Private Liability for Reckless Consumer Lending

Congress recently enacted amendments to the Bankruptcy Code that possess the overarching theme of cracking down on debtors due to the in-creasing rate at which individuals have been filing for bankruptcy. Tak-ing into account the correlation between the overall rise in consumer credit card debt and the rate of individual bankruptcy filings, the author nevertheless hypothesizes that not all credit card debt is troubling. In-stead, the author proposes that the catalyst driving individual bankruptcy rates higher than ever is the level of “bad credit”—or credit extended to individuals even though there is a reasonable likelihood that the individ-ual will be forced to default. While the author recognizes the need to hold individuals accountable for the debt they incur, he contends that bankruptcy reform should be targeted towards those creditors who are partly, if not chiefly, responsible for causing a debtor to default, given creditors’ competitive advantage in determining the repayment capacity of individuals. To this end, the author explores the idea of imposing pri-vate liability on consumer lenders who bear primary responsibility for a debtor’s financial default through a contract defense to collection, or possibly an affirmative cause of action in tort. Possible consequences of this proposal, such as a reduction in lending activity, are considered and addressed.

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