Predatory lending refers to the use of unfair, illegal or fraudulent means in the process of advancing a loan to a client. The lenders, under predatory lending, take advantage of their clients and exploit them in unfair manner when they are extending loans to them. Predatory lending can be in the form of influencing a borrower to agree to lending terms which could be unfair or even illegal or the lender violating terms of agreement of the lending. This kind of practice is highly propagated by ignorance on the part of the clients and failure of the relevant authorities to ensure that banks are run in a manner that upholds business ethics.
This paper seeks to discuss transparency issues regarding to predatory lending in Saudi banks. The paper will look into the history of the Saudi banks, the history of predatory lending in Saudi banks and the corresponding history of predatory lending in American banks. The paper will then carry out a comparative analysis between Saudi banks and American banks as well as the difference between Saudi banks and some of the highly rated banks in the world with respect to predatory lending. The paper will briefly examine the Islamic banking system in an attempt to explore the possibilities of banks in Saudi Arabia engaging in predatory lending
The basic definition of predatory lending can be derived from its discriminative nature to the borrower. This is because the manner in which the lender conducts the transactions and even the manner in which such transactions are implemented in considered cases of predatory lending have no guidelines. They are rather based on the nature of an individual borrower and the level of advantage that can be taken over him or her. The definition of predatory lending, however, takes into consideration some basic factors that characterize unfairness in the manner in which the lending transactions are done and implemented together with the laid down conditions of such transactions.
One of the main features of predatory lending is the direct discrimination of an individual borrower. Under this basis, the lender gives consideration to the borrower based on personal details that are not at all related to the borrower’s credit worthiness. Issues such as “race, ethnicity, age or gender or other personal characteristics” (Carr and Kolluri, 2001, p.1) are put into consideration by the lender. Another characteristic of the predatory lending is “unreasonable and unjustifiable loan terms” (Carr and Kolluri, 2001, p.1) together with an “outright fraudulent behavior that maximizes the destructive financial impact on consumers” (Carr and Kolluri, 2001, p.1) through unfair strategies. The discriminative application of personal information can for example be used to favor a group of people through low interest rates which can then be compensated for from the other groups which will be highly charged for borrowing. On the other hand, unfair loan terms are normally designed to help the lender derive maximum benefits from the borrower through a number of charges some of which are not basic charges but are designed to arise within the time duration of loan repayment.
Unfairly high loan repayment rates can also be taken as unfair terms. Fraudulent characteristics also involve elements of manipulation or deception by the lender by concealing some of the binding elements from the borrower through ambiguous terms. It also includes the usage of harsh approaches or duress on a borrower in the process of borrowing. These thus explain predatory lending as the aspect of the lender taking advantage of the borrower in order to maximize on revenues (Carr and Kolluri, 2001).
Though defined in a wide and abstract terms, the elements of predatory lending are explicit and easily identifiable. One of the directly identifiable elements of predatory lending is the unreasonable interest rate that may be charged on a borrower. This rate becomes unjustifiable especially if its deviation from the standard credit worthiness consideration is largely significant. The excessive interest rates could be charged depending on a number of factors that could range from racial discrimination, to political factors. Banking or lending being a free business in a relatively free market, the lenders could also take advantage of the ignorance of borrowers as well as their vulnerability in order to maximize benefits from these borrowers through highly charged interest rates.
Predatory lending can also be evidenced in cases where the lender dictates conditional terms in lending especially in cases of considered soft loans in which the rates of charges on the loan and even the interest rate is not fixed. The lenders thus take advantage by inflating such charges and even the interest rates. There is also a possibility of loans agents being used to defraud a borrower in the course of processing a loan. Under these circumstances, the lender could make some dealings with the agent to defraud the borrower through inflated cost. Influencing a borrower on taking a loan that is beyond his or her repayment capacity, subject to a lucrative security is also a strategy of extracting such property from uninformed borrowers (State, 2009).
It is worth noting that cases of predatory lending occur mostly due to the ignorance exhibited by the customers.
The bodies which are meant to govern a banking system in a country equally play a role in this process. Laxity exhibited by these bodies usually leads to the predatory lending by commercial banks. Finally, it should be noted that predatory lending is unethical and should be avoided by all means.
History of predatory lending
The history of predatory lending can be traced to the year 1980 following the emergence of subprime loans. With the introduction of subprime loans in which lenders had reduced the necessary requirements of loan provision such as the emphasis on credit worthiness, more measures were taken by the lenders to increase their revenues in the industries following their increased risks in giving out the loans. In the United States, for example, the federal government helped in the establishment of subprime lending in the country by deregulating the interest rates that lenders charged their borrowers. Further measures were taken to remove restrictions that had been earlier put on loans by a number of states in the United States. This in effect gave the lenders the powers that they needed over borrowers. The deregulation also gave lenders advantage to establish and define independent terms in different lending cases. These deregulations can thus be seen as the root cause of the predatory lending (Financial, 2007).
Following its developments in the 1980s, the aspects of predatory lending was fostered by ignorance of people and the deregulation which then made the selfish moves of the lenders together with their agents to be legal following the withdrawal of the laws that regulated such practices. With the intent to exploit especially the more vulnerable poor people, this act of predatory lending was sustained throughout the end of the twentieth century. A number of regulations have been passed by states and nations in an attempt to control the act though such legislations seem to be ineffective by the fact that predatory lending still exists (Miroff et al., 2009).
History of banking in Saudi Arabia
The history of banking in Saudi Arabia can be traced to as early as the first half of the twentieth century. Though the development of the modern banking system was established in the year 1952 with the formation of the “Saudi Arabian monetary agency” whose role was the monetary regulations in the country, some elements of banking and money transfers had been witnessed in the country in the first half of the twentieth century and even the nineteenth century (Sama, 2004). Some foreign banks had for example established their branches in Saudi Arabia. The increase in production and trade of oil by Saudi Arabia then contributed to increased cash flow into the country and within the country causing the need for more established banking system. A number of both foreign and local banks were then registered in the country to enhance the provision of such monetary services following the establishment of the monetary agency.
The government of Saudi Arabia then established a basis for a strong banking system by monitoring and supporting the banks in their operations. This move, for example, helped to restore banks that were threatened by collapse due to mismanagement and poor lending behavior. A case example was the government’s move to save Riyad bank in the year 1960 following its instability. The government through the Saudi monetary agency ensured that proper regulatory measures were put in place that included mergers and acquisition of the bank’s shares to ensure the bank’s stability. Following technicalities that were realized to threaten the banking industries through possible collapse, general measures were taken in the mid 1960s to generally strengthen the banking sector in Saudi Arabia.
A law was established in the year 1966 for a stronger control of the banking system by Saudi Arabian monetary agency. The agency was empowered to a supervisory role in which it was to regulate the operations of banks in the country. It was also during this time period that the banking industry spread its network to cover the whole country in terms of geographical distributions (SAMA, 2004).
The Saudi banking system further experienced developments in the 1970’s in terms of capacity of the sector. There was also in this time period developments of money lending for the purposes of investments. This development was initiated by the then government of Saudi Arabia through establishing financial institutions. Banks were at the same time licensed to lend out money to customers for the same reason. There was however problems with financing of small investments as well as individuals as the lending scheme only covered established industrial enterprises. There were also reported cases of irregularities in the banking sector in Saudi Arabia by this time period (SAMA, 2004).
The Saudi Arabian banking sector which has been under the supervisory role of the Saudi Arabian monetary agency, which is the country’s equivalence of federal bank in the US, can be taken as having depended on weak legal regulations throughout its existence since the nineteenth century and twentieth century. This is a view that is arrived at following the fact that major legislations on the regulation of the lending of banks and financial institutions were developed in the years 2008 and 2009 (Oxford, 2009).
The banking system is adopting the Islamic system of banking. The adoption Islamic banking system by banks in Saudi Arabia is on the other hand more of a hybrid development. This is because the banking system is not purely based on this particular system of banking that is based on Islamic laws of non interest payment. It could thus be identified that the banking system in Saudi Arabia is a free market in which suppliers, that is the bankers, and the consumers are free to adopt a system of their choice. The Saudi Arabian monetary policy is also identified to be operational in the form that is similar to any other central bank thus giving the deviation from an exclusively Islamic banking system (Jaffer, 2005).
Also significant among the features of the banking system in Saudi Arabia is the lack of direct control of the commercial and even Islamic banks by the country’s equivalent of the Central Bank. Though the Saudi Arabian monetary agency has a supervisory role over the operations of the country’s banks, it lacks the mandate to control such operations. A bank in Saudi Arabia is for this instance free to formulate its operational policies into market exploration without strict guidelines from the monetary agency. Activities of banks such as inter banks competitions strategies that could be reflected in the services offered by these banking institutions are for example thus less regulated. Similarly, the services offered by these banking institutions are more of operational in a free market environment with limited regulations from the supervisory body.
It is thus a consequence that the activities and the processes of operations of these banks in terms of the services they offer to their customers solely depend on the interest of these banking institutions. The interest again being whether to serve the interest of their customers through fair terms of operations or to exploit their customers in the bid to extract money from such vulnerable customers whose interests are not sufficiently protected by the country’s legal system. The bankers together with their agents are thus perceived to be free to apply to their best interest policies and terms of banking services that will enable them to increase their revenue in the banking market.
According to Stock Trader (2009):
This predatory banking procedure is an accounting practice, and a method of order – posting imposed by our nation’s banks. First, the banks claim they have the right to record transactions in any order they choose. In reality, they use one posting method, which is to record transactions from largest to smallest regardless of the order those transactions were made. (Stock Trader, 2009, p. 1)
The chart below has been claimed to fit all the major banks in the US:
This has just but one meaning, that the banks are in a perfect position to, for example, takes advantage of an individual customer’s vulnerability in terms of being desperate for financial assistance or even a general economic strain to exploit consumers for the financial advantage of the banks.
The minimum regulation in the industry also offers chance for the application of practices that are deemed to be unfair to customers such as lending conditions and even illegal activities in the general banking processes and in particular, lending of money to customers together with the process of repayment of such borrowed money by such consumers. There is therefore a general risk of high level malpractices in the banking system in Saudi Arabia (Wilson, 2004).
Predatory Lending in Saudi Arabia
As noted above, predatory lending involves the charging of fees which are not made clear in the course or processing a loan. These extra fees are meant to benefit the banks and actually are a form of “stealing”. It has also been shown that at times lending rates vary depending on some factors which are not made clear to the borrower.
On the issue of predatory lending in the context of the Saudi banking system, it is significant to note the fact the banking system in Saudi Arabia operates on an Islamic banking system. Acknowledging this fact is very important as some of the aspects of Islamic banking can be said to play a significant role in reducing the level of predatory activities. To best analyze to what extent predatory lending takes in the Saudi Banking system, the Islamic banking system as applied in Saudi Arabia will be closely examined and through this examination loops of predatory will be brought to light.
Islamic Banking as Applied in Saudi Arabia
Islamic banking is still a young concept in the market but it is quickly developing at a rate which can be said to be satisfactorily. Very simply, Islamic banking can be defined “a system of banking, which is consistent with Islamic Shariah law and guided by Islamic economics” (Islamic, n.d., p. 1). The most profound character of Islamic banking is the prohibition of payment of interest. It is argued that interest should not be earned from money but rather from goods and services. This explicitly makes lending of loans a challenge for Islamic banking because if it is done then no interest will be charged:
The main argument against interest is that money is not used as a commodity with which to make a profit but that it should be earned on goods and services only, not on control of money itself. Features of Islamic Banking are based on ethical principles. (Islamic, n.d., p. 1)
This has therefore made banks operating on the Islamic banking system to explore different ways of making money or rather lending. It is, therefore, arguable true that for an Islamic banking system, lending can of money cannot be used as one of the means of predatory lending (Gafoor, 1995).
As noted above, Islamic banking operates on the principle of upholding ethics. This is best summarized as:
Money does not generate or beget money in itself, but it becomes productive if it is involving an activity or work; Investment is subject to the rule of profit and loss sharing; Investment in business activities is lawful, but prohibitions should be avoided. ; Contracts must be free of gharar (uncertainty, ignorance and the conditions which lead to disputes). (Islamic, n.d., p. 1)
It is clear that the principles underlying the Islamic banking system clearly set a platform which discourages predatory like activities to be exercised by the bank. Under the Islamic banking system, interest henceforth referred to Riba is highly prohibited. Riba has been defined “any excess compensation over and above the principle which is without due consideration” (Islamic, n.d., p. 1). Riba has also been associated with; “payment related to extension of the payment period for additional payment of money; It is also called Riba Jahiliyyah which was a pre-Islam form of usury and the worst of its kind” (Islamic, n.d., p. 1).
It is quite clear that the Islamic system is tight, and that the possibility of banks operating under the system engaging in some kind of predatory activity is quite minimized. By prohibiting “interest based banking and unclear contracts” (Islamic, n.d., p. 1) the banks are limited on the use of vitals channels which are mainly exploited in the case of predatory activities.
Unlike the western system of banking, the Islamic banking can be said to be highly transparent. There are seven channels used for the purpose of lending: “Murabaha (sale contract), Mudaraba (part financing), musharika (partnership), Ijara (rental/lease), Tawarruq (overdraft facilities) Istisna’a and salam” (Islam, n.d., p. 1). A brief explanation of the above methods will show the transparency with which the Saudi Arabia bank operates.
This is carried out for the case of a need for a short term lending, whereby a person in need of such a financing will approach a bank and the bank which finance the transactions. For instance, the bank can buy goods which the client required and sell the same good to the customer but at a high price. The time period for the payment of the goods is agreed upon and when the period id due the customer pays the funds to the bank after which possession passes down to the client. The mark up is calculated bases on some agreed percentage.
This is a joint investment made by the bank and customer whereby profits and losses are shared proportionally in accordance to the amount of capital contributed. The client is however expected to make a significant contribution on the knowhow.
In this case the bank is the sole financer and the client plays the role of management through the contribution of knowhow. Profits and losses are shared between the company and the client.
This is where the client buys the shares of a property or business from the bank over time in order to gain full ownership. This happens for purchase of houses. Other channels used include tawarruq, istisnaa and salam.
Critical comparison of Saudi Arabia banks and Americans Banks
Banks in Saudi Arabia significantly operate on the Islamic principles outlined above. As outline above, banks operating under the Islamic banking system consistently ought to uphold integrity associated when lending out to its clients. Carr and Kolluri (2001) argued that predatory lending is usually based on the ignorance of the borrowers. It is surprising that banks target those people who are easily expoitable:
They market their products to customers they identify as financially unsophisticated or vulnerable, and therefore most likely to accept highly unfavourable loan terms. In particular, predatory lenders look for people with limited education who are not adept in financial matters and lack the financial sophistication to scrutinize loans. Such lenders often prey on households that have limited incomes but significant equity in their homes. The elderly are a primary target for predatory lenders. (Carr & Kolluri, 2001, p. 2)
In the words of Carr and Kolluri (2001) banks intentionally prey on the ignorance of their customers. Lack of proper understanding of the process of acquiring a loan and the charges involved is a great advantage to banks operating under the western system of banking. However, this cannot happen in Saudi banks because it will be explicitly breaking the principles upon which the banks are established. It is worth noting that banks operating under the Islamic system of banking cannot enter into an agreement which the client is ignorant about – it against the Islamic principles of banking. Saudi banks are therefore bound to reveal all significant information about a contract to the client and this eliminates the chances of a bank preying on the client.
The western banking system has loan systems which are abusive:
Predatory loan terms are structured to extract the greatest possible return to the lender. For equity stripping purposes, they are also routinely designed to preclude a borrower’s ability to repay the loan. The loan itself may be unnecessarily large, even in excess of a 100 percent loan-to-value ratio. As long as the amount of the loan exceeds the fair market value of the home, it is difficult for the owner to refinance the mortgage or to sell the house to pay off the loan. Negative amortization loans are structured so that interest is not amortized over the life of the loan and the monthly payment is insufficient to pay off the accrued interest. The principal balance therefore increases each month and, at the end of the loan term, the borrower may owe more than the originally borrowed amount. (Carr & Kolluri, 2001, p. 3)
The banks which operate using the American banking system usually take advantage to a great extent when they are lending to clients. It should be noted that the above mentioned unfair means of extorting funds from clients when they are seeking loans from banks. It is worth noting that such a scenario is completely eliminated when Saudi Arabia banks are in question. This system of borrowing which is done through financing is quite considerate and the banks are deprived of the chances of predating on the client.
While banks in America will never share in any losses, this happens for banks in Saudi Arabia for some types of financing. For the western banking system, an interest has to be paid on a loan whether the business is making profits or not unlike in Saudi Arabia where banks by the virtue of sharing the losses and profits will not subject a client to such a harsh treatment.
Carr and Kolluri (2001) have pointed out that in some cases banks lend money even when they are aware that the borrowers are not in a position to repay such loans:
Initiating loans without considering the borrower’s ability to repay or structuring loans with payments that a borrower cannot afford can effectively strip the equity from a homeowner. And encouraging borrowers to consolidate consumer debts into a home equity loan with a higher interest rate than the underlying consumer credit debt—thereby also increasing the size of the loan—is a standard predatory lending practice. (Carr and Kolluri, 2001, p. 3)
It is very clear that banks using the western system of banking are bent on exploiting their clients by all means possible. It can be argued that banks operating under the western banking system do not uphold integrity and ethics. They are less concern about human welfare and are only concern about making more money. The above description of the way that western banks carry out their business is shown to be immensely predatory on clients.
Critical Comparison of Top Ten world banks and Saudi Arabia Banks
The list of the top ten world banks is dominated by banks from developed countries predominantly the US, UK, Japan, France, and Germany. According to the Eagle Traders (2011) the following are top ten in regard to assets in ascending order:
Deutsche Bank (Germany), BNP Paribas (France), The bank of Tokyo (Japan), UBS AG (Switzerland), Bank of America (US), The Sumitomo Bank (Japan), The Bayerische Hypo-und (Germany), The Norinchukin Bank (Japan), The Dai-IchiKangyo (Japan), and the Sakura Bank (Japan). (Eagle Traders, 2011, p. 1)
According to The Richest (2011), the following top the list in terms of credibility:
Citibank (US); JP Morgan Chase (US); HSBC (UK); bank of America (US); Credit Agricole Group (France); Royal Bank of Scotland (UK); Mitsubishi Tokyo Financial Group (Japan); Mizuho Financial Group (Japan); HBOS (UK) and BNP Paribas (France). (The Richest, 2011, p. 1)
Regardless of the order taken the top banks in the world have a great influence when it comes to instituting financial policies in their areas of operations. The influence that the major banks have in most cases will spread out to smaller banks around.
It has been noted that even the top banks have at one moment engaged in some predatory activities. It is surprising that even after clients realize that banks have been predating upon their funds, the banks, some of which are on the above list, deny any wrongful dealing. It is only after much pressure that the “Lloyds has put £3.2bn into a compensation fund to be claimed by those to whom it sold payment protection insurance (PPI)” (The Independent, 2011, p. 1). It has further been noted that: “For more than a decade now it has been plain that insurance products were grotesquely sold” (The Independent, 2011, p. 1). A suggestion has been for other banks which participated in this activity including Barclays, HSBC and The Royal Bank of Scotland to also consider making similar compensation. In detail the predatory banking which these banks engaged in included:
The selling of insurance by banks was not some innocent mistake, but a despicable act of customer gouging. It is estimated that some two million people were sold an insurance policy when taking out a loan (which supposedly gave them cover in the event that they could not make repayments) that, for technical reasons, they never had a hope of claiming on. And even more disgracefully, it was often less wealthy customers who were targeted by commission-hungry bank insurance salesmen. The practice was similar to the extortionate overdraft and credit card charges that have been levied in recent years. In both cases, banks have targeted the most vulnerable and least financially savvy of their customers. (The Independent, 2011, p. 1)
Similar cases have been witnessed in the US. Top banks in US which are at the same time among the top banks in the world have exhibited predatory practice at even a higher level than those in the UK. There are claims that US banks have gone steps ahead to ensure that there are enough policies to protect their interest. Kee (2008) made estimation that:
The US economy and consumers specifically lose approximately $30 billion every year due to this ongoing predatory practice. The persons most affected by this practice are the same persons who are already struggling to pay mortgages that were designed to put them in homes they normally could not afford. (Kee, 2008, p. 1)
According to News Room (2010), the American top banks know where to pull the strings to their advantages:
If you wonder why doing wrong isn’t against the law, it’s because the owners and managers of America’s predatory banks paid handsomely to get the laws changed. Not only did their lobbyists get the job done, in the words of Senator Dick Durbin (D) Illinois, “They frankly own the place,” today. (News Room, 2010, p. 1)
It is clear that the influence that the top world banks have puts them in a position that they can influence governance to their advantage. The top banks have seemingly learnt to use the immense influence they have to prey on consumers. The world’s top banks are able to do this because they keep off the consumers from their operations. This is a fundamental concept that enhances predatory banking. The Islamic banking system makes it possible for the consumer to discuss the banking terms with the bank thus the issue of predatory banking is less likely to happen. It should be noted that Islamic banking system advocates for frankness and therefore it will wrong if the bank keeps something under the carpet.
Banks operate in a very secretive manner, for instance, it has been claimed that it is possible that there is more $60 million in form of credit default swaps around the world though in some cases it is only shown as just $16 million:
The issue of predatory lending has been explored in depth. Predatory lending, though, abstract has been shown to be constitutes all the activities that are meant to obtains money unfairly from a borrower. It has been shown that this obtaining of money unfairly from the borrower is mostly carried out in a number of ways and most importantly the borrower’s ignorance on financial issue is maximally exploited to ensure the lender obtains the maximum benefit from the borrower. This is done by not fully exposing all the significant details of a contract such as hidden charges which are not exposed. At times direct there can overcharging of loans borrowed by some people basic on some factors which are not directly related to the credit worthiness of the borrower.
Predatory lending has been mostly associated with the western world and is said to have started as early as in 1980 after the subprime loans emerged. With the emergence of the subprime loans there was a reduction in the requirements for creditworthiness for one to obtain a loans but corresponding the charges associated with acquiring were high.
In Saudi Arabia, the banking system is regulated by the Saudi Arabian Monetary Agency which was established in 1966. Though the Saudi Arabian Monetary Agency does not completely control the banking system in Saudi Arabia it nevertheless gives important guideline to the banks. The Saudis being Muslims prefer to use the Islamic banking system. It has been shown that the nature and principles of the Islamic banking system makes it very hard for banks operating on the principles of Islamic banking system to engage of predatory behaviors. This is because the Islamic banking system encourages openness in carrying out business transactions. It will be against the principles of Islamic banking system for a bank to fail to reveal information which can be viewed as important and which can alter the decision of a client into signing a contract with a bank.
It is very surprising that the criteria upon which banks operating under the western system uses to engage in predatory lending is a practice that is considered illegal under the Islamic banking system. The Islamic banking system operates on integrity and endeavors that ensure that predatory like activities do not take place and actually that is the basis upon which bank interest, commonly referred to as Riba, is banned in Islamic banking systems. Saudi Arabia has banks operating under the Islamic banking system and due to many advantages, from the perspective of the customer; most of the people will opt to bank with the Islamic banks. Banks in Saudi Arabia offers very competitive products based on Islamic banking; these products omits the possibility of banks predating on their customers by the fact that the banks will share part of the loss and sometimes, depending on the product in question, the whole loss. This does not happen in the western world as banks out there play it safe and avoid making any losses.
It is therefore correct to argue that banks in Saudi Arabia do not engage in predatory lending. This has been due to the principles of Islamic banking which prohibit predatory kind of business activities. This does not happen in the western world where banks have well and elaborate system of predating on their clients.
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