Outlines First Whole-of-Government Strategy to Protect Consumers, Financial Stability, National Security, and Address Climate Risks
Digital assets, including cryptocurrencies, have seen explosive growth in recent years, surpassing a $3 trillion market cap last November and up from $14 billion just five years prior. Surveys suggest that around 16 percent of adult Americans – approximately 40 million people – have invested in, traded, or used cryptocurrencies. Over 100 countries are exploring or piloting Central Bank Digital Currencies (CBDCs), a digital form of a country’s sovereign currency.
[My personal belief is that Russian oligarchs, looking for places to stash their billions, had something to do with the run-up in value. The administration stated that “the use of cryptocurrency we do not think is a viable workaround to the set of financial sanctions we’ve imposed across the entire Russian economy and, in particular, to its central bank,” but that does not take into account purchases that might have been made before sanctions were imposed, or these new protections. A request for comment was unanswered.]
The White House provided this fact sheet detailing Biden’s whole-of-government strategy to protect consumers, financial stability, national security and address climate risks posted by digital assets:–Karen Rubin/news-photos-features.com
The rise in digital assets creates an opportunity to reinforce American leadership in the global financial system and at the technological frontier, but also has substantial implications for consumer protection, financial stability, national security, and climate risk. The United States must maintain technological leadership in this rapidly growing space, supporting innovation while mitigating the risks for consumers, businesses, the broader financial system, and the climate. And, it must play a leading role in international engagement and global governance of digital assets consistent with democratic values and U.S. global competitiveness.
That is why President Biden signed an Executive Order outlining the first ever, whole-of-government approach to addressing the risks and harnessing the potential benefits of digital assets and their underlying technology. The Order lays out a national policy for digital assets across six key priorities: consumer and investor protection; financial stability; illicit finance; U.S. leadership in the global financial system and economic competitiveness; financial inclusion; and responsible innovation.
Specifically, the Executive Order calls for measures to:
Protect U.S. Consumers, Investors, and Businesses by directing the Department of the Treasury and other agency partners to assess and develop policy recommendations to address the implications of the growing digital asset sector and changes in financial markets for consumers, investors, businesses, and equitable economic growth. The Order also encourages regulators to ensure sufficient oversight and safeguard against any systemic financial risks posed by digital assets.
Protect U.S. and Global Financial Stability and Mitigate Systemic Risk by encouraging the Financial Stability Oversight Council to identify and mitigate economy-wide (i.e., systemic) financial risks posed by digital assets and to develop appropriate policy recommendations to address any regulatory gaps.
Mitigate the Illicit Finance and National Security Risks Posed by the Illicit Use of Digital Assets by directing an unprecedented focus of coordinated action across all relevant U.S. Government agencies to mitigate these risks. It also directs agencies to work with our allies and partners to ensure international frameworks, capabilities, and partnerships are aligned and responsive to risks.
Promote U.S. Leadership in Technology and Economic Competitiveness to Reinforce U.S. Leadership in the Global Financial System by directing the Department of Commerce to work across the U.S. Government in establishing a framework to drive U.S. competitiveness and leadership in, and leveraging of digital asset technologies. This framework will serve as a foundation for agencies and integrate this as a priority into their policy, research and development, and operational approaches to digital assets.
Promote Equitable Access to Safe and Affordable Financial Services by affirming the critical need for safe, affordable, and accessible financial services as a U.S. national interest that must inform our approach to digital asset innovation, including disparate impact risk. Such safe access is especially important for communities that have long had insufficient access to financial services. The Secretary of the Treasury, working with all relevant agencies, will produce a report on the future of money and payment systems, to include implications for economic growth, financial growth and inclusion, national security, and the extent to which technological innovation may influence that future.
Support Technological Advances and Ensure Responsible Development and Use of Digital Assets by directing the U.S. Government to take concrete steps to study and support technological advances in the responsible development, design, and implementation of digital asset systems while prioritizing privacy, security, combating illicit exploitation, and reducing negative climate impacts.
Explore a U.S. Central Bank Digital Currency (CBDC) by placing urgency on research and development of a potential United States CBDC, should issuance be deemed in the national interest. The Order directs the U.S. Government to assess the technological infrastructure and capacity needs for a potential U.S. CBDC in a manner that protects Americans’ interests. The Order also encourages the Federal Reserve to continue its research, development, and assessment efforts for a U.S. CBDC, including development of a plan for broader U.S. Government action in support of their work. This effort prioritizes U.S. participation in multi-country experimentation, and ensures U.S. leadership internationally to promote CBDC development that is consistent with U.S. priorities and democratic values.
The Administration will continue work across agencies and with Congress to establish policies that guard against risks and guide responsible innovation, with our allies and partners to develop aligned international capabilities that respond to national security risks, and with the private sector to study and support technological advances in digital assets.
Just before taking the stage at Kings Theater in Brooklyn, NY, with Julian Castro, in her campaign for president, Senator Elizabeth Warren detailed how her administration will fix the bankruptcy system to protect working families and give people a second chance. It is part of her plan to restructure the systemic impediments to financial and economic opportunity for ordinary Americans.The plan to reform bankruptcy laws is a particular jab at Vice President Joe Biden, who as Senator representing the State of Delaware, helped push the George W Bush re-write of the bankruptcy laws that shielded financial institutions but put consumers on the hook. This is from the Warren campaign:
As one of the nation’s leading experts on the financial pressures facing middle class families, Elizabeth conducted groundbreaking research on why families go broke. Elizabeth spent ten years battling the banking industry over the bad 2005 bankruptcy bill — which spent $100 million on lobbying efforts. The bill became law with overwhelming support from Republicans and support from some Democrats in Congress.
I spent most of my career
studying one simple question: why do American families go broke?
When I started my career as a young law
professor, I thought — like a lot of people at the time — that most families
went broke because they were irresponsible or wasteful. They lived beyond their
means. And when their irresponsibility finally caught up with them, they took
advantage of our bankruptcy system to get out from under their debts.But when I
started to teach bankruptcy, I found that no one — not even the supposed
“experts” — had actually dug into the data to figure out what drove families
So I found two incredible partners and set out
to gather the data about why families go broke. That was back when you had to
collect information by hand, and courts charged a lot to make copies for you.
To save money, I flew around to courthouses all over the country with my own
photocopier — nicknamed R2D2 — strapped into the airplane seat next to me,
copying thousands of bankruptcy filings to begin understanding why American
families turned to bankruptcy.
I’ll never forget sitting in a wood-paneled
courtroom in San Antonio on one of my first trips, watching the families filing
for bankruptcy move in and out of the courtroom to appear in front of the
judge. They looked just like the family I grew up in — hanging on to the
ragged edge of the middle class. Now they were standing in front of a judge,
ready to give up nearly everything they owned just to get some relief from the
bill collectors.Our research ended up showing that most of these families
weren’t reckless or irresponsible — they were just getting squeezed by an
economy that forced them to take on more debt and more risk to cling to their
place in America’s middle class.
And that meant one bad break could send them
tumbling over the edge. The data showed that nearly 90% of these families were
declaring bankruptcy for one of three reasons: a job loss, a medical problem,
or a family breakup.
In the early 1990s, Congress launched a
blue-ribbon commission to review the bankruptcy laws and suggest improvements.
I was asked to help. Initially, I said no. Then I thought about the stories I
had come across in our research. I thought about the family that finally got a
shot at their lifelong dream to launch a new restaurant — and it went
belly-up. The young and very tired woman who described how she finally managed
to leave her abusive ex-husband, but now was alone with her small children and
a pile of bills. The elderly couple who had cashed out everything they owned
and then went into debt to bail out their son who was fighting addiction and
put him through rehab again and again. And then I called back and said yes.
That’s what started my ten-year fight against
the banking industry’s effort to change our bankruptcy laws to squeeze
everything they could out of working families. Just as the commission’s report
was due, the banking industry wrote its own version of a bankruptcy bill and
got its allies in Congress to introduce it. In the industry’s version of the
world, Congress could support either “honest people who pay their bills” or
“people who skip out on their debts.” There wasn’t any room to talk about
rising health care costs or lost jobs that pushed working families to the
brink. I knew that those hundreds of changes in the industry-backed bill would
make it harder for struggling families to get relief.
And I knew I needed help. I was lucky to pick up
some terrific allies in the Senate. Senator Ted Kennedy, who led the fight for
years. Senators Paul Wellstone, Russ Feingold, and Dick Durbin all
enthusiastically jumped in. For the next three years, we fought off the
industry as best we could. Ultimately, however, the Senate and House passed the
industry-backed bill by wide margins. But President Clinton, in the last days
of his presidency, upended the industry plan and vetoed its bill.
The financial industry lost that round — but it
didn’t quit. Eventually, it rallied its allies in Congress again and managed to
push through another version of its bill in 2005 with overwhelming Republican
support and some Democratic support.
I lost that fight in 2005, and working families
paid the price. But I didn’t stop fighting to hold the financial industry
accountable and to help American families. I started laying the groundwork for
new protections for credit card users and in 2007 proposed the idea of a new
federal agency to protect
American families from tricks in mortgages, student loans, and other financial
products. The rules helping credit card users ended up in the Credit CARD Act,
which President Obama signed into law in 2009. And in 2010, President Obama
signed that new consumer agency — the Consumer Financial Protection Bureau —
into law too. That agency has now returned
$12 billion to people who were cheated by
big banks and other financial firms.
But there are still serious problems with our bankruptcy
laws today, thanks in large part to that bad 2005 bill. That’s why I’m
announcing my plan to repeal the harmful provisions in the 2005 bankruptcy bill
and overhaul consumer bankruptcy rules in this country to give Americans a
better chance of getting back on their feet.
Making it Easier to Obtain Relief Through Bankruptcy
Thanks in part to the 2005 bankruptcy bill, our current
system makes it far too hard for people in need to start the bankruptcy process
so they can get back on their feet. My plan streamlines the process, reduces
costs, and gives people more flexibility in bankruptcy to find solutions that
match their financial problems.
Streamlining the bankruptcy filing process. Currently, there
are two main types of bankruptcy proceedings for individuals — the traditional
Chapter 7 proceeding and the longer and less generous Chapter 13 proceeding. In
Chapter 7, bankruptcy filers pay off their debts by surrendering all of their
property other than that protected by
“exemption” laws, but keep their future income. In Chapter 13,
filers keep their property, but undertake a multi-year repayment plan.
The core of the 2005 bankruptcy bill was an onerous and
complicated means test that forces many people with income above their state’s
median income to file for Chapter 13 and make payments from their wages for an
extended period. That is a big additional burden. In Chapter 13, debtors remain
in bankruptcy longer and must pay more to creditors. Many are unable to
complete their repayment plans and do not obtain a discharge of
their unpaid debts at all.
My plan does away with means testing and the two chapters
for consumer debtors. Instead, it offers a single system available to all
consumers. Here’s how it would work.
When people file for bankruptcy, they would disclose all of
their debts, assets, and income, just as they do now. And just as under the
current system, creditors must stop all collection actions against the debtor
outside of bankruptcy court.
Filers would then choose from a menu of options for
addressing their debts. The menu of options available would include a Chapter
7-type option of surrendering all non-exempt property in exchange for having
their unpaid debts “discharged,” as well as options that allow people to deal
with specific financial problems without involving all of their obligations.
For example, someone might use bankruptcy to cure a home mortgage delinquency
while continuing to pay other debts outside of bankruptcy. Or if someone has
long-term debt she needs to restructure, non-exempt property such as a car that
she needs to get to work, a family home she wants to protect, or if the debtor
simply wants to try to pay her creditors, the debtor can also choose to file a
payment plan and request that the court limit the stay of collection actions to
the extent necessary to execute that plan.
As with the current system, certain types of debts would be
non-dischargeable. Additionally, creditors could seek to dismiss a case or
object to an individual’s discharge on grounds of abuse, and they would have an
easier time proving abuse for higher-income debtors. These provisions would
protect against misuse of the bankruptcy system.
My plan would make the bankruptcy system simple, cheap,
fast, and flexible. It would eliminate the burdensome paperwork that drives up
costs for filers and deters them from seeking bankruptcy protection in the
first place. The 2005 bill imposed the same onerous paperwork requirements on a
middle-class American filing bankruptcy that it did on a wealthy real-estate
developer. Both must file the same documentation — including months of pay
stubs and old tax returns — much of which is useless to creditors looking to
get debts repaid.
These requirements are costly and ineffective. The
nonpartisan Government Accountability
Office estimates that these requirements increased what a
Chapter 7 filer had to pay for a lawyer by over 50%. My plan scraps this
unnecessary paperwork and simply requires that bankruptcy filers disclose their
assets, liabilities, income, and expenses. If necessary, the court can always
direct people to provide more information.
Congress also added to the cost of bankruptcy relief in the
2005 bill by putting onerous requirements on consumer bankruptcy attorneys.
Congress required attorneys to certify the accuracy of debtor’s financial
disclosures, to certify the debtor’s ability to make certain payments, to
advertise their services in certain ways, and to provide certain financial
advice to clients. These rules, opposed by the American Bar Association,
increase costs to lawyers that get passed on to consumers, while failing to
adequately protect consumers against unscrupulous lawyers. My plan gets rid of
these requirements and authorizes local bankruptcy courts to develop
disciplinary panels to strengthen enforcement of the existing rules that
discipline ineffective or dishonest lawyers.
Reducing the costs of filing for bankruptcy. A Chapter 7
bankruptcy case today costs the person filing for bankruptcy $1,200 in attorneys’ fees on
average. Academic studies document how
families and individuals, ironically, have to save up for bankruptcy.
Bankruptcy filings spike every spring as tax refunds go to pay a bankruptcy
lawyer, and on days when people often receive paychecks.
Worse, many bankruptcy filers are
shuffled into a more onerous Chapter 13 bankruptcy because it
is the only way they can afford to pay their bankruptcy lawyer. These people
often do not need the more complicated and more expensive Chapter 13 procedure,
which at $3,200 on average costs
more than twice a Chapter 7 filing. Chapter 7, however, requires the filer to
have the cash to pay the lawyer up front, and most people filing bankruptcy are
by definition short on cash, while Chapter 13 allows the person filing to pay
the lawyer over time. Forcing people into Chapter 13 because they cannot afford
to pay their lawyer up front is a ridiculous way to run a consumer debt relief
My plan makes it easier for people to pay for the bankruptcy
relief they need. It automatically waives filing fees for anyone below the
federal poverty level and slowly phases in the fees above that line. And it
allows the bankruptcy filer to pay off reasonable lawyers’ fees at any time
during or after the bankruptcy, not just up front.
These proposals will make it cheaper and quicker for people
to obtain debt relief. And speed is important. Research has shown that the “sweatbox” period when
consumers wrestle with the decision to file for bankruptcy is particularly
damaging to families and their financial health. The 2005 law benefited credit card
companies by extending the sweatbox period. Bankruptcy is not the
right solution for every family facing financial difficulties, but for those
who need bankruptcy relief, it should be available without unnecessary
obstacles or costs. My plan will shrink the sweatbox and make sure that
consumers who need bankruptcy are able to promptly obtain help.
Expanding People’s Rights to Take Care of Themselves and
Their Families During the Bankruptcy Process
Bankruptcy law places certain spending limitations on people
while they are in the bankruptcy process. My plan pares back some of the
limitations that place a particular burden on people — particularly parents
with children — and limit their ability to recover after the bankruptcy
For example, during the debate on the 2005 bankruptcy bill,
Democrats proposed modifying the bill so that renters in bankruptcy could
continue paying their rent if it allowed them to avoid eviction. While that
change was voted down in Congress, my plan adopts it as a fair way to let
people avoid the incredible disruption of an eviction during the bankruptcy
Similarly, my plan allows people in the bankruptcy process
who select a repayment plan option to set aside more money to cover the basics
for themselves and their children. In 2005, Congress rejected an
amendment to the bankruptcy bill that would have allowed
parents to spend a reasonable amount of money on toys and books and basic
recreation activities for their kids during the bankruptcy process. That’s just
wrong — and my plan will provide those protections.
In that same vote, Congress rejected a change that
would have allowed union members to continue paying their union dues during the
bankruptcy process — a critical protection so that people can maintain their
employment and get back on their feet after the bankruptcy process is over. My
plan adopts that protection too for those people who choose a repayment
Ending the Prohibition on Discharging Student Loan Debt
We have a student loan debt crisis in America. And one
reason is that our bankruptcy system makes it nearly impossible to get rid of
that debt, even when you have nothing left.
Over the past forty years, Congress and the courts have made
it progressively more difficult to gain relief from student loan debt in
bankruptcy. Congress initially passed a law saying
that publicly backed student loans could be discharged only with a showing of
“undue hardship” by the borrower. The courts eventually interpreted
that language to impose a very high standard for discharge — a
standard that generally doesn’t apply to other forms of consumer debt. Then, as
part of the 2005 bankruptcy bill, Congress explicitly protected
private student loans with the same undue hardship standard.
As President, I’ll attack the student debt crisis head on.
My student loan debt
cancellation plan cancels up to $50,000 in debt for 95% of
people who have it, relieving a massive burden on families and boosting our economy.
But for people who may still have debt, my bankruptcy reform plan ends the
absurd special treatment of student loans in bankruptcy and makes them
dischargeable just like other consumer debts.
Letting People Protect Their Homes and Cars in Bankruptcy
My plan also makes it easier for people to protect their
homes and cars in bankruptcy so they can start from a better foundation as they
try to rebuild their financial lives.
My plans also permits people to modify their mortgages in
bankruptcy — something that is generally prohibited by law. The restriction on
mortgage modifications in bankruptcy — even though other types of debts can be
renegotiated in bankruptcy — can hurt both bankruptcy filers and mortgage
lenders. Studies have found that the existing restriction on
modifications has not led to a lasting reduction in mortgage
rates. My plan ends this harmful limitation.
My plan further encourages win-win mortgage modifications
by creating a streamlined, standardized mortgage modification option in
The 2008 financial crisis resulted in an unprecedented wave
of mortgage foreclosures, with nearly 8 million foreclosures completed
in the decade starting in 2007. While not all of these foreclosures could have
been prevented, there were many foreclosures that made no sense. In these
cases, the lender and borrower should have been able to agree to a win-win
modification. Yet these common sense deals weren’t happening.
Bankruptcy does not currently provide a solution for this
problem. My plan does. As part of the menu of options available to a bankruptcy
filer, it offers a special streamlined pre-packaged mortgage bankruptcy
procedure that will allow struggling homeowners to get a statutorily defined
mortgage modification. Under this procedure, if a foreclosure has started, and
the homeowner certifies that she has attempted to negotiate a modification in
good faith, she could seek an automatic modification of the mortgage debt to
the market value of the property, with interest rates reduced to achieve a
sustainable debt-to-income ratio.
The homeowner benefits by receiving a sustainable mortgage.
The lender benefits from a modification that produces significantly better
recovery than foreclosure. The neighborhood also benefits by avoiding a nearby
foreclosure. This commonsense proposal should not only be win-win, but the
possibility of a mortgage modification in bankruptcy should encourage more
negotiated modifications outside of bankruptcy.
Finally, my plan will help address so-called “zombie”
mortgages. Mortgage lenders sometimes start, but do not complete, foreclosures
to avoid assuming liability for property taxes and code violations on the
mortgaged property. When the homeowner has vacated the property, the result is
a “zombie” title situation, in which the homeowner remains liable for taxes and
code violations but does not have use of the property. My plan uses bankruptcy
law to “slay” these zombie mortgages by enabling a homeowner who is no longer
in residence to force the lender to complete the foreclosure or otherwise take
title to the property and pay its ongoing costs. This will enable families to
move on with their lives and get a fresh start without the overhang of
liability for a former property they no longer live in. It will also help
communities by reducing the number of abandoned and derelict properties.
My plan goes beyond protecting homes to offering more fair
protection for people’s cars too. For over one-third of bankruptcy
filers, cars represent their most important asset. For these
struggling Americans, the family car is the principal resource that
bankruptcy’s safety net is protecting. And access to a car is often a
requirement for commuting to a job, getting children to child
care, and starting to rebuild finances.
As part of the 2005 bankruptcy bill, Congress made it more
difficult for Chapter 13 bankruptcy filers to keep their cars.
Under prior law, a debtor could keep their car by paying the lender the fair
market value of the car over a reasonable time. But the 2005 bill changed the
law so that families who want to keep their cars often repay more than the fair
market value of the car; they must pay the full amount of their original car
loan, regardless of the true worth of the vehicle.
Families should not have to pay more than the car is
actually worth to keep it. That’s why my plan repeals the 2005 bankruptcy bill
requirement, makes it easier for bankruptcy filers to keep their cars, and
ensures that their fresh start includes the ability to get to work, to school,
and to the doctor.
Addressing Racial and Gender Disparities in the
Bankruptcy doesn’t affect all
people equally — it mirrors the systemic inequalities in our economy. Women and people of color are more likely to file for bankruptcy, which is
in part a reflection of wealth and income disparities. The situation is especially dire
for middle-class families: my
research found that Black middle class families are three times more likely to
file for bankruptcy, and Latinx families are twice as likely, than white
families. The persistent wealth gap in America means that families of color
have far less wealth than white families on average — and at the same time, families of color are far
more likely to be abused by
predatory lending practices. The outcomes in our current bankruptcy system
aren’t equal, either. Black Americans appear to be much more likely to file for
bankruptcy under Chapter 13, a
costlier and more burdensome form of bankruptcy that requires people to make
several years of payments before getting their debts wiped out — and leaves many in an even worse
position as they struggle to
make these payments. The data suggests Black filers are more likely to have
their cases dismissed, too: people who live in majority Black zip codes are more than
twice as likely to have their cases thrown out as those living in majority white areas.I raised
the alarm on the disparate effects of bankruptcy during the years-long debate
over bankruptcy reform. I called out racial disparities in the economic security of middle-class
families filing for bankruptcy. I published articles showing that bankruptcy reform is a
women’s issue, and that women — in
fact, more women than would graduate from four-year colleges or file for
divorce — would be most affected by the changes Congress was considering.The
changes I’ve outlined above — like the new single entry point system that
eliminates the steering of Black bankruptcy filers into Chapter 13, the new
homestead exemption, and the elimination of the means test — will help address
some of these shameful racial and gender inequities in the bankruptcy system.
But my plan takes additional steps as well: Local
fines. Under current law, people who file for bankruptcy are generally not able
to discharge local government fines. Although some of these fines may have an
important governmental function, many operate as a regressive form of revenue
targeting lower-income Black communities in particular for truly minor offenses. My plan eliminates the
special privilege for local fines, with an exception for fines related to
death, personal bodily injury, or other egregious behavior that threatened
public safety.Civil Rights Debts. While current law prevents people from
discharging local fines, it permits discharging debts resulting from civil rights violations. That is unacceptable, especially as police brutality
and the shooting of unarmed Black children and adults in particular remain
serious problems in our country. My plan changes the law so it’s clear that
individuals cannot get relief from debts arising from the commission of civil
rights violations such as police brutality.Improved data collection and audits.
When individuals file bankruptcy petitions, they are obliged to make a long
list of disclosures — but not their race, gender, or age. Although extensive data collection efforts by
academics helped bring to light the differential experiences of filers of color, women, and older Americans, we can continue to improve upon our bankruptcy
system if we collect this information systematically. That’s why my plan
invites bankruptcy filers to provide their racial identification, gender, and
age if they choose to.
A simpler single portal into the personal bankruptcy system
and replacing many line-item categories with a lump-sum personal property
exemption, separate from the homestead exemption, will help align those values.
The lump-sum personal property exemption would be provided by household,
adjusted by the number of dependents, rather than by number of bankruptcy
filers in the household, to prevent under-protecting a single parent with
In addition, my plan adds extra protections for alimony,
child support income, the child tax credit, and the Earned Income Tax Credit
(EITC), ensuring that people (especially single mothers) will be able to
provide for their families and get back on the path to financial security.
These sources of income and assets traceable to them would be exempt
Closing Loopholes that Benefit the Wealthy and Cracking
Down on Big Corporations
While the current bankruptcy system imposes all sorts of
obstacles for working families, it includes loopholes that benefit wealthy
individuals filing for bankruptcy and failed to hold big companies accountable
when they break the law. My plan closes these loopholes and imposes more
accountability so that our system is more fair.
Loopholes benefiting wealthy individuals. In certain states
like Delaware, wealthy individuals can file for bankruptcy and get debt relief
while shielding their assets by placing them in trusts for their own benefit.
This is known as the “Millionaire’s Loophole.”
As part of the 2005 bankruptcy legislation, Congress pretended to close the
Millionaire’s Loophole, while rejecting legislation that actually
would have shut it down. My plan stitches up the Millionaire’s Loophole once
and for all by ensuring that assets in self-settled trusts and revocable trusts
are not exempt from creditors’ claims in bankruptcy. My plan also closes off
the related “spendthrift clause”
loophole that allows the beneficiaries of “dynasty trusts” to
avoid paying their creditors (while maintaining such protection for bona fide
qualified disability trusts).
I am also committed to giving bankruptcy courts more tools
to address fraud. For example, under current law,
a bankruptcy filer who lied and submitted fraudulent documents regarding one of
his assets is entitled to an exemption even when it was shown that he lied. My
plan closes this enormous loophole so that courts can deny an exemption in an
asset that the filer has concealed or lied about.
My plan also strengthens the so-called “fraudulent transfer”
law. Fraudulent transfer law allows creditors to claw back certain transfers
the bankruptcy filer made with the intent to hinder, delay, or defraud
creditors. For example, fraudulent transfer law would apply to a deadbeat
ex-spouse who has transferred money into a trust to avoid paying alimony. The
federal statute of limitations for actual fraudulent transfers is shorter than
that of some states, so my plan extends the federal statute of limitations to
match the longest state statute of limitations. Additionally, to discourage
third parties from receiving these fraudulent transfers, my plan updates
federal criminal law to add penalties for knowingly engaging in, aiding and
abetting, or receiving an actual fraudulent transfer.
Accountability for creditors. My plan also cracks down on
big companies that break the law or otherwise unfairly squeeze families in the
bankruptcy process. For example, some companies will use the bankruptcy process
to collect debts even as they have a track record of violating consumer
financial protection laws. By disallowing debts of creditors that harm debtors
by violating consumer financial laws, my plan strengthens the deterrent effect
of our consumer protection laws and helps ensure better compliance of creditors
and their agents, such as mortgage servicers and debt collectors.
My plan also stops companies from collecting on debts that
are no longer valid. In bankruptcy, many debt collectors attempt to
collect on expired debts, whose statute of limitations has run, by
filing claims to be paid and hoping that no one will notice that they no longer
have the right to collect the debt. This practice is harmful to everyone
involved, including other creditors with legally enforceable claims. The Supreme Court wrongly
ruled that seeking to get paid on expired debts does not
violate the Fair Debt Collection Practices Act, so it’s up to Congress to fix
the law now. That’s what my plan does, by making clear that collection of an
expired debt is a violation of the law.
And my plan allows individuals to file to sue to deter
creditors from seeking to collect on debts that were already discharged in an
earlier bankruptcy. Too often, creditors, particularly companies that buy debts for
pennies on the dollar, attempt to collect debts that have been discharged in an
earlier bankruptcy. For decades this has been illegal, but the practice has
persisted because the courts have limited remedies available to address this
misconduct. As recommended by the American
Bankruptcy Institute’s Commission on Consumer Bankruptcy, my plan
gives bankruptcy filers the right to file a lawsuit and have the court order
compensation for the harms caused by creditors who violate this law. My plan
also gives courts the power to impose effective sanctions when they catch this
abuse on their own.
Finally, consumer loans often contain provisions requiring
the borrower to resolve any disputes outside of court, through arbitration. My
plan ensures that creditors cannot continue their efforts to go after consumers
during the bankruptcy process through mandatory arbitration as part of my larger fight against
unfair forced arbitration clauses. Disputes between bankruptcy filers and
creditors should be resolved openly and transparently as part of the bankruptcy
process in court, not in forced arbitration proceedings behind closed doors.
The Office of Management and Budget has issued a Statement of Administration Policy regarding HR 1090, the “Retail Investor Protection Act” sponsored by Rep. Wagner (R-MO) and 34 co-sponsors, because as is typical of such bills that have come from the Republican Majority, their title is the very opposite of their actual intent:
The Administration strongly opposes H.R. 1090 because the bill would derail an important Department of Labor rulemaking critical to protecting Americans’ hard-earned savings and preserving their retirement security.
H.R. 1090 prohibits Labor from issuing a rule to protect investors until the Securities and Exchange Commission (SEC) acts. It also impinges on the SEC’s ability to move forward with its own rulemaking by requiring the SEC to take the misguided step of providing definitive findings before promulgating a rule.
Further, the bill ignores the fact that significant study has already been conducted by both agencies and that Labor has had extensive engagement with the public, industry, and numerous stakeholders in its rulemaking process. This includes more than 140 days of public comment period, four days of public hearings, and approximately 100 meetings with stakeholders after the proposal was published in April. Moreover, Labor and the SEC are already working closely to ensure the smooth operation of the proposed safeguards, and this legislation would hamper effective coordination between the two agencies.
Under existing, outdated rules, savers cannot count on receiving the unbiased advice that they need and expect. This bill would effectively block action to protect working and middle-class families from the harmful conflicts of interest that lead to biased advice. The Council of Economic Advisers estimates that these conflicts cost savers $17 billion every year.
The Administration is committed to ensuring that American workers and retirees are able to receive advice about how to invest their money in safe, secure, and transparent financial products that are free from harmful conflicts of interest. Labor’s ongoing rulemaking is designed to protect the retirement savings of millions of workers and retirees by ensuring that paid advisors and other entities do not place their own financial interests over those of their customers. This legislation puts a roadblock in the way of preventing such harmful conflicts, which hurts businesses, consumers, and retirees and their families.
If the President were presented with H.R. 1090, his senior advisors would recommend that he veto the bill.