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Filippo Cardone Article Critical new fields should be added to HMDA data such as a universal loan identifier that permits tying HMDA data to property databases and proprietary loan performance databases, a flag for loans originated by mortgage brokers, information about the type of interest rate (e.g., fixed vs. variable), and other fields that the mortgage crisis has shown to be of critical importance.In the Securities and Exchange Commission (SEC), we already have an experienced federal supervisor with comprehensive responsibilities for protecting investors against fraud and abuse. In the wake of the scandals associated with the current financial crisis, including Ponzi schemes such as the Madoff affair, the SEC has already begun to strengthen and streamline its enforcement process and to expand resources for enforcement in the FY2010 budget. It has streamlined the process of obtaining formal orders that grant the staff subpoena power and begun a review of its technology and processes to assess risk and manage leads for potential fraud and abuse.
Banking regulators at the state and federal level had a potentially conflicting mission to promote safe and sound banking practices, while other agencies had a clear mission but limited tools and jurisdiction. Most critically in the run-up to the financial crisis, mortgage companies and
other firms outside of the purview of bank regulation exploited that lack of clear accountability by selling mortgages and other products that were overly complicated and unsuited to borrowers’ financial situation. Banks and thrifts followed suit, with disastrous results for consumers and the financial system. This year, Congress, the Administration, and financial regulators have taken significant measures to address some of the most obvious inadequacies in our consumer protection framework. But these steps have focused on just two, albeit very important, product markets – credit cards and mortgages. We need comprehensive reform.
This distribution of risk was widelyperceived to reduce systemic risk, to promote efficiency, and to contribute to a better allocation of resources.However, instead of appropriately distributing risks, this process often concentrated risk in opaque and complex ways. Innovations occurred too rapidly for many financial institutions’ risk management systems; for the market infrastructure, which consists of payment, clearing and settlement systems; and for the nation’s financial supervisors.Securitization, by breaking down the traditional relationship between borrowers and lenders, created conflicts of interest that market discipline failed to correct.
For example, the CFPA could adopt a procedure under which a provider petitions the CFPA for a determination that its product’s risks were adequately disclosed by the mandatory model disclosure or marketing materials. The CFPA could approve use of the mandatory model or marketing materials, or provide a waiver, admissible in court to defend against a claim, for varying the model disclosure. As a further example, if the CFPA failed to respond in a timely fashion, the provider could proceed to market without fear of administrative sanction on
that basis. The provider could potentially shorten the mandatory waiting period if it submitted empirical evidence, according to prescribed standards, that its marketing materials and the mandatory disclosure adequately disclosed relevant risks. The CFPA should have authority to adapt and adjust its standards and procedures to seek to maximize the benefits of product innovation while minimizing the costs.Disclosure rules today assume disclosures are on paper and follow a prescribed content, format, and timing; the consumer has no ability to adapt content, timing, or format to her needs.
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