It is now reasonably well understood that unsecured credit such as credit card debt poses a common-pool problem. Since it is not secured by any collateral and since recoveries will be allocated pro rata under bankruptcy, each credit card issuer is motivated to try to collect from the “common pool” — and the attempt to collect by one issuer may pose a negative externality to other issuers. When a consumer becomes financially distressed, each credit card lender has an incentive to try to become the first to collect. For example, a lender may engage in aggressive collection efforts even if they may result in the consumer seeking protection under bankruptcy law: the benefits of collection accrue to this lender alone, while the consequences of a bankruptcy filing are distributed over all credit card lenders and other creditors.
This paper attempts to explore the recent proliferation of penalty interest rates and universal default clauses in credit card contracts. By a penalty interest rate, we mean the following: The fairly standard credit card offering in 2008 includes an introductory interest rate on new purchases of 0% for the first several billing periods, followed by a post-introductory interest rate on new purchases of 9.99% to 15.99%. However, if payment is received late once during the introductory period, the interest rate reverts to the post-introductory APR; and if payment is received late twice within any 12 billing periods, the interest rate reverts to a “default APR” of typically 23.9% to 29.99%. In addition to the increase in interest rate, the cardholder generally is also assessed a late payment fee of typically $39.