Director Cordray’s Statements Offer Insight Into CFPB Activities

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During a September 12 House Financial Services Committee hearing and in a recent interview published in the Washington Post, CFPB Director Richard Cordray made a number of statements that shed light on a wide range of topics related to the agency’s thinking and priorities. As discussed in more detail below, Director Cordray and House committee members touched on, among other things, the status of the CFPB’s small business lending data and HMDA rules, efforts to implement the CFPB’s mortgage rules (in particular the QM rule), small-dollar lending, and the CFPB’s collection and use of consumer information.

In addition, in his interview with the Washington Post, Director Cordray confirmed that the CFPB will be writing rules that apply the Electronic Fund Transfer Act (EFTA) to prepaid cards and govern debt collection practices. He also promised additional enforcement actions against debt collectors and “activity” on payday lending.

Highlights from House Hearing:

  • Mortgage Rule/QM Implementation and Impact: A number of committee members from both sides of the aisle raised concerns about the impact of the CFPB’s mortgage rules, particularly its ATR/QM rule. Members are concerned with the complexity and regulatory burden of the rules, and that the ATR/QM rule is drawn too narrowly and will limit credit availability. The concerns of community bankers were again front and center—members stated that the rules unnecessarily burden community bankers and limit their ability to make loans, which may, in turn, force them to exit the mortgage market. Mr. Cordray described the various changes to the ATR/QM rule designed to accommodate community banks, reviewed the CFPB’s implementation process and resources, and pledged to continue to work to inform bankers of those accommodations and resources. More broadly, however, he stated that most institutions have told the CFPB that they will be in substantial compliance when the rules take effect in January 2014 and he did not indicate any intention to delay the effective dates of any of the mortgage rules.

    Rep. Huizenga (R-MI) focused on the ATR/QM rules’ inclusion of affiliate charges in the 3% points and fees cap and asked if the CFPB would support changing it. Director Cordray stated that the CFPB is “happy to think further” about the issue and can provide “technical assistance,” but that the rule reflects congressional intent and any substantive change would require legislation. He also acknowledged discussions with the Representative’s staff about whether title insurance should be treated differently because it is regulated.

  • Cumulative Regulatory Burden: Several members raised a broader concern about the cumulative burden of regulations on financial institutions. Rep. Capito (R-WV) asked specifically about the CFPB’s regulations streamlining initiative and for evidence that it actually is moving forward. Mr. Cordray cited the CFPB’s work to eliminate an ATM notice requirement, which was removed by legislation before the CFPB finalized its effort, and explained that the CFPB now is focused on limiting burdens related to Gramm-Leach-Bliley Act privacy notices. He did not identify any other specific efforts to eliminate regulatory burden, but stated generally that the CFPB attempts to address duplicative and unnecessarily burdensome provisions in all of its rulemakings.
  • TILA/RESPA Integration Rule: Two members – Reps. Miller (R-CA) and Perlmutter (D-CO) – asked about an aspect of the CFPB’s proposed TILA-RESPA integrated disclosure that would identify title insurance as “optional.” The members expressed concern that identifying it as such would not serve consumers. Mr. Cordray was not familiar with the issue, but pledged to revisit it. He also confirmed, as expected, that the final TILA-RESPA rule will be published this fall. (The CFPB’s recent rulemaking agenda stated more specifically October 2013.) Mr. Cordray promised an adequate implementation period.
  • Small Business Lending and HMDA Rules: Rep. Velasquez (D-NY), who also serves as ranking member of the Small Business Committee, asked about the status of a rule to implement Dodd-Frank Act amendments to ECOA that require financial institutions to report information concerning credit applications made by women- or minority-owned businesses and small businesses. Mr. Cordray stated that the Bureau understands the importance of this data but was proceeding carefully because the rulemaking is outside the Bureau’s “comfort zone,” which is addressing consumer issues. In particular, he noted the Bureau was seeking to work with agencies that are more knowledgeable in this area, such as the Small Business Administration. However, he added that the CFPB internally has begun developing a rulemaking to implement changes to HMDA data collection. He explained that the CFPB expects that the HMDA rulemaking will inform its small business lending rule effort, and may overlap in parts.
  • Small Dollar or “Payday” Lending: Small-dollar lending, particularly through the Internet, remains an active topic for both Congress and the CFPB. Several members raised a general concern with the growth of online lending and potential consumer protection challenges, while others accused the CFPB and other federal authorities of attempting to eliminate the practice altogether. Director Cordray recited the supervision and enforcement challenges associated with online lending and stated that it is a “subject of some considerable scrutiny right now, by [the CFPB] and by others.” He declined to comment more specifically on the CFPB’s involvement in reported efforts by the DOJ, the FDIC, and state authorities with regard to online lenders and the banks that process payments for them. Mr. Cordray later added that the CFPB considers the challenges of “offshore” lending to differ from those presented by Native American lenders. While both are difficult for state authorities to address, the CFPB does not consider tribal lenders to be “offshore” and believes that it is well established in federal law that the federal government can regulate tribal businesses and activities affiliated with tribes.

    Rep. Luetkemeyer (R-MO) mentioned a bill he first introduced last year to address some of these issues by creating a national charter for qualified non-depository creditors. Mr. Cordray responded that he did not have a position on the proposal at this time. Last year, the proposal met opposition from the OCC, state attorneys general, and state bank regulators.

    In response to Rep. Meeks (D-NY), who expressed concern about borrowers who need access to small dollar loans, Mr. Cordray stated that he believes financial institutions could make small dollar loans cheaply.

  • Supervision and Enforcement: Rep. Neugebauer (R-TX) and others inquired about the CFPB’s examination and enforcement programs. Mr. Neugebauer asked about the CFPB’s application of the “abusive” prong in the Dodd-Frank Act “UDAAP” standard and about the scope of the CFPB’s information requests. With regard to “abusive practices,” Director Cordray stated that examiners are looking only at practices that meet the statutory definition. He explained that he has difficulty with the abusive standard, and that, in his view, something that is abusive is likely also unfair and deceptive. He promised that the CFPB will “tread carefully” and will not be “wild and overly aggressive” in its application of the abusive standard. With regard to information requests, Mr. Cordray agreed that the CFPB’s practice should be to only sample data and information in connection with exams, but added that in enforcement situations the CFPB may need much more data. Some members also criticized the salaries paid to CFPB staff, while others complained about the lack of experience of some examiners.
  • CFPB Data Collection: Numerous members assailed Mr. Cordray with regard to the CFPB’s collection and use of consumer information, and the CFPB’s alleged failure to respond to information requests submitted by Republican members. Mr. Cordray asserted that the CFPB’s data collection and use is legal and necessary. He objected to the characterization that the CFPB has delayed its response to the committee, and indicated that he will be back to testify on this topic in the coming weeks.

Excerpts from Washington Post Interview:
(For the original Washington Post interview, please click here.)

  • Debt Collection:  “We will be undertaking rulemaking in the debt-collection area. The work on that will get started later this fall. Debt collection is an area that is in need of revision and updating. It’s a very problematic area, one of the most complained-about areas by the public. It’s only gotten worse in the wake of the financial meltdown because so many people owe debt. An estimated 30 million Americans have a debt collector chasing after them now, so it’s a very salient issue now for the public. The Fair Debt Collection Act was passed in 1977, and there were never any provisions for rules to be written under it, so it hasn’t kept pace with the times. It’s now 35 years old, and there is room for us to update the act to take account of various court decisions, changes in the industry, changes among the consumer public to improve coverage so people are protected and treated fairly. That’s an important area for us and an area where we’ve already had some activity moving toward rulemaking. We’re also examining debt collectors. We’ve done some enforcement actions involving debt collection, and there will be more. We’ve put out a bulletin on first-party debt collectors, making clear that they’re also covered under existing law. And we’re starting to provide some tools for consumers to use, such as the template letters they can use to try and avoid undue harassment and abuse from debt collectors.”
  • Small Dollar or “Payday” Lending:  “We put out the white paper on payday lending and the deposit advance products in late spring. That is leading us toward policy work in the area. There is some follow-up research work we’re doing that has been underway since the first paper came out. But there will be activity in this area in the near future. The issue coming out recently of online payday lenders who are relying on financial banks to be the mechanism for financing and collecting the money really has been interesting. Frankly, the work in that area involves coordination with both federal regulators and state officials, and it can even be international, with some online lenders originating from outside of the United States now. It’s an area where we’ve been building partnerships as well as thinking about the policy work that we need to do, and we’re making progress.” (See our prior post on the CFPB payday lending white paper.)
  • Prepaid Cards:  “The fact that prepaid cards are not covered by ­consumer-protection laws at the moment is a compelling need for us to write regulations to get them covered. We’re moving forward to write rules to make sure they are protected under [the Electronic Fund Transfer Act (EFTA)]. It’s a real front-burner issue for us.” (Note that on September 12, the CFPB also issued a bulletin on the application of EFTA to payroll cards.)
  • Ability-to-Pay Requirements for Non-Mortgage Products “It’s something that we are thinking about. Some of the most interesting issues for me have been the ones where we start to see some of the same philosophical issues extending across different markets, but potentially in different ways. So ability to pay in the mortgage market is arguable at its zenith because it’s a huge dollar transaction. You can justify more demands on the lenders and the borrower to make sure that transaction works. In the credit card context, under the [Credit Card Accountability Responsibility and Disclosure Act of 2009], there is an ability-to-repay provision in there. But it operates in a somewhat different way for credit cards than it should for mortgages. They’re different kinds of transactions, different size, different scope. You can get in and out of credit cards in a hurry. Not so easy to get in and out of mortgages. How it applies to smaller-dollar lending is a further differentiation. It’s something that we’re having to think about. The general principle, though, of ability to repay as the basis for making loans is just common sense. The lender should care about whether the borrower can repay because they’re the ones lending the money. They’re the ones at risk. The market is no longer so straightforward. With mortgages, for example, the ability to repay was arguably lost if you could sell into the secondary market. There are a number of consumer groups that have been pushing [the ability-to-repay model] as a broad principle across markets. There is quite a bit to what they’re saying. How it would apply from one market to another is worth further analysis, and that’s something we’re engaged in analyzing.”
  • Supervision “We have to institute our supervision program for financial institutions that are used to being regulated, but not necessarily used to being regulated with a focus on consumer protection. It’s an adjustment for them. But in the non-bank sphere, they’re often not used to being regulated at all, or only on the state level. In that area, there has been a real shift toward more of a compliance mentality. And our being on the scene and doing this work has caused that shift.”
  • Safety and Soundness:  “It’s the right perspective that an institution needs to merge the short-term and long-term thinking about its business model. It’s not a long-term business model to take advantage of your consumers in ways that are not sustainable. That’s what brings safety and soundness regulation and consumer protection regulation back together and really makes them harmonious.

Published In: General Business Updates, Consumer Protection Updates, Finance & Banking Updates, Residential Real Estate Updates

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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