According to media reports, President Trump is expected to name Mick Mulvaney, the current Director of the Office of Management and Budget, to serve as CFPB Acting Director upon Director Cordray’s resignation.  The President’s announcement may come as soon as today.

Assuming the media reports are accurate, they indicate that the White House has decided that David Silberman, the current CFPB Acting Deputy Director, does not automatically become Acting Director upon Director Corday’s resignation pursuant to the Dodd-Frank Act provision that provides that the Deputy Director shall “serve as acting Director in the absence or unavailability of the Director.”  In our view, because that provision does not cover the present situation (i.e., a vacancy created by the existing Director’s resignation and permanent departure from the agency), the Federal Vacancies Reform Act of 1998 permits President Trump to appoint as Acting Director either a senior employee of the CFPB or an officer of an agency who has already been approved by the Senate such as Mr. Mulvaney.

The CFPB’s final payday loan rule was published in today’s Federal Register.  Lenders covered by the rule include nonbank entities as well as banks and credit unions.  In addition to payday loans, the rule covers auto title loans, deposit advance products, and certain high-rate installment and open-end loans.  For a summary of the rule, see our legal alert.

Since the rule’s effective and compliance dates are tied to the Federal Register publication date, those dates have now been set. The regulation is effective January 16, 2018.  The compliance date for the rule’s substantive requirements and limits (Sections 1041.2 through 1041.10), compliance program/documentation requirements (Section 1041.12), and prohibition against evasion (Section 1041.13) is August 19, 2019.  The deadline to submit an application for preliminary approval to be a registered information system is April 16, 2018.

We expect the rule’s publication to trigger the filing of an industry lawsuit challenging the rule within a matter of weeks.  In addition, the rule could become the subject of a resolution of disapproval under the Congressional Review Act (CRA), the vehicle used by Congress to overturn the CFPB’s arbitration rule.

Under the CRA, the receipt of a final rule by Congress begins a period of 60 days during which a member of either chamber can introduce a joint resolution of disapproval.  In calculating the 60 days, every calendar day is counted, including weekends and holiday, with the count paused only for periods when either chamber (or both) is gone for more than three days (i.e. pursuant to an adjournment resolution).

For purposes of the CRA, a rule is considered to have been “received by Congress” on the later of the date it is received in the Office of the Speaker of the House and the date of its referral to the appropriate Senate committee.  The payday loan rule was received by the Speaker of the House on November 13 and referred to the Senate Banking Committee on November 15.

To be eligible for the special Senate procedure that allows a CRA disapproval resolution to be passed with only a simple majority, the Senate must act on the resolution during a period of 60 session days which begins on the later of the date when the rule is received by Congress and the date it is published in the Federal Register.

The final payday loan rule’s publication in the Federal Register is also a trigger for the filing of a petition with the Federal Stability Oversight Council (FSOC) to set aside the rule. The Dodd-Frank Act provides that such a petition must be filed “not later than 10 days” after a regulation has been published in the Federal Register.  Efforts to use the FSOC mechanism to overturn the arbitration rule did not materialize.

By a vote of 54-43, Joseph Otting has been confirmed by the Senate as Comptroller of the Currency. Mr. Otting is a former president and CEO of California-based OneWest Bank, where he worked with Steven Mnuchin, who now serves as Secretary of the Treasury.

According to Politico, Acting Comptroller Keith Noreika has submitted his resignation, to be effective one business day after Mr. Otting takes office.  Politico also reported that because Mr. Noreika has been working at the OCC as a “special government employee,” he can return to the private sector without any mandated waiting period.

Mr. Otting has not yet taken a public position on the OCC’s special purpose national bank (SPNB) charter proposal.  However, we would expect Mr. Otting to pursue the same policy objectives as those pursued by Mr. Noreika.  While serving as Acting Comptroller, Mr. Noreika stated several times that the OCC is continuing to consider the proposal and intends to defend its authority to grant an SNPB charter to a nondepository company in the lawsuits filed by the NY Department of Financial Services and the Conference of State Bank Supervisors.  He also has been dismissive of the argument made by opponents of the SPNB charter that it may lead to an inappropriate mixing of banking and commerce and questioned the continuing need for the current barriers between banking and commerce in recent comments.

The CFPB has filed a brief opposing the petition for certiorari filed by two tribally-affiliated lenders seeking U.S. Supreme Court review of the Ninth Circuit’s decision in CFPB v. Great Plains Lending, LLC, et al.  In that decision, the Ninth Circuit rejected the lenders’ challenge to the CFPB’s authority to issue civil investigative demands (CID) to companies that are “arms” of Native American tribes.

After the CFPB denied their petition to set aside the CIDs, the lenders refused to comply with the CIDs.  The CFPB then filed a petition to enforce the CIDs in a California federal district court.  The district court granted the CFPB’s petition and the lenders appealed to the Ninth Circuit.  Because courts apply less scrutiny to jurisdictional challenges in pre-complaint investigations, the Ninth Circuit limited its inquiry to whether the CFPB’s authority was “plainly lacking” and concluded that Congress likely did not intend to exclude tribally-owned financial services companies from CFPA coverage.

The CFPB authorizes the CFPB to issue CIDs to “any person” and defines “person” to include “company[ies]” and “other entities.”  In its opposition to the lenders’ certiorari petition, the CFPB argues that the Ninth Circuit correctly held that it did not plainly lack jurisdiction to issue the CIDs to the lenders and that the Ninth Circuit’s interpretation of the term “person” to include all companies that offer financial services to consumers nationwide without regard to tribal ownership does not conflict with any Supreme Court decision or present a circuit conflict.  In addition, the CFPB argues that the lenders had not yet factually established their status as “arms of the Tribe.”

According to widespread media reports, Director Cordray informed CFPB staff members today that he expects to resign as CFPB Director by the end of this month.  His replacement with a successor appointed by President Trump will undoubtedly have a significant impact on the agency’s priorities and initiatives.  On December 5, 2017, from 12 p.m. to 1 p.m. ET, Ballard attorneys will hold a webinar: “Richard Cordray Resigns: What’s Next for the CFPB?”  Click here to register.

Director Cordray is reported to have told CFPB staff that “it has been a joy of my life to have the opportunity to serve our country as the first director of the Consumer Bureau by working alongside all of you here.  Together we have made a real and lasting difference that has improved people’s lives.”

The immediate question raised by Director Corday’s announcement is who will serve as Acting Director pending the appointment and confirmation of a successor.  David Silberman currently serves as Acting Deputy Director.  The Dodd-Frank Act provides that the Deputy Director shall “serve as acting Director in the absence or unavailability of the Director.”

This provision raises two questions.  First, since Mr. Silberman is Acting Deputy Director, it is unclear whether he is eligible to serve as Acting Director under this provision.  (Director Cordray could seek to remove this issue by appointing Mr. Silberman the Deputy Director before he leaves the CFPB.)

Second, there is uncertainty as to whether the phrase “absence or unavailability of the Director” covers the present situation (i.e., a vacancy created by the existing Director’s resignation and permanent departure from the agency).  As a result, the White House could take the position that because Dodd-Frank does not specify who should serve as Acting Director upon the Director’s resignation, the Federal Vacancies Reform Act of 1998 permits President Trump to appoint as Acting Director either a senior employee of the CFPB or an officer of an agency who has already been approved by the Senate.  In that circumstance, Treasury Secretary Mnuchin would seem to be the likely choice to serve as Acting Director until Director Cordray’s successor is appointed and confirmed.

According to Politico, the White House has released a written statement indicating that President Trump plans to appoint an Acting Director.  However, the statement did not indicate the basis for the White House’s position.  Should President Trump appoint an Acting Director, that appointment might face a challenge from supporters of Mr. Silberman.


In a new Policies and Procedures Manual (PPM) issuance (PPM 6300-2), the OCC establishes its framework for evaluating certain types of licensing applications when the applicant bank has an overall Community Reinvestment Act (CRA) rating of “Needs to Improve” or “Substantial Noncompliance.”  Both ratings are referred to in the PPM as a “less than satisfactory CRA rating.”  The PPM applies to all national banks, federal savings associations, federal branches of foreign banks subject to the CRA, and state-chartered institutions subject to the CRA seeking to convert to a federal charter.

By way of background, the PPM states that OCC regulations implementing the CRA provide that the OCC must consider a bank’s CRA rating when reviewing the bank’s application for any of the following (Covered Applications): branch establishment, branch relocation, main or home office relocation, a Bank Merger Act filing involving two insured depository institutions, conversion from a state to a federal charter, and conversion between federal charters.  The PPM also states that it provides clarity and guidance on the OCC’s longstanding practice of subjecting Covered Applications from banks with significant CRA issues to enhanced scrutiny.

The OCC’s framework set forth in the PPM applies to applicant banks filing Covered Applications in two situations: where the bank has an overall satisfactory or better CRA rating but has one or more geographic rating areas rated less than satisfactory and where the bank has an overall less than satisfactory CRA rating.

For a bank with an overall satisfactory or better CRA rating but a less than satisfactory rating in one or more geographic rating areas, the general presumption is that the CRA consideration is consistent with approval of the Covered ApplicationHowever, the specific facts of a particular transaction may, on balance, result in a determination that the CRA consideration is not consistent with approval.

If a bank has an overall less than satisfactory CRA rating, the OCC will give enhanced scrutiny to the bank’s Covered Application.  As part of such scrutiny, the applicant bank will be required to submit with its application a description, and appropriate supporting information, of how it would meet CRA objectives in connection with the proposed transaction.  The bank must also describe in detail how approval of the Covered Application would allow the bank to improve its CRA performance.  The OCC would generally find that the CRA consideration is consistent with approval of a Covered Application if the bank demonstrates that approval, subject to conditions or otherwise, would help the bank to achieve its CRA objectives and would further the CRA’s public policy goals by encouraging the bank to help meet the credit needs of the communities it serves.

The PPM discusses four factors that the OCC will consider in assessing whether or not the CRA consideration is consistent with approval of a Covered Application by a bank with an overall less than satisfactory CRA rating.  The factors are:

  • whether the overall less than satisfactory CRA rating was issued recently, the severity of the less than satisfactory CRA performance rating, and the progress made by the applicant bank to address the issues underlying the less than satisfactory rating.
  • whether approval of the Covered Application would result in a material increase in the applicant bank’s size or the scope of its activities, and how such increase would affect the bank’s ability to help meet the credit needs of the communities to be served.
  • whether the proposed transaction would benefit the communities to be served, as well as the nature and extent of such benefits.
  • whether approving the Covered Application with conditions would (a) be sufficient to ensure that the pro forma organization will be able to achieve its CRA objectives, (b) clearly further the specific goals of CRA, or (c) significantly further fair access to banking services.

The PPM also states that, in certain circumstances, evidence of discriminatory or other illegal credit practices related to CRA lending activities can cause a bank to receive an overall less than satisfactory CRA rating, and that in such instances the same general framework and considerations apply.  Other topics discussed in the PPM are the timing of when the framework and considerations in the PPM will go into effect or no longer apply to a Covered Application, how the OCC handles a Covered Application when a bank has appealed a less than satisfactory CRA rating (either overall or in a particular rating area), and the content of OCC communications when the OCC notifies a bank that it has received such a rating.


Two weeks after President Trump signed H.J. Res. 111, the joint resolution passed by the House and Senate disapproving the CFPB arbitration rule, the CFPB has formally acknowledged Congress’ override of the rule under the Congressional Review Act.  The following notice is now posted at the head of the section of the CFPB’s website dealing with the arbitration rule:

“On Nov. 1, 2017, the President signed a joint resolution passed by Congress disapproving the Arbitration Agreements
Rule under the Congressional Review Act (CRA).  Pursuant to the joint resolution, the Arbitration Agreements Rule has
no force or effect. The materials relating to the Arbitration Agreements Rule on the Bureau’s website are for informational
purposes only.”

This is a fitting epitaph for a rule that was misconceived from the outset.  We assume the CFPB will publish a similar notice removing the arbitration rule from the Code of Federal Regulations, although we have not seen such a notice yet.

On November 29, 2017, from 12 p.m. to 1 p.m. ET, Ballard Spahr attorneys will hold a webinar, “Now that the CFPB’s Arbitration Rule is Dead, How Should the Industry React?”  For more information and a link to register, click here.

The CFPB has issued its fifth Financial Literacy Annual Report to Congress.  The report describes the CFPB’s ongoing financial literacy work, “with an emphasis on work during October 2016 through September 2017.”  It covers the CFPB’s financial literacy strategy, its financial education initiatives generally and those specifically targeted at students and young adults, servicemembers, economically vulnerable individuals, and older adults, and its research initiatives.

An Appendix to the report provides a list and brief descriptions of the CFPB’s currently available financial education resources, which include web-based resources and tools, CFPB brochures, CFPB reports and white papers, and consumer advisories.

We have previously commented that the CFPB has not devoted any resources to educating consumers about arbitration.  Congress’ override of the CFPB’s arbitration rule means that the rule cannot be reissued in substantially the same form, nor can a new rule that is substantially the same be issued, unless the reissued or new rule is specifically authorized by a law enacted after the date of the resolution of disapproval.  Since many financial services companies can be expected to continue to use arbitration agreements, a strong need remains for consumers to be educated about arbitration.

The CFPB has filed a lawsuit in a California federal district court against Freedom Debt Relief (FDR) and its CEO for alleged violations of the Consumer Financial Protection Act (CFPA) and the Telemarketing Sales Rule (TSR).  The CFPB’s press release describes Freedom as “the largest debt-settlement services provider in the United States.”

According to the CFPB’s complaint, Freedom communicated by phone with prospective customers and, before enrolling a consumer in its programs, obtained a credit report to confirm the identities of the consumer’s creditors and information about the debts owed.  Freedom required consumers enrolled in its debt-settlement program to deposit money into dedicated accounts with an FDIC-insured bank and informed consumers that it would negotiate with creditors to accept less than the amounts actually owed.   When a debt was settled or collection attempts ceased, Freedom charged the consumer a fee that typically ranged from 18 to 25 percent of the amount of the debt.

The CFPB claims that Freedom knew that certain major credit card issuers and other creditors had policies against working with debt-settlement companies or “track records of repeatedly refusing to negotiate with Freedom.”  It also claims that, when it had been unable to negotiate with creditors, Freedom told consumers to negotiate directly with their creditors and gave them instructions for doing so.

The CFPB alleges that Freedom and its CEO violated the CFPA and TSR by engaging in the following conduct:

  • Despite knowing there was a significant chance that it would be unable to negotiate directly with certain creditors, by touting its “negotiating power” when marketing its services, creating “the false net impression that Freedom itself would be able to negotiate directly with all creditors.”
  • Despite representing to consumers that it would not charge any fees for its services until it had settled a debt and the consumer had made a settlement payment to the creditor, charging fees in cases where Freedom had not settled the consumer’s debt and no settlement payment was made.
  • Failing to disclose to consumers before they enrolled in Freedom’s program that they might be required to negotiate with creditors on their own.
  • Failing to clearly and conspicuously disclose that consumers owed the funds held in the dedicated accounts, could withdraw from the debt-relief service at any time, and, if the consumer withdrew, were entitled to all funds in the account other than funds earned by Freedom.

The CFPB’s complaint seeks consumer redress, civil money penalties, and injunctive relief.

The CFPB has published the following notices in today’s Federal Register:

  • Request for Information. Through the RFI, the CFPB seeks to learn more about consumers’ experience with access to free credit scores and the experience of companies and nonprofit credit and financial counseling providers offering their customers and the general public such access.  According to the CFPB, it will use the information gathered through the RFI to identify educational content that is providing the most value to consumers, to identify additional content the CFPB and others could develop to increase consumer understanding of credit reports and scores, and to gain a broader understanding of industry practices that best support educating consumers.  In addition to consumers and consumer advocacy groups, the interested members of the public from whom the CFPB encourages comments include credit card companies and other lenders.  Comments must be received on or before February 12, 2018 to be assured consideration.
  • Update to Free Credit Score Access List. In March 2017, the CFPB published a list of companies that had told the CFPB they offered existing credit card customers access to a free credit score.  In the notice, the CFPB states that it plans to update this list and provides criteria credit card issuers must meet to be included in the list. Companies that were included in the March 2017 list must submit a new entry to be included on the updated list.  The CFPB also states that it is considering whether to expand its list of companies offering free credit reports to include companies in other markets.  Companies that offer consumers access to free credit scores and meet the same criteria it uses for card issuers are invited to contact the CFPB if they would like to be included in a possible list.  Comments must be received on or before January 12, 2018 to be assured of consideration.