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.
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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.
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?


