On November 20, 2015, the Consumer Financial Protection Bureau (CFPB) released its Fall 2015 rulemaking agenda. The agenda highlights the CFPB's focus and direction in the coming year, and reflects many of the themes in its Fall 2015 Supervisory Highlights. It also generally notes delays in the Bureau's rulemaking initiatives from the estimates in the Spring 2015 agenda. The agenda also highlights two new "long-term rulemaking efforts" in credit reporting and student loan servicing.
Anticipated Final Rules:
Mortgage servicing – The CFPB is working to finalize enhanced loss mitigation requirements and compliance with certain rules when the borrower is a potential or confirmed successor in interest or is in bankruptcy.
Prepaid accounts – The CFPB has proposed prepaid card protections that are similar to those for debit and payroll cards, as well as protections to prepaid accounts that access overdraft services or offer certain credit features. The Bureau expects to issue the final rule in March 2016. The Spring 2015 agenda had previously estimated that a final rule would be issued in January 2016.
Implementation of the HMDA rule, Know Before You Owe disclosures, and other mortgage rules – The CFPB is preparing a compliance guide and other support materials and programs to prepare for implementation of various parts of the rule starting in 2017 and 2018.
Forthcoming Proposals:
Arbitration – The CFPB is considering whether to propose rules that would prevent companies from including class action waivers in arbitration agreements. The CFPB is also considering whether to propose requiring that arbitration filings and awards be submitted to the Bureau.
Payday, auto title, and similar lending products – The Bureau states that it is concerned that lenders are offering these products without assessing the consumer's ability to repay, thereby forcing consumers to choose between re-borrowing, defaulting, or falling behind on other obligations. As part of its pre-rulemaking process, the CFPB issued a preliminary proposal as part of the Small Business Review process. The CFPB estimates that it will issue a proposed rule in February 2016 "after additional outreach and analysis."
Overdraft – The CFPB notes that its consumer protection concerns include consumer consent to overdraft coverage for certain electronic transactions, overdraft coverage limits, transaction posting order practices, overdraft and insufficient funds fee structures, and involuntary account closures. The Bureau is also conducting additional research and has begun consumer testing initiatives related to the opt-in process. The agenda indicates that the pre-rulemaking process for overdraft has been delayed—the Spring 2015 agenda had estimated an October 2015 date for further pre-rule activities; the new agenda moves that date to January 2016.
Debt collection – The Bureau is engaged in consumer testing initiatives to determine what information would be useful for consumers to have about debt collection and their debts and how that information should be provided to them. The Spring 2015 agenda had estimated that further pre-rulemaking activities would occur in December 2015.
Larger participants and non-depository lender registration – The Bureau expects to develop rules to define larger participants in markets for consumer installment loans and vehicle title loans, as well as rules to require registration of lenders in these markets or other non-depository lenders, which would facilitate the Bureau's supervision of such entities. While the prior agenda estimated a January 2016 date for additional activity, the new agenda estimates that further pre-rulemaking activity will not occur until September 2016.
Women-owned, minority-owned, and small businesses data collection – The Dodd-Frank Act requires the CFPB to develop rules that require financial institutions to report information about lending to women-owned, minority-owned, and small businesses. The CFPB notes that the first stage of its efforts under this statutory mandate "will focus on outreach and research."
Long-term Rulemaking Efforts:
The CFPB continues to evaluate rulemakings in credit reporting and student loan servicing. For credit reporting, the CFPB indicates that potential topics for consideration might include the accuracy of credit reports, including the processes for resolving consumer disputes, or other issues. For student loan servicing, possible topics for consideration might include specific acts or practices and consumer disclosures. The inclusion of these issues in the agenda signals the beginning of CFPB rulemaking attention in these areas.
Industry participants are encourages to monitor the Bureau's rulemaking activity and look for opportunities to engage with the CFPB on these topics. For more information on the CFPB's ongoing rulemaking activity, please contact Venable's CFPB Task Force.