IMPROVIDENT EXTENSION OF CREDIT AS AN UNCONSCIONABLE CONTRACT

• NCJ Number: 43745
• Journal: Drake Law Review Volume: 23 Issue: 2 Dated: (JANUARY 1974) Pages: 225-326
• Author(s): R L HERSBERGEN
• Date Published: 1974
• Length: 102 pages
• Corporate Author: Drake University
• Publication Format: Article
• Publication Type: Report (Study/Research)
• Language: English
• Country: United States of America

Annotation

REASONS FOR AND CONSEQUENCES OF CONSUMER DEFAULT IN CREDIT TRANSACTIONS ARE EXAMINED, LEGAL AND ECONOMIC SAFEGUARDS AGAINST DEFAULT ARE ASSESSED, AND AN APPROACH TO THE MATTER OF UNCONSCIONABLE CONTRACTS IS PROPOSED.

Abstract

AN OVERVIEW OF THE DEBTOR IN DEFAULT INCLUDES DISCUSSIONS OF THE CHARACTERISTICS AND BACKGROUNDS OF DEFAULTERS, THEIR MOTIVES FOR ENTERING INTO INSTALLMENT CREDIT AGREEMENTS, THEIR REASONS FOR DEFAULTING, THE LEGAL CONSEQUENCES OF DEFAULT, AND THE EFFECTS OF THOSE CONSEQUENCES ON THE PERSONAL LIVES OF DEFAULTERS. STUDIES OF CONSUMER DEFAULTS AND DEFICIENCY JUDGMENTS ON AUTOMOBILE CREDIT PURCHASES IN DES MOINES, DETROIT, NEW YORK, CHICAGO, WASHINGTON, D.C., SAN DIEGO, AND ELSEWHERE ARE CITED. IT IS CONCLUDED THAT MOST INSTANCES OF CONSUMER DEFAULT ARE THE RESULT OF IMPROVIDENT EXTENSION OF CREDIT, FROM THE STANDPOINT OF BOTH DEBTOR AND CREDITOR. THE ROLE OF CREDIT INFORMATION VIS-A-VIS THE DEBTOR IN DEFAULT IS ANALYZED. THE THEORETICAL USEFULNESS OF CREDIT INFORMATION, CREDITOR ACCESS TO CREDIT INFORMATION, THE CONSUMER CREDIT FILE, AND NONUSE AND MISUSE OF CREDIT INFORMATION ARE CONSIDERED. THE RECOMMENDATIONS OF THE NATIONAL COMMISSION ON CONSUMER FINANCE WITH REGARD TO ABOLITION OF THE HOLDER IN DUE COURSE DOCTRINE AND THE DEFICIENCY JUDGMENT ARE DISCUSSED. IT IS POINTED OUT THAT THE COMMISSION TAKES THE VIEW OF THE DRAFTERS OF THE UCCC THAT IMPROVIDENT EXTENSION OF CREDIT, I.E., THE GRANTING OF CREDIT WITH NO REASONABLE EXPECTATION THAT THE DEBTOR WILL BE ABLE TO REPAY, IS UNCONSCIONABLE. THE ADOPTION OF AN AMENDED VERSION OF UCCC SECTION 5.108 WITH REGARD TO UNCONSCIONABILITY IN CONSUMER CREDIT, LEASE, AND LOAN AGREEMENTS IS PROPOSED. THE PROPOSED VERSION IS INTENDED TO PROVIDE THE COURTS WITH GREATER FLEXIBILITY IN CONSIDERING THE MISUSE AND NONUSE OF CREDIT INFORMATION AND IN AVOIDING ALL UNCONSCIONABLE RESULTS. IMPLICATIONS OF THE PROPOSAL FOR THE CONSUMER AND FOR THE CREDITOR ARE DISCUSSED. SUPPORTING DATA DOCUMENTATION ARE PROVIDED.