Our thinking

Consumer financial services at a crossroads

What's inside

Key developments, possible impacts

Overview

During 2017 and early 2018, the consumer financial services (CFS) regulatory landscape has undergone seismic shifts.

As the Trump Administration, Congress and the courts, in varying ways and to various degrees, rethink and reshape the Consumer Financial Protection Bureau’s (CFPB or Bureau) structure, agenda and approach, companies—notwithstanding the overall deregulatory trend of such activity—likely will experience continued uncertainty regarding the CFS supervisory and enforcement landscape. To help institutions navigate today’s rapidly evolving regulatory environment, we present a concise retrospective and guide for what likely lies ahead. Amidst so much change, and in an environment redolent with deregulatory rhetoric, it is important to take an intermediate and even long view toward compliance as the ramifications of many decisions made today might not become apparent for years. Thus, as always, a commitment to best practices, a strong compliance culture, and a firm grasp on enduring requirements will serve CFS market participants well.

The shifting landscape

Despite a contentious legal battle over the CFPB’s leadership, Acting Director Mick Mulvaney has pressed forward with significant changes to the Bureau’s organization and priorities. For the time being, it appears that the Bureau has recused itself from certain aspects of overseeing the CFS industry, a stark departure from former Director Richard Cordray’s approach.

In less than six months, the new leadership has announced several political appointments to key CFPB positions, and issued no fewer than ten requests for information (RFIs), asking the public to weigh in on nearly every aspect of the Bureau—enforcement, supervision, rulemaking, market monitoring and education activities, among others. In addition to a comprehensive review of all CFPB rules, the Bureau has specifically focused on rolling back requirements under its payday, prepaid card and HMDA-related rules. 

Congress too has joined the fray, striking down the CFPB’s arbitration rule in November 2017. Bills have been introduced to subject the Bureau to Congressional appropriations—a proposal the Trump Administration adopted in its 2019 budget, which Acting Director Mulvaney also underscored as part of his proposed reforms. Other proposals would reconstitute the Bureau as a multi-member, bipartisan commission.

Separately, as our collective memory of the financial crisis fades and as they have become more accustomed to the CFPB as litigant, some courts appear to be less deferential to the CFPB’s enforcement efforts. Companies and institutions are increasingly challenging the Bureau’s civil and administrative actions, rather than swiftly settling.

The current CFPB leadership has also signaled a new approach to enforcement that includes the use of more traditional legal theories, de-emphasizing the broad and aggressive use of the Bureau’s UDAAP authority as an enforcement tool. Among other actions, the CFPB’s decision to remove its fair lending unit from the supervision and enforcement division, as well as its call for local enforcement of consumer protection laws likely will cause states to increase their enforcement activities. Indeed, several state attorneys general (AGs) have already signaled that they will use their enforcement powers, including their ability under the Dodd-Frank Act to enforce violations of federal CFS laws, with many ready to draw on or otherwise forming special consumer units. Beyond enforcement of law, state AGs, regulators and legislators also seem poised to revisit existing laws and regulations and issue guidance, as appropriate—all in the name of filling any void the CFPB might leave in its wake. Multistate coordination among these players remains possible, if not probable, in many instances.

A note on new technologies

Concurrent federal deregulation and increasing state oversight may pose unique challenges for tech, fintech and regtech companies as well as incumbent financial institutions leveraging new technologies. Although the Bureau’s Project Catalyst was designed and has the potential to balance oversight with the need to foster consumer-friendly innovation, the current CFPB leadership has yet to take a position on whether it will revamp this initiative, and if so how—regardless of how it will otherwise address fintech solutions in the CFS market.

Other federal agencies, including the federal banking regulators, have yet to demonstrate how they will strike this balance and manage tech innovation in the CFS sector. States, meanwhile, may seek to clarify and enforce time-tested laws and regulations, while also possibly offering a multiplicity of differing responses. All CFS market participants using or offering innovative approaches and products are thus encouraged to navigate this shifting landscape carefully by ensuring a sound understanding of new technologies, an ability to manage their risks, and an ability to communicate their risk management approach, when and as appropriate, to regulators.

CFPB structural changes

The appointment of Mick Mulvaney as CFPB Acting Director has led to significant changes to the Bureau’s structure and how it operates. 

stairs

Mortgage origination and servicing

In 2017, the CFPB issued several final rules to clarify, revise, and update the regulatory framework applicable to the home mortgage origination and servicing market.

different kinds of doors

Small-dollar loans

The CFPB has historically focused on how to address so-called "debt traps" associated with payday lending.

US dollar

Student loans

The CFPB has historically focused on both federal and private student loans, with an increasing focus on loan servicing practices.

Pencil Erasers

Auto finance

The CFPB has previously targeted the auto finance industry, with a particular focus on indirect (dealer-arranged) auto lenders and unfair or abusive loan servicing practices.

aerial photography of street roads

Marketplace lending

The CFPB has traditionally not prioritized  marketplace lenders in its supervisory and enforcement efforts. The new CFPB leadership is expected to maintain the status quo and rely on state attorneys general to oversee industry participants.

US dollar bank notes

Payment processing

The CFPB finalized its Prepaid Card rule in October 2017. It remains unclear, however, whether the CFPB’s new leadership will leave the rule intact, or instead seek to further delay or alter the rule’s requirements as part of the Bureau’s ongoing review of CFPB regulations.

credit cards

CFPB structural changes

The appointment of Mick Mulvaney as CFPB Acting Director has led to significant changes to the Bureau’s structure and how it operates. 

Alert
|
5 min read

[W]e need structural and legislative change to the way this place is being run."

I request that Congress make four changes to the law to establish meaningful accountability for the Bureau: (1) [f]und the Bureau through Congressional appropriations; (2) [r]equire legislative approval of major Bureau rules; (3) [e]nsure that the Director answers to the President in the exercise of executive authority; and (4) [c]reate an independent Inspector General for the Bureau."

CFPB Acting Director Mick Mulvaney

Through a series of swift moves, Acting Director Mulvaney has brought in several political appointees to serve in key positions, including as his chief of staff, senior advisors and communications Director. He has also solicited applications for membership on its Consumer Advisory Board and its Credit Union Advisory Council. In addition, Acting Director Mulvaney has announced that the Office of Fair Lending and Equal Opportunity will be transferred from the Division of Supervision, Enforcement & Fair Lending, to the Office of the Director. The Office of Fair Lending and Equal Opportunity will no longer have fair lending supervisory authority, but rather will focus on advocacy, coordination and education. Most recently, Acting Director Mulvaney called for four major reforms to the CFPB: subjecting it to Congressional appropriations; giving the President more oversight of the Bureau; creating a dedicated CFPB inspector general; and subjecting all major new CFPB rules to Congressional approval.

 

Enforcement

According to Acting Director Mulvaney, the CFPB will no longer "push the envelope" and will dial down its previously aggressive enforcement approach. Instead, AGs are expected to take the lead in enforcing consumer financial protection laws locally, while the Bureau generally focuses on supervision and education of consumers as to their financial protection rights. Relying primarily on consumer complaint data, the CFPB will limit its enforcement efforts to quantifiable and unavoidable harm to consumers. In addition, the Bureau will no longer rely on broad UDAAP interpretations as an enforcement tool, nor will it pursue actions under expansive and novel legal theories. The reassignment of the Office of Fair Lending and Equal Opportunity and Mulvaney's decision to tap the CFPB's reserves (instead of requesting funding) also appear to demonstrate a dialing down of the Bureau's enforcement efforts. The new CFPB leadership could use the Bureau's other initiatives, such as Project Catalyst and its No-Action Letter policy, to afford companies regulatory and enforcement relief—though Acting Director Mulvaney has not yet signaled such a move.

 

Rulemaking

According to its new mission statement, the CFPB will now seek to reduce the regulatory burden for CFS-related activities, particularly rules introduced by the previous CFPB leadership under the Bureau's discretionary authority. To that end, the Bureau intends to open new rulemakings to reconsider its payday, prepaid card and HMDA-related rules. The new CFPB leadership may also seek to revisit the Bureau's previous significant rules as part of its five-year "look-back" assessments mandated by the Dodd-Frank Act. The Bureau is nevertheless expected to release a long-anticipated debt collection rule, given the sheer volume of collections complaints and the new leadership's focus on that metric.

 

Legislation

Changes to the CFPB's structure and supervisory authority are also looming, as lawmakers have sought to revamp the Bureau through the legislative process as well as subject its funding to Congressional appropriation. In December 2017, the Government Accountability Office (GAO) nullified a previous CFPB bulletin targeting dealer markups using disparate impact theories. Other proposed bills, currently in the House or Senate, would impact many of the CFPB's core functions if passed, including its oversight of small-dollar loans, mortgage-related entities and consumer lending generally. Notably, the proposed Home Mortgage Disclosure Adjustment Act would exempt community banks, small credit unions and nonbank mortgage lenders from the expanded HMDA disclosure requirements. Bipartisan joint resolutions in the House and Senate are also aiming to repeal the CFPB's Payday Rule under the Congressional Review Act (CRA). Lawmakers have also been actively trying to enable banks to issue high-interest payday loans (EQUAL Act), as well as to legislatively overturn the Second Circuit's decision in Madden v. Midland Funding to allow lenders to circumvent state interest caps. Finally, the Accountability of Wall Street Executives Act, introduced by certain Democrats, if passed, would permit state AGs to issue subpoenas to investigate national banks. Other pending proposals have sought to revamp the Bureau's leadership structure by transforming it into a multi-member, bipartisan commission—an undercurrent present in recent, key federal cases.

 

Core functions and processes

Acting Director Mulvaney has also ordered a comprehensive review of the Bureau, seeking public feedback on ways to improve the CFPB's oversight of regulated entities and enhance consumer protection. The below timeline chronologically reflects the areas subject to such ongoing review:

    
    

Overview of comments received

 

    
    

 

This publication is provided for your convenience and does not constitute legal advice. This publication is protected by copyright.
© 2018 White & Case LLP

 

Top