CFPB Fall 2015 rulemaking agenda includes delays for payday loan and other rules

by Ballard Spahr LLP
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The CFPB released its Fall 2015 rulemaking agenda last Friday. The agenda sets the following timetables for key rulemaking initiatives:

Arbitration. The Fall 2015 agenda gives a December 2015 date for further prerule activities. We assume that date reflects the December 19 due date for the report to be issued by the CFPB’s arbitration Small Business Regulatory Enforcement Fairness Act (SBREFA) panel. The panel was convened on October 20, 2015 to review the proposals the CFPB is considering for regulating the use of arbitration agreements in certain consumer financial services contracts. The panel’s report will not become public until the CFPB issues its proposed rule, which we expect will not occur before spring 2016.

Payday and deposit advance loans.  In April 2015, the CFPB convened a SBREFA panel to review the proposals it is considering for payday (and other small-dollar, high-rate) loans. The Fall 2015 agenda estimates the issuance of a Notice of Proposed Rulemaking in February 2016 “after additional outreach and analysis.” The Spring 2015 agenda had estimated that a proposed rule would be issued “later in 2015.”

Prepaid financial products.  In November 2014, the CFPB issued a proposed rule for prepaid financial products, including general-purpose reloadable prepaid cards and certain digital and mobile wallets. The Fall 2015 agenda estimates the issuance of a final rule in March 2016. The Spring 2015 agenda had estimated that a proposed rule would be issued in January 2016.

Overdrafts. The CFPB issued a June 2013 white paper and a July 2014 report on checking account overdraft services. In the Fall 2015 agenda, the CFPB states that it “is continuing to engage in additional research and has begun consumer testing initiatives related to the opt-in process.” Although the Spring 2015 agenda had estimated an October 2015 date for further prerule activities, the new agenda moves that date to January 2016.

Debt collection.  In November 2013, the CFPB issued an Advance Notice of Proposed Rulemaking concerning debt collection.  In the Fall 2015 agenda, the CFPB states that “it is in the process of analyzing responses to a survey seeking information from consumers about their experiences with debt collectors and is engaged in qualitative testing to determine what information would be useful for consumers to have about debt collection and how that information should be provided to them.” The agenda estimates that further prerule activities, which are expected to involve the convening of a SBREFA panel, will occur in February 2016. The CFPB had estimated in its Spring 2015 agenda that further prerule activities would occur in December 2015.

Larger participants. In its Spring 2015 agenda, the CFPB confirmed that is considering a “larger participant” rule for “consumer installment loans and vehicle title loans.” In the new agenda, the CFPB states that it is “also considering whether rules to require registration of these or other non-depository lenders would facilitate supervision, as has been suggested to the Bureau by both consumer advocates and industry groups.” (Pursuant to Dodd-Frank Section 1022, the CFPB is authorized to “prescribe rules regarding registration requirements applicable to a covered person, other than an insured depository institution, insured credit union, or related person.”) While the prior agenda estimated a January 2016 date for prerule activities, the new agenda estimates a September 2016 date.

Small business lending data.  Dodd-Frank Section 1071 amended the ECOA to require financial institutions to collect and maintain certain data in connection with credit applications made by women- or minority-owned businesses and small businesses. Such data include the race, sex, and ethnicity of the principal owners of the business. In the Fall 2015 agenda, the CFPB estimates a September 2016 date for prerule activities. (We recently blogged about the CFPB’s efforts to hire an Assistant Director to lead the interdisciplinary team that the CFPB is in the process of standing up to implement Section 1071.)

Mortgage rules. In November 2014, the CFPB issued a proposal to amend various provisions of its mortgage servicing rules. The new agenda estimates issuance of a final rule in June 2016. The previous agenda had estimated a March 2016 date. The new agenda also estimates an April 2016 date for issuance of a proposed interagency rule to implement Dodd-Frank amendments to FIRREA concerning appraisals.

Student Loan Servicing.  For the first time, the CFPB has included student loan servicing in its rulemaking agenda and designated it a “long-term action.” In the new agenda, the CFPB states that it “will evaluate possible policy responses, including potential rulemaking,” to its September 2015 report on student loan servicing and continued monitoring of the student loan servicing market. It further states that “possible topics for consideration might include specific acts or practices and consumer disclosures.” No estimated date is given for further action.

Consumer reporting. Another topic added for the first time to the CFPB’s rulemaking agenda and designated a “long-term action” is consumer reporting.  In the agenda, the CFPB states that it “continues to monitor the credit reporting market through its supervisory, enforcement, and research efforts” and “will evaluate possible policy responses to issues identified, including potential additional rules or amendments to existing rules governing consumer reporting.” It further states that “potential topics for consideration might include the accuracy of credit reports, including the processes for resolving consumer disputes, or other issues.” No estimated date is given for further action.

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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