Bankruptcy laws that banks endorsed work against customers © Roy McMahon/Corbis

The Basics

Banks feasting on bankrupt customers

Helped by the 2005 bankruptcy law, banks pushed consumers into too much credit, collected fees along the way and then went after them for defaulting.  

By David Weidner, MarketWatch

For those who underestimate the power of the banking lobby as financial "reform" weaves its way through Washington, one need only look back five years ago to see how influential banks are at pressing their agenda.

In 2005, Congress yielded to an eight-year, $100 million campaign by banks to change personal bankruptcy law. In effect, the Bankruptcy Abuse and Consumer Protection Act made it harder for individuals to wipe away their debts under Chapter 7 of the U.S. Bankruptcy Code. More had to file under Chapter 13.

The bill was signed into law by President George W. Bush despite protests of consumer-protection groups, economists and legal experts. President Bill Clinton was presented an earlier version of the bill, but he vetoed it.

Under the new law, it became hard to file for any type of bankruptcy. There were additional reporting requirements, more fees, mandatory credit counseling and new burdens on bankruptcy attorneys. But the real meat of the act was the higher threshold for Chapter 7 cases.

Chapter 13 was preferable to the banks because it doesn't wipe away debt. Individuals still had to pay down some of their credit cards and loans.

The stinging effects of this change have become abundantly clear as unemployment hovers near 10% and Americans are swamped with debt.

Eventual rise in filings

At first, the new law seemed to slow the rash of filings. Only 597,965 personal bankruptcies were made in the first year after the law passed. But as the economy turned, filings rose, to 822,590 in 2007, 1.1 million in 2008 and 1.4 million last year, according to the American Bankruptcy Institute.

The new law didn't stem the tide of bankruptcy filings -- it only temporarily slowed the pace of filings under Chapter 7. Filings under that part of the bankruptcy code actually rose to 71% last year, up from 59% in 2006, or to about the same level of Chapter 7 filings before the 2005 law was enacted.

Here's why the rash of Chapter 7 filings is alarming: Under the 2005 law, only debtors with incomes under their state's median income qualify. Debtors who make more than the median income can qualify, too, if they pass an onerous "means test." In other words, the economy has taken such a hard toll on the poorest Americans, and their debts have become so deep, that they're easily able to qualify for Chapter 7 even though banks were able to create higher hurdles for that more drastic step.

Fueling the crisis

The fallout doesn't end there. A study by the New York Federal Reserve Bank in November said the new bankruptcy law actually fueled the financial crisis by precipitating subprime mortgage defaults by as much as 128,000 a year.

Under the old bankruptcy law, "over-indebted mortgagors could free up income to pay the mortgage by filing bankruptcy and having their unsecured debts discharged," the report stated. The new law "blocks that maneuver for better-off filers by way of a means test."

On the surface, all of this sounds like bad news for the banks. Bankruptcy brings credit card defaults and foreclosure -- both big losses for banks. But, in reality, banks benefited from the change in bankruptcy law by limiting losses and accelerating the credit cycle.

First, banks swamped consumers with easy credit. They offered unlimited credit cards and jumbo mortgages to borrowers with little or no documentation. Then the banks piled on home equity lines and refinancing. Throughout the process, they took thousands of dollars in fees along the way.

Continued: More bankruptcy reform?

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113Comments
9/07/2010 2:42 PM
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Interesting article.
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Follow the money. As the big rich get richer, the middle class and the working class get poorer. Seems very obvious that a few are mining gold and many are getting the shaft.
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I don't see how anyone can defend the banking system

in America. The fact that some indivudals are irresponsibel has nothing to do with a financial system which is totally corrupt. They would be classified as organised chriminals if our government did'nt leagalize and support them. The same is true for wallstreet and insurance.

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If a bank makes $400,000 on a $200,000 house and the government guarantees the loan, isn't that a license to steal, big time? Any loan the taxpayers guarantee should be made directly at a small interest and house notes would be more than cut in half and we would make income for the treasury as well.

It's easy to understand why the mafia got into banking, with the government on your side it's much easier to steal; Likewise, the old protection rackets were nothing compared to what legalized insurance companies get away with.

We don't need minor change we need major surgery.

9/03/2010 1:16 PM
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Good points, revelatons223.
9/02/2010 12:29 PM
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Mrchattycathy, I agree with your observation(s). But that goes to show that even back then we had problems that was being shown but basically ignored.

 

Do not let politics blind your eyes. Bailouts started before this last administration. What we really need to focus on is what is our core problem. Unless we put our finger on that, we can not fix it and Band-Aids will always be applied. No matter the fix it will not appear over night. We have become so impatient these days in not giving anything the time to work. No one administration is going to fix the core problem (Greed being one of the major factors). After a few of them the last one will reap the benefits of the one administrations that take the heat. I watching every move to see what future impacts are in place. Alternative energy was put on the back burner in the 70's. Vehicles could have already be doing what they are doing now, but were put on shelves. I had a cousin who designed one of those engines and he was bought out and we never saw the engine hit the market. So years of these actions have just caught up with us. Let us research these events and get them fully going now. I support the use of Windmill power to off set electric needs and give us safety grids. But it took this to get that project off the ground after 20 years of trying. Where were you 20 years ago?

9/02/2010 12:24 PM
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I did not like the change in 2005, and now it is even clearer. I had some friends who beat the deadline and they have recovered today. I do agree that the law was being abused by those who could. I did a study in one state and you would have been shocked back in 1986 what I found. People filing to keep a yacht. So yes there was abuse, but the change in 2005 was for GREED. You can not fix GREED with laws, you just fuel it.....
9/01/2010 1:15 PM
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When was this article written? It bothers me that most articles on MSN don't have dates on them so it's impossible to know if it's a new article or an old one.

7/10/2010 6:24 PM
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its very simple they set these loans up then run across the street and sign on with paulson and bet them to fail using govt F\F or fha as funding the deals  and rip the govt and taxpayers of the generosity they provide . they are predators nothing more and should be jailed .

they knowingly abused the system they are sharks. I think they actually believe they can take it with them when they die.......

hmmm i guess when you have to pay 2,000 $ an hour for a call girl its being a crook is justified somehow , nothin but the finest for these guys and the short life we all pay for.. its the big joke on wall street

they just didnt let us in on the little secret and kept it to themselves and the small circle of friends within the financial house they set up.

 they should be not allowed to touch anymore govt funding for anything.

 

citibank mortgage bill stated right on the back every month ... we have the right to call in your loan any time we please.....duh......paid my 25 yr off in 7 yrs they were not happy with me at all..  heh you try to screw me i screw back... now i pay cash for everything i buy  i dont need credit for what?and i could care less about my credit score....

 

i will be waiting at the gates of hell for paulson and tourre with pitchfork in tow and that piece blankfein...these guys go to the pit and get no pass.. Dantes Inferno.

 

for them it was all hooray for me and screw you...

5/11/2010 10:29 PM
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To Pitbull lvr:  Take this for what it's worth.  What's done is done, put it behind you and start the rest of your life today.  The unemployment has been extended to many months so you have some income.  The government is subsidizing school for people in your situation look into it maybe you will find something else that really interests you.  Try to enjoy yourself, enjoy your family and friends.  There are things to do in life that don't cost money find them.  Believe it or not every problem is an opportunity (It sounds trite but it's true).  Find a way to make lemonade out of this.  Eventually the economy will come back and you can spend your time preparing for it or waiting for it.   Rise to the occasion, find ways to ease the stress for your spouse, kids and mother.  Become the strong person that is inside all of us and don't give in to dispair.  If you have children be their good example.  Make your mother proud of how good a person you have become.  Be your spouses partner and strongest supporter.  This too will pass... 
5/11/2010 10:12 PM
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To Wordfrominside: 

  It is incorrect to say that the "financial institutions" caused the problem.  Congress passed laws that allowed sub-prime loans.  But even then few if any banks would make those loans.  Then community activists (ACORN) picketed the banks and forced them to make "some" sub-prime loans.  But most of the bad loans were made by Fannie and Freddie after congress insisted.  In fact congress demanded they do it.  All of these loans were bundled and sold to investors.  Understand that 100% of those bad loans were insured and perfectly safe to investors (at least in theory).  But the massive number of bad loans and defaults exceeded the ability of the insurer to pay and the government would have had to make good on all of these loans (the government was the insurer of last resort).  They knew this and als knew it was cheaper, easier and better for all concerned (including homeowners) to pay off the investors and insurance companies.  It was far better then allowing them to fail and then litigating millions of individual loans.  The reason it isn't working is twofold:  1)The massive debt (state, federal and worldwide).  2)Our government choose Keneysian economic theory (i.e. government spending) as the solution and it doesn't work.  It failed horribly in the great depression and caused that to last 12 years or so until WW II brought us out of it.  However higher spending and higher taxes is a very appealing prescription to a politician so they prefer it. 

5/11/2010 9:54 PM
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To A bit cynical:  You say " the system we have created in America has become one where a few get extremely rich and the middle class and poor have seen their incomes go flat or decline for the past decade and more."  And yet the system you refer to is a constitutional republic where everyone is allowed to make their own choices and reap what they sow.  I happen to be in the middle class and am quite content with my life.  The single biggest expense I incurred were taxes.  In fact my gross taxes exceeded my gross living expenses.  Think about it next time you believe bigger government is the answer.  They are taxing you into poverty.  As for the CEO of Washington Mutual; so what!!  I'm not saying they all deserve their big salaries and bonuses but how does that affect you?  It isn't money out of your pocket.  Just as the big incomes movie stars make doesn't affect you.  If you focus on what other people have you will fail to appreciate what YOU have.   
4/26/2010 12:18 AM
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5 years ago I bought a house in CA. I didn't get a jumbo ARM because I wanted a 30 year fixed rate. I thought I was being smart. Now my house is worth 50% less than it was when I bought it and because I've always made my payments on time and I didn't get those stupid loans, I'm not eligible for a modification. I've just lost my job, which means I'm going to lose my home and have to declare bankruptcy. None of this is my fault. I did nothing to change the economy, and I've had the same job, working hard and with great reviews for 5 years. I would assume the rise in bankruptcies are from other people in similar circumstances. We will be moving in with my mother until I can get another job. I'm 55 and in live in an area with 15% unemployment. The prospects don't look great.
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Yes, we should all be more responsible for our finances; yet why doesn't this rule apply to corporations and banks that fail and file bankruptcy. They are not poor, yet when Enron went belly up, and cause millions of people to lose their saving and billions in unpaid dept, nobody told them "Oh no. You need to pay your dept", as the CEOs walk away with millions in their pockets.

 

Do the math. The money lost from individuals filing bankruptcy pails in comparison to the money lost when businesses and banks file.  So, to save us money, we give them massive loans to keep them afloat, and now then have all the excuses they need to cut pay, reduce benefits, drop pensions; yet somehow need to honor their agreements to pay CEOs bonuses.

 

I though bonuses were bases on profit, but I guess their based on screwing employees and getting away with in.

 

Bankruptcy should be hard for everyone, not just the middle class.

4/19/2010 10:58 AM
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Just for a moment lets stop judging each other. I am saying just for a moment can you see the predatory nature of these bankers.

It is like some creep enticing your children with a cute puppy while planning total destruction. Neither one has any conscience.

Get out of debt now! Get out of debt now! Get out of debt now!

4/17/2010 7:58 PM
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Bailing out banks was the biggest mistake ever made by our Government and worse of all giving relief to those who took on all sorts of exotic mortgages knowing well they can ill afford to pay for them.  Our whole system of Government needs to be rethought and redone.  The Government must function to protect only those who are hit by an act of God like Katarina and 911 type of situations. But not for the follies of Wall Street and individuals who were and are still living beyond their means.  Our Mortgage system to be completely overhauled and the two **** must be dissolved to devise a scheme like in denmark where no securitization of debts takes place like we have now and it can burden our Government ever in future.    In fact,  the Interest Deduction for Federal Income Tax purposes must be removed.   Because,  it is a act of folly perpetuated by a stupid Congress and Building Industry to subsidize and promote their business.   We are the old developed Country in the World who subsidizes  borrowing for a home.   No other country for good reasons have this give away of Interest deduction for Income Tax. 

 

We need to make Government small and efficient.  We should have publicly financed elections with a time window of only 90 days for electioneering.  We should guarantee high / good pay for our representatives with strict two term limits and bar PACS controlling the agenda or contacting any of our representatives while in Office.   This will attract smart and capable people to be our representatives in Congress and not some of those senile, extremists and morons who are now in effect on payroll of large companies or foreign governments.   And most Americans are so absorbed in sports and their lives that their view of the World is dictated or driven by a rich and well funded media companies.  They in fact set the Agenda and tone of what goes on and what to report and what not to report or to malign anyone like Rush Limbaugh is doing to President Obama.   Government.   The extremists must be watched like a hawk else we will face a bleek future of haves and have nots!

4/17/2010 12:18 AM
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Fact: Most Americans are 3 weeks away from bankruptcy.
4/16/2010 5:36 PM
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There are really three blocks of consumers who have been hammered in this economy. This is something that people who have not been following this story closely since mid-2006 don't understand.

 

The first block were the speculators. They were the first to get hit because they were in the hottest markets and they were the ones using the worst of the mortgage loan garbage and the most leverage. They were also the first ones to abandon their properties and go belly up.

 

The second block were the subprime borrowers. These people were just bad at math and were financially ignorant. They have learned their lesson hopefully for good from this experience.

 

The final block is what is going on now. These are the consumers and homebuyers who had good intentions and are generally prime borrowers who may have lost their jobs, were living in the worst hit areas of the real estate crash or had experienced some sort of health issue that just mushroomed into unmanageable circumstances.

 

In feel no pity for the first two blocks. I have some sympathy for the third block. And, until the issues surrounding this last block are resolved, the economy will never completely recover.

 

As for the financial institutions, these were the worst of the bunch. These people are professionals. Either they were stupid and didn't really know what they were doing in the first place (which makes you wonder about the professional standards of the industry) or they were just corrupt and decided that their duty to themselves and shareholders were more important than to the country or to their fellow human beings. No matter how you look at it, the bailout of these institutions were done to save the country. And, now there is a price to be paid. If this country (and everyone else in the EU) is smart, it will put back in the regulations that once existed, break up these monopolies/duopolies and start taxing transactions to limit the amount of speculation that permit these destructive asset bubbles in everything. When the industry has been shrunken to a proper size, we can take all of the capital that has been summarily wasted for a decade and get back to the business of rebuilding our country.

 

4/16/2010 3:59 PM
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I just helped my father-in-law file bankruptcy . It wasn't that hard and it wasn't very expensive. I'm in Florida and the  total cost of bankruptcy was $350. We met with an advisor 2x for less than an hour. My father-in-law had to listen  2x to financial counselors over the phone for about 45 minutes each time and fill out a financial expense and income form (the means test). The final thing he had to do was show up at court and answer a couple of questions. In the end $35k of credit cards were extinguished and he has a fixed income of around $50k. This article is full of gloom and doom but not reality.
4/16/2010 3:44 PM
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There is a disturbing trend in conversations like these to assume that the people who got into a situation that made them have to file for bankruptcy or who are in a bad situation are total deadbeats. There are a lot of intelligent, honest, hard working people out there who hit a rough patch. Anyone recall all the jobs that were lost in the last year and a half? Anyone recall the fact that the NUMBER ONE cause of bankruptcy is medical bills?

 

People need to educate themselves and be responsible. But for all of you who are just slamming people in a bad situation: I'm sure you're just perfect, have never made a mistake, a bad decision, or a bad investment.

 

Maybe we need to stop assuming the worst about the people in our society who are struggling. And to all the naysayers: Come back and talk to me when you have lost your job through no fault of your own or are too sick to work, have a family to feed and a mortgage to pay and have no income whatsoever. At that point you're living day to day. If the bank sent you an envelope saying  you'd been pre approved for a credit card, are you telling me you'd say "No, I'm going to pass this up because I am going to be responsible with my finances. My children can go a few days without eating, and who needs electricity?"

 

MEANWHILE the government bailed out the banks, and they took that money and gave millions of it to their CEOs...who are precisely the hypocrites who think bankruptcy laws should be tougher. We have become so self centered and greedy in this country that we have forgotten those around us.

 

Oh, and if these low income people who get into trouble are so stupid, you'd better not go where they work. So you're going to want to completely stay away from car washes or gas stations. These people are totally incompetent so you wouldn't want to trust them with your car. You can forget about fast food or buying groceries. Better clean your own office buildings too. And don't go to the mall, whatever you do. That's where a lot of low income people work. And definitely don't go to the luxury car dealership where I work. I am a college educated individual but I have to live paycheck to paycheck and can barely make ends meet. I've been without health insurance for three years so I couldn't care for my chronic illness and had to pay for things out of pocket, which ran up my debt.  I must be a deadbeat, and you definitely wouldn't want to come buy a car where someone like ME works, would you?

 

 

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