The landmark Dodd-Frank Act of 2010 ("Dodd-Frank") transforms the regulation of consumer credit in the United States. Many of its changes have been high-profile, attracting considerable media and scholarly attention, most notably the establishment of the Consumer Financial Protection Bureau ("CFPB"). Even specific consumer reforms, such as a so-called "plain vanilla" proposal, drew hot debate and lobbying firepower. But when the dust settled, one profoundly transformative innovation that did not garner the same outrage as plain vanilla or the CFPB did get into the law: imposing upon lenders a duty to assure a borrower's ability to repay. Ensuring a borrower's ability to repay is not an entirely unprecedented legal concept, to be sure, but its wholesale embrace by the Dodd-Frank represents a sea change in U.S. consumer credit market regulation. This Article does three things regarding the new duty to assess a consumer's ability to repay mortgage loans. First, it traces the multifaceted pedigree of this requirement by looking at fledgling strands in U.S. consumer law, as well as other areas such as securities law; it also considers its more robust embrace in foreign systems. Second, it offers conjecture regarding how this broadly stated principle might be put into practice by the federal regulators. Finally, it provides a brief normative comment, siding with the supporters of this new obligation on lenders.
Pottow, John A. E. "Ability to Pay." Berkeley Bus. L. J. 8, no. 2 (2011): 175-208.