendly framework for the

FTC and the Nation. Instead of competing over jurisdiction, we

complemented each other’s efforts, and most importantly, protected

consumers.

RESPONSE TO WRITTEN QUESTIONS OF SENATOR JOHNSON

FROM GAVIN M. GEE

Q.1. Have you analyzed whether State-chartered institutions in

States with ‘‘wild card’’ statutes will be able to operate under the

new OCC preemption rules? If you have not, I would ask that you

conduct a survey of how many States have such statutes, and what

effect those provisions would have in terms of numbers of institutions potentially covered by the rule.

A.1. Most ‘‘wild card’’ statutes authorize State chartered institutions to engage in activities that are allowed for national banks

and do not preempt State consumer protection laws regarding any

activity. While a few States have enacted statutes that preempt

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their own law if it is preempted for a national bank, it is not something that has been widely adopted. I do not believe that any more

States will be adopting those types of statutes because virtually all

State consumer protection laws have now been preempted by the

OCC. At this point a State would just be giving up its right to protect its consumers by adopting such a provision. Attached is a summary of the wild card statutes that are currently in place.

Q.2. Do you support efforts a Federal predatory lending law? If not,

why not? Would your position change if the OCC rule is upheld by

the courts?

A.2. If the U.S. Congress wants to craft a uniform Federal predatory lending law we stand ready to help you accomplish that goal.

We do not oppose Federal preemption when it is done by elected

officials after serious public debate. Remember, though, that the

vast majority of institutions in the country do not have to comply

with a State or Federal predatory lending law at this point in time.

In effect you would be adding a new regulatory burden in States

that have been using their unfair and deceptive practices acts effectively to deter predatory lending without adding new burdens to institutions that are not engaged in those types of practices.

An alternative that groups of State regulators are considering is

for the States to agree upon, and adopt, a uniform approach to

predatory lending.

The Comptroller of the Currency has stepped in and created its

own predatory lending standard with no guidance from the U.S.

Congress, it has told the States that they have no authority to enforce State consumer protection statutes against national banks

and their subsidiaries, and the courts have used the Chevron Doctrine to give the Comptroller unfettered discretion. It is time for

Congress to reassert its authority over this agency and restore the

balance of power.

RESPONSE TO WRITTEN QUESTIONS OF SENATOR MILLER

FROM GAVIN M. GEE

Q.1. Mr. Gee, one of the other witnesses says that if States regulate operating subs, these operating subs will simply roll up into

the national bank or a Federal thrift to avoid State regulation. Do

you think this is a real possibility for the operating subs? And what

might be the impact on the State regulatory system?

A.1. There are a number of reasons that a national bank or a Federal thrift may want to engage in certain lending activities through

a subsidiary. For example, a national bank may want to avoid

branching restrictions by engaging in limited activities across State

lines through a subsidiary. A national bank or a Federal thrift may

want the benefits of protections provided by a separate corporation

afforded through State law to engage in riskier activities without

putting the parent corporation in jeopardy.

States have traditionally licensed and regulated these entities.

After the sweeping preemption of State law for operating subsidiaries of national banks, we have reason to believe that these entities will now turn in their State licenses and ignore State law.

There is no reason to believe that, if these entities were brought

back under the scrutiny of the State regulators, they would roll up

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into the national bank to avoid State regulation. In addition, it is

my understanding that the OCC is offering this protection from

State oversight to an entity with as little as 25 percent ownership

by a national bank. The national bank would have to own 100 percent of the stock in a subsidiary to roll it up into the bank itself.

Q.2. Mr. Gee, give me an historical working relationship has been

with current working relationship is with the OCC? Which Federal

agencies do you have the best and why? Do you think such a relationship is possible with the OCC?

A.2. There has always been a competitive tension between the OCC

and the State banking departments. Unfortunately at the moment,

given the OCC’s current actions, the impression in the States is

that the OCC is using regulatory interpretations to preempt State

consumer protection law in order to gain a competitive advantage

and bring more institutions under the jurisdiction of the Comptroller. Sweeping aside all State consumer protection laws that

‘‘condition’’ the activities of a national bank and eliminating any

State authority over subsidiaries of national banks has done nothing to foster a positive working relationship or trust between the

States and the Office of the Comptroller of the Currency.

The State regulators have a good working relationship with the

Federal Deposit Insurance Corporation and the Federal Reserve. In

1996, all 50 States signed a nationwide State-Federal supervisory

agreement with the FDIC and the Federal Reserve laying out how

multi-State, State-chartered banks would be supervised while minimizing the burdens imposed on banks. In Idaho, every safety and

soundness examination of every bank is currently conducted jointly

with the FDIC or the Federal Reserve.

The sweeping nature of the OCC’s recent preemption pronouncements and the absolute disregard for any State authority have

made this kind of relationship with the OCC difficult at best. Starting over with a Congressional Review Act repeal of these regulations and having the OCC reach out for serious consultation with

State regulators and attorneys general on how consumer protection

issues for customers of national banks will be handled would be a

good start in repairing the relationship with the States.

RESPONSE TO WRITTEN QUESTIONS OF SENATOR JOHNSON

FROM MARTIN EAKES

Q.1. If I understand your position correctly, you would like Congress, in effect, to nullify the OCC preemption rule. What is your

position with respect to the preemptive authority of federally chartered thrifts and credit unions? Are you asking Congress to modify

those charters to prevent preemption of State consumer protection

laws, and if not, why not? What distinctions do you see between

national banks and these other federally chartered entities?

A.1. I support efforts in Congress to overturn the OCC’s final rule

on preemption of State anti-predatory lending laws and on States’

visitorial powers. As I stated in my written testimony, I oppose the

OCC’s actions for four main reasons:

• The OCC’s final regulation rolls back State legislation that has

curbed abusive lending practices while preserving access to credVerDate 11-MAY-2000 22:02 Nov 14, 2005 Jkt 000000 PO 00000 Frm 00335 Fmt 6633 Sfmt 6601 24076.TXT SBANK4 PsN: SBANK4
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it. The OCC’s action will undermine creative efforts by States to

protect their citizens from evolving financial abuses. • The OCC’s final regulation has all but eliminated the essential

role that States have played in enforcing State laws against abusive lending by national banks, and particularly, by their operating subsidiaries. Instead of complementing a State’s efforts, the

OCC seeks to replace them, at a catastrophic cost to American

homeowners. • The OCC has blatantly ignored Congressional directives to refrain from interfering with State efforts to protect its citizens

from abusive lending unless the Federal policy interest is clear

and the legal basis is compelling. • The OCC’s actions will make the national bank charter a safe

haven for abusive lenders, an outcome that is bad for borrowers

and bad for banks.

I also do not support the OTS and NCUA rulings that Federal

law preempts State predatory lending laws. However, there are distinct differences between the OCC preemption ruling and the OTS

and NCUA rulings. Regarding NCUA, credit unions are already

strongly regulated. Credit unions are prohibited from charging

more than 18 percent interest on loans, and are banned from

charging prepayment penalties, among other limits on lending

practices. Further, credit unions make up a very small percentage

of the overall mortgage lending market in the United States. As

such, NCUA’s footprint is very limited. The OTS order affects a

larger number of institutions, but still a much smaller universe

than OCC-regulated institutions.

The OCC’s announcement and its subsequent public statements

go beyond preemption of State laws. The OCC has shown outright

enmity toward anti-predatory lending laws in general. Its specific

criticism of the North Carolina law is based solely on poor research

that shows the OCC’s outright bias against State laws of any sort.

In addition, it is the view of many legal commentators that the

OCC’s preemption order is based on much weaker legal ground

than the OTS and NCVA orders. And, the OCC’s order reverses

decades of its own precedent in using preemption only when a law

presents a clear conflict with Federal law or with existing OCC regulations. State anti-predatory lending laws do neither.

The combination of the OCC’s very aggressive use of preemption

in this case, the complete disregard for the OCC’s own precedent

and established legal doctrine, and the OCC’s misplaced hostility

toward anti-predatory lending laws in general—and North Carolina’s in particular—led me to take a much stronger stance on the

OCC’s misplaced use of preemption.

Q.2. Do you support efforts to craft a Federal predatory lending

law? If not, why not? Would your position change if the OCC rule

is upheld by the courts?

A.2. I have had and continue to have good-faith discussions with

those in industry who would like to replace State anti-predatory

lending laws with a single Federal standard. I cannot, however,

support a law that sets a weak standard and preempts State laws.

The progression of State laws makes clear that we are starting to

see agreement on certain issues. The flipping standard in the

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North Carolina law and others, which requires that lenders provide

borrowers in refinance transactions with a reasonable, net tangible

benefit, does not evoke much, if any, controversy from lenders, ratings agencies, or other mortgage players.

The standard Congress sets has to be strong, and should be a

floor for States, not a ceiling. With a strong Federal standard as

a floor, State legislatures will undertake the arduous work of enacting State legislation that is often opposed by large industry

players only when absolutely necessary to address problems unique

to that State. States must retain the flexibility to deal with new

abuses that may crop up in their jurisdictions. Congress does not

have the ability to foresee local abuses that lurk just around the

corner. As such, Congress should not deny States the ability to act

to protect its citizens.

Because the courts give great deference to the actions of Federal

agencies, I assume the courts may uphold the OCC’s decision. That

result does not mean that the OCC’s recent actions represent good

policy. A Federal law that sets a floor, that sets explicit boundaries

for the OCC’s preemptive authority, and that restores the ability

of States to protect their citizens would be a positive step for Congress to take.

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