As previously reported, the bill signed into law by President Biden on June 17, 2021 to create the Juneteenth National Independence Day actually results in an important change under the Truth in Lending Act (TILA) and Regulation Z.  There is a specific definition of “business day” under Regulation Z for certain purposes, including the waiting periods that apply to the TRID rule disclosures and right of rescission, the date that private education loan disclosures mailed to the consumer are deemed to be received, and the date that the right to cancel a private education loan expires.  Under the specific definition, a “business day” is “all calendar days except Sundays and the legal public holidays specified in 5 U.S.C. 6103(a) . . . .”

The bill amends 5 U.S.C 6103(a) to add “Juneteenth National Independence Day, June 19” as a specified legal public holiday.  As a result, without further action, under the specific definition of “business day” in amended 5 U.S.C. 6103(a), Saturday June 19 was not a business day.  (Although the federal government was closed on Friday June 18 in observance of the new legal public holiday, under the specific definition of “business day” in amended 5 U.S.C. 6103(a), June 18 was a business day.)

Industry representatives urged the CFPB to provide guidance.  Later in the day on June 18, Acting CFPB Director Uejio issued a statement that first addresses the significance of the new holiday, and then addresses the TILA issue as follows:

The CFPB, along with the other Financial Institutions Reform, Recovery, and Enforcement Act (FIRREA) regulators, is aware of concerns regarding implementation of the new Juneteenth Federal holiday, particularly as it relates to mortgage lender compliance with the Truth in Lending Act and TILA-RESPA Integrated Disclosure (TRID) timing requirements.  The CFPB recognizes that some lenders did not have sufficient time after the Federal holiday declaration to consider whether and how to adjust closing timelines. The CFPB understands that some lenders may delay closings to accommodate the reissuance of disclosures adjusted for the new Federal holiday.  The CFPB notes that the TILA and TRID requirements generally protect creditors from liability for bona fide errors and permit redisclosure after closing to correct errors.  Any guidance ultimately issued by the CFPB would take into account the limited implementation period before the holiday and would be issued after consultation with the other FIRREA regulators and the Conference of State Bank Supervisors (CSBS) to ensure consistency of interpretation for all regulated entities.

Industry members likely will find the initial guidance to be unhelpful.

Pursuant to the bona fide error defense under TILA, a creditor or assignee may not be held liable in any action brought under the civil liability or right of rescission provisions for a TILA violation if the creditor or assignee shows by a preponderance of evidence that the violation was not intentional and resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid any such error.  In practice, the usefulness of the defense is limited.  The defense is just that—a defense that is available to a creditor or assignee to assert in an action based on a TILA compliance issue.  The defense does not provide for a cure of the underlying issue.  As a result, if there is a TILA compliance issue with a loan of a type that typically affects the loan’s salability, investors typically will not agree to purchase the loan even if the lender asserts that the bona fide error defense is available.

The reference in Acting Director Uejio’s statement to the TRID rule permitting redisclosure after closing to correct errors likely is intended to address the possibility that because the Juneteenth bill changed the calculation of the TRID rule three business day waiting period between the date when a consumer receives the initial Closing Disclosure and the date of closing, the closing might need to be delayed and thereby cause items in that disclosure to become inaccurate.  However, instead of the ability to redisclose, the more significant issue is that the change in the calculation of the three business day waiting period will likely make it necessary in many cases to in fact delay the closing date.  In many cases, the creditor will be able to reflect any applicable changes in a revised Closing Disclosure provided on the delayed closing date.

 

The D.C. federal district court hearing the lawsuit filed by the Conference of State Bank Supervisors (CSBS) seeking to block the Office of the Comptroller of the Currency from granting a national bank charter to Figure Technologies Inc. has entered an order staying the lawsuit.

On June 15, CSBS filed an Unopposed Motion to Stay Litigation in which it referenced Acting Comptroller Hsu’s testimony to the House Financial Services Committee last month in which he indicated that the OCC is currently reviewing the OCC’s framework for chartering national banks.  In the motion, CSBS stated that the OCC has represented that it anticipates this review period will take about 90 days and that it does not intend to take any action towards granting a charter to Figure during this period.  CSBS also stated that a 90-day stay would conserve the parties’ and the court’s resources by avoiding potentially unnecessary briefing and oral argument.

The lawsuit represents CSBS’s third challenge to the OCC’s authority to issue special purpose national bank charters to non-depository fintech companies.  The first two lawsuits were dismissed on ripeness grounds.  In April 2021, the OCC filed a motion to dismiss the current CSBS lawsuit in which the OCC once again argued that CSBS lacks standing and that its claims are not ripe.  That motion is pending before the court.

Although CSBS requested a 90-day stay in its motion, the recital of the order’s terms on the court docket does not expressly limit the stay to 90 days.  The docket also indicates that the parties are required to file a joint status report by September 27, 2021.

 

The bill signed into law by President Biden on June 17, 2021 to create the Juneteenth National Independence Day results in an important change under the Truth in Lending Act (TILA) and Regulation Z.

Under TILA and Regulation Z, there are two definitions of “business day.”  One definition is “a day on which the creditor’s offices are open to the public for carrying on substantially all of its business functions.”  There is a specific definition for certain purposes, including the waiting periods that apply to the TRID rule disclosures and right of rescission, the date that private education loan disclosures mailed to the consumer are deemed to be received, and the date that the right to cancel a private education loan expires.  Under the specific definition, a “business day” is “all calendar days except Sundays and the legal public holidays specified in 5 U.S.C. 6103(a), such as New Year’s Day, the Birthday of Martin Luther King, Jr., Washington’s Birthday, Memorial Day, Independence Day, Labor Day, Columbus Day, Veterans Day, Thanksgiving Day, and Christmas Day.”

The Juneteenth bill amends 5 U.S.C. 6103(a) to add “Juneteenth National Independence Day, June 19” as a specified legal public holiday.  As a result, without further action, under the specific definition of “business day” in amended 5 U.S.C. 6103(a), Saturday June 19 is not a business day.  Although the federal government will be closed on Friday June 18 in observance of the new legal public holiday, under the specific definition of “business day” in amended 5 U.S.C. 6103(a), June 18 is a business day.

Apparently, the CFPB will be providing guidance to the industry regarding this development.

After reviewing a brief history of the ADA and the U.S. Department of Justice’s (DOJ) interpretation that Title III’s public accommodation accessibility requirements apply to websites, we look at DOJ’s approach to enforcing the ADA during the Biden Administration.  We also review recent ADA litigation trends, the 11th Circuit’s landmark Winn-Dixie decision and its likely impact on future ADA litigation, how businesses are approaching ADA compliance in the absence of clear DOJ guidance setting a technical accessibility standard, and the prospects for federal legislation that would create a safe harbor from litigation.  We also share our thoughts on best practices businesses can implement to avoid ADA liability.

Ballard Spahr Senior Counsel Alan Kaplinsky hosts the conversation, joined by Lori Sommerfield, Of Counsel in the firm’s Consumer Financial Services Group, and Michelle McGeogh, a partner in the firm’s Real Estate and Construction Litigation Group.  Both Lori and Michelle are members of Ballard Spahr’s Accessibility Team.

Click here to listen to the podcast.

State legislatures in New Mexico and Nevada enacted laws this session targeting medical debt collections. Both laws have been signed by the states’ Governors and take effect July 1, 2021.

New Mexico Patients Debt Collection Practices Act 

The New Mexico Patients Debt Collection Practices Act places a number of requirements on health care facilities and debt collectors and buyers.

Notably, the Act prohibits collection actions against indigent patients, who are defined as those making less than 200% above the poverty limit. “Collection actions” are defined to include selling debts, and filing lawsuits, lien, or garnishments. Health care facilities and third-party health care providers are also required to send annual reports to the human services department related to indigent care funds and safety net care funds under the Indigent Hospital and County Health Care Act and funds raised to cover the cost of operating and maintain certain hospitals pursuant to the Hospital Funding Act.

Health care facilities are also required to offer to provide certain health insurance verification services to patients before seeking payment for medical care. The facility must offer to verify that a patient has health insurance, and, if the patient is uninsured, provide information about public insurance, public programs, and any financial assistance offered by the facility. The facility must also offer to assist with applying to any applicable programs. If a third-party health care provider will bill the patient, the facility must send the information gathered during the insurance verification process to the third-party provider. The health care facility may not seek payment for the medical care until the third-party health care provider has received that information.

The Act also includes new requirements for billing statements. Billing statements sent to the patients must include: (1) a description of the date, amount and nature of all charges: (2) whether the patient’s insurance has been verified; (3) if the patient was screened for programs that assist with health care costs; and (4) if the health care facility or third-party health care provider has or will bill insurance or public programs to assist with the health care costs. This billing statement must also be provided to debt collectors and debt buyers before they can communicate with the consumer or take any collection action.

In communications with the debtor, health care facilities, third-party health care providers, creditors, debt collectors, and debt buyers must offer to provide the debtor with the information listed in the billing statement. However, this information must only be provided to the requesting debtor once every thirty days.

Additionally, within 30 days of receipt of payment on a medical debt, health care facilities, third-party health care providers, creditors, debt collectors, and debt buyers must send a receipt to the person who made the payment that shows: (1) the amount paid; (2) the date of the payment; (3) the new balance; (4) the interest rate and interest accrued since the last payment; (5) the account number; (6) the current owner of the debt, and the name of the creditor; and (7) if the payment was accepted as a payment in full of the debt. Payments must be applied on the date they were received, or if it was received after business hours, the next business day.

Finally, the Act prohibits agreements between a patient and a health care facility, provider, creditor, debt collector, or debt buyer that result in a patient waiving his or her right to resolve a dispute.

The Act gives the New Mexico Attorney General enforcement authority, and authorizes the Attorney General to adopt rules. The Act also tasks the Attorney General with establishing a complaint process for aggrieved patients or members of the public to file their complaints against a health care facility, third-party health care provider, creditor, debt collector, or debt buyers who violates a provision of the Act.

Nevada Medical Debt Collection Law 

Nevada’s new medical debt collection law applies to all debts for goods and services provided by medical facilities. “Medical debt” is defined broadly, and includes the financing or extension of credit for a third party if the sole purpose of the extension of credit is for the purchasing or goods or services from a health care facility or provider. The only express exemption from the definition of “medical debt” is open-end or closed-end extensions of credit made by a financial institution to a borrower, which the borrower can use for purposes other than the purchase of goods or services from a medical facility or provider, at the borrower’s discretion. “Medical facilities” has the same definition as provided under Nev. Rev. Stat. Ann. § 449.0151.

The law also provides for a 60-day notification period. During this period, collection agencies are prohibited from taking any action to collect a medical debt and are required to send the debtor a written notification, by registered or certified mail, that includes: (1) the name of the facility; (2) the date the goods and/or services were provided; (3) the principal amount of the debt; (4) the name of the collection agency; and (5) information regarding whether the debt has been assigned to a collection agency, or whether the collection agency has otherwise obtained the debt for collection. Debtors may opt to initiate contact with the collection agency during this 60-day period, but this does not allow the collection agency to take action before the expiration of the 60-day period.

Collection agencies are permitted to accept voluntary payments from the debtor during the 60-day notification period if the following conditions are met: (1) the debtor initiates the contact; and (2) the collection agency discloses to the debtor that a payment is not demanded or due during the 60-day period; and (3) the medical debt will not be reported to any credit reporting agency during the 60-day period. The law does not specify how this disclosure must be given to the borrower. Voluntary payments do not extend the applicable statute of limitations, admit liability, or waive any defense the borrower may have to the collection of the medical debt.

Additionally, the law prohibits collection agencies from taking confessions of judgment, commencing a civil action for debts less than $10,000, and charging or collecting fees of more than 5% of the debt. It also provides that the law’s requirements and prohibitions cannot be waived.

In another action demonstrating that a “new CFPB” is in place under the Biden Administration, the CFPB has issued an interpretive rule setting forth the basis for its determination that it has authority to examine institutions that it supervises for Military Loan Act (MLA) compliance.

In 2018, under the leadership of former Acting Director Mulvaney, the CFPB stopped examining its supervised institutions for MLA compliance on the ground that it did not have the requisite statutory authority.  Dave Uejio, soon after becoming the current Acting Director in January 2021, publicly shared a statement sent to CFPB staff in which he criticized prior CFPB leadership’s approach to the MLA and indicated that the CFPB planned to resume supervisory examinations for MLA compliance.

Mr. Uejio’s views are reflected in the CFPB’s press release announcing the change in position on the CFPB’s MLA authority.  It states that “current CFPB leadership does not find [CFPB leadership’s] prior beliefs [as to the CFPB’s MLA authority] persuasive and the CFPB will now resume MLA-related examination activities.”  (In 2019, the CFPB sent a proposal to Congress that would have amended the Consumer Financial Protection Act (CFPA) to give the CFPB express statutory authority to examine supervised nonbanks and very large banks and credit unions for MLA compliance.)

The Bureau’s analysis in the interpretive rule of its MLA authority includes the following key arguments:

  • The Consumer Financial Protection Act (CFPA) authorizes the Bureau to examine supervised nonbanks “for the purpose of assessing and detecting ‘risks to consumers.’”  The risks to servicemembers and their dependents from conduct that violates the MLA falls squarely within that category.  Risks of harm to consumers that the Bureau can address through its enforcement authority are logically “risks to consumers” that the Bureau can detect and assess.  If “risks to consumers” do not include those risks that can lead to a Bureau enforcement action for civil money penalties, restitution, disgorgement, and other relief, it is unclear what remaining meaning the category would have.
  • The CFPA authorizes the Bureau to examine very large banks and credit unions “for the purpose of assessing and detecting those ‘risks to consumers’ that are ‘associated’ with ‘activities subject to’ Federal consumer financial laws, such as the TILA or CFPA.”  The activity of extending “consumer credit” under the MLA is a subset of the activity of extending “consumer credit” under TILA and violations of the MLA can overlap with TILA violations as well as violations of the CFPA’s UDAAP prohibition.  Because conduct that violates the MLA is associated with activities subject to TILA and the CFPA, the CFPA standard is satisfied.
  • By incorporating TILA’s enforcement scheme, the MLA authorizes the Bureau to use administrative adjudications, civil enforcement actions, and other authorities to enforce the MLA.  That enforcement scheme is complemented by the Bureau’s use of examinations to detect and assess risks to consumers arising from MLA violations.  This reading avoids an unworkable gap in Bureau examinations that can otherwise only be filled by the formal enforcement process.  Based on the Bureau’s experience, that gap leads to wasteful inefficiencies for both the Bureau and supervised institutions.  When the Bureau is already examining a nonbank or very large bank or credit union for potential TILA violations that are intertwined with potential MLA violations, it is inefficient for both the Bureau and supervised institution if the Bureau relies exclusively on its CFPA enforcement tools to identify and address MLA violations, closing off any use of the Bureau’s supervisory process to detect and address these risks to consumers.  As an example of such inefficiency, verifying TILA disclosures would be the work of a Bureau examiner but reviewing the related MLA disclosures in the same document would be reserved to a Bureau enforcement attorney who would normally obtain copies of such disclosures through a CID.

In the interpretive rule, the CFPB also sets forth the arguments that had persuaded the Bureau under its prior leadership that it lacked the authority to examine for MLA compliance and provides the reasons why the Bureau “no longer finds these arguments persuasive.”

 

On the same day that she was confirmed as an FTC Commissioner by the full Senate, Lina Khan was designated FTC Chair by President Biden and sworn in as Chair.

Ms. Khan fills the FTC seat vacated by former FTC Chairman Joseph Simons (and gives Democrats a 3-2 majority pending Commissioner Rohit Chopra’s confirmation as CFPB Director).  FTC Commissioner Rebecca Slaughter had been serving as Acting Chair since Mr. Simons left the agency.

During May 2021, the federal Government Accountability Office (“GAO”) issued a report (GAO-21-393) containing findings from its review of issues related to the CFPB’s oversight and enforcement of the Equal Credit Opportunity Act (“ECOA”) and the Home Mortgage Disclosure Act (“HMDA”).  Specifically, the report examines how the CFPB has (i) managed the reorganization of its Office of Fair Lending and Equal Opportunity and related risks during 2018, (ii) monitored and reported on its fair lending performance, and (iii) used new HMDA data fields to analyze and support its fair lending activities.  The report was requested by two Democratic members of the Senate Banking Committee, Chairman Sherrod Brown (D-OH) and Elizabeth Warren (D-MA).

In conducting the study, the GAO reviewed CFPB documents related to its fair lending activities (such as strategic and performance reports, policies and procedures) and the reorganization. The GAO evaluated implementation of the reorganization against relevant key practices identified in a prior GAO 2018 report (GAO-18-427). The GAO also interviewed CFPB staff.

Background

The report notes that the Dodd-Frank Act of 2010 required the CFPB to establish an Office of Fair Lending and Equal Opportunity (“OFLEO”), with such powers and duties as its Director may delegate.  Those powers included providing oversight and enforcement of federal fair lending laws enforced by the CFPB, and coordinating the Bureau’s efforts with other federal and state agencies.  In 2011, the CFPB established OFLEO under the Division of Supervision, Enforcement and Fair Lending (“SEFL”).

In January 2018, the CFPB announced a reorganization of OFLEO, which was completed one year later in January 2019.  As we previously reported, the rationale provided for the move at that time – orchestrated under then-Acting CFPB Director Mick Mulvaney – was that the new organizational structure was designed to best enable the Bureau to fulfill its statutorily mandated activities in a way that avoids redundancy and makes the best use of the CFPB’s resources. The reorganization chiefly involved transferring OFLEO from SEFL to the CFPB Director’s Office under the Office of Equal Opportunity and Fairness.

The GAO report indicates that the reorganization also delegated some of OFLEO’s previous responsibilities, staff and budget to other offices within SEFL.  The 38 OFLEO staff positions authorized for fiscal year 2018 were redistributed within SEFL; five were transferred to SEFL’s “front office,” eight to the Office of Enforcement, six to the Office of Supervision Examinations, and nine to the Office of Supervision Policy.  At the end of the reorganization, only 10 positions were left in OFLEO.

Key changes in the CFPB’s fair lending responsibilities under the reorganization included the following:

  • Enforcement: Shifted responsibility from specialist attorneys in OFLEO to generalist attorneys in the Office of Enforcement.
  • Supervision: Shifted subject matter expertise and examination support from dedicated supervision staff in OFLEO to a new team in the Office of Supervision Policy.
  • Prioritization: Shifted responsibility for selecting institutions for fair lending examination and identifying enforcement priorities from OFLEO to Supervision offices and the Office of Enforcement.

The GAO report notes that some duties remained unchanged after the reorganization.  Specifically, the Office of Supervision Examinations continues to be responsible for scheduling and conducting fair lending examinations, and OFLEO for orchestrating fair lending outreach and education (speaking events, webinars and roundtables).  OFLEO also continues to write the Fair Lending Annual Report to Congress on the CFPB’s fair lending activities and serves as the primary point of contact for the U.S. Department of Justice (with the notable exception of enforcement investigations) and other federal and state agencies on fair lending issues.

GAO Findings and Recommendations

Key findings of the GAO report were two-fold as it relates to the CFPB’s OFLEO reorganization:

  • As the CFPB planned and implemented the reorganization, the Bureau did not “substantially incorporate” key practices for agency reform efforts that the GAO had identified in its prior work, such as using employee input for planning or monitoring implementation progress and outcomes.
  • The GAO identified specific challenges related to the reorganization (including loss of fair lending expertise and specialized data analysts) that “may have contributed to a decline in enforcement activity in 2018.” In particular, the GAO noted that the CFPB “has not assessed how well the reorganization met its goals or how it affected [its] fair lending supervision and enforcement efforts.”

The GAO also noted that, as of February 2019 when the reorganization was completed, the CFPB stopped reporting on performance goals and measures specific to fair lending supervision and enforcement.  Those metrics included tracking the number of completed fair lending examinations and the percentage of enforcement cases successfully resolved, among others.  The GAO stated that “[w]ithout those goals and measures, CFPB is limited in its ability to assess and communicate progress on its fair lending supervision and enforcement efforts, key components of CFPB’s mission.”

The GAO report made two recommendations, both of which the Bureau agreed to:

  • The CFPB Director should collect and analyze information on the outcomes of its 2018-2019 fair lending reorganization and use that assessment to address any “challenges or unintended consequences resulting from that change;” and
  • The CFPB Director should develop and implement performance goals and measures specific to its efforts to supervise and enforce fair lending laws.

We will now have to wait and see what CFPB leadership (under either Acting Director Dave Uejio or a permanent Director) concludes in its assessment of its fair lending reorganization and whether that assessment will be made publicly available.

Another very interesting aspect of the GAO report is a section on the CFPB’s use of new HMDA data fields that mortgage lenders were required to begin reporting as of January 1, 2018 under the 2015 HMDA final rule (Regulation C).  The GAO report states that the CFPB has used the additional HMDA data to support its supervisory and enforcement activities and fair lending analyses.  Specifically, the CFPB incorporated the new loan-level data into its efforts to identity and prioritize fair lending risks for potential discriminatory lending activity (such as lending patterns that suggest potential discrimination), support fair lending examinations and investigations, and improve efficiency. As an example, the GAO cites several examples of the Bureau’s use of the new HMDA data fields:

  • An informal CFPB analysis found that the new HMDA data reduce “false positives.” This term is used by the CFPB and other regulators to refer to cases in which lenders are incorrectly identified as presenting high fair lending risk.
  • CFPB officials noted that the new HMDA data allows them to further segment lending data by geographic area, race, demographics and other variables to support fair lending examination and investigations. For example, the new data allows the CFPB to differentiate loan type (consumer v. business loans) and new data on credit scores, interest rate spread, and total loan cost improve the Bureau’s ability to compare how institutions price loans, which helps its staff identify potentially discriminatory lending practices.  The new HMDA data providing property addresses has also improved the CFPB’s ability to identify redlining risks in specific geographic areas by providing more detailed local market data.
  • The CFPB shared examples of how the new HMDA data may improve the efficiency of their fair lending work. As one illustration, officials in the Office of Enforcement stated that the new data allow them to investigate fair lending issues in greater detail before officially opening an investigation and subpoenaing additional data.

The report also notes that the Dodd-Frank Act requires the CFPB to retroactively assess the effectiveness of “significant rules” it adopts and then publish an assessment report within five years after the rule’s effective date.  While the GAO report stated that CFPB officials were considering whether the 2015 HMDA final rule qualifies as “significant” within the meaning of that requirement, on June 11, 2021 the CFPB published its Spring 2021 semi-annual regulatory agenda, in which the Bureau announced that it will indeed assess it.  The Bureau also noted that it will not pursue other HMDA rulemakings – one that concerns the data points that lenders must report and another related to the public disclosure of HMDA data.  See our separate blog post on this development.

Today, by a vote of 69-28, the full Senate confirmed Lina Khan to serve as FTC Commissioner.

Ms. Khan will fill the FTC seat vacated by former FTC Chairman Joseph Simons.  His remaining term runs through September 2024.   Ms. Khan’s confirmation means the Democrats now hold a 3-2 Democratic majority, with the Democratic Commissioners consisting of Ms. Khan, Rohit Chopra, and Rebecca Slaughter (who current serves as Acting Chairwoman.)

With Ms. Khan confirmed, the White House will presumably seek to move Mr. Chopra’s nomination as CFPB Director forward for a full Senate vote.  Mr. Chopra’s confirmation as CFPB Director would, however, end the Democrats’ 3-2 majority until another Democratic nominee is confirmed to replace Mr. Chopra as FTC Commissioner.

 

The CFPB has published its Spring 2021 rulemaking agenda as part of the Spring 2021 Unified Agenda of Federal Regulatory and Deregulatory Actions.  It represents the “new CFPB’s” first rulemaking agenda during the Biden Administration.  The agenda’s preamble indicates that the information in the agenda is current as of April 26, 2021 and identifies the regulatory matters that the Bureau “reasonably anticipates having under consideration during the period from May 1, 2021 to April 30, 2021.”

Three significant items that were listed as “long-term actions” in the Bureau’s Fall 2020 rulemaking agenda, the last agenda issued under former Director Kraninger, no longer appear in the Spring 2021 agenda.  First, there is no longer any reference to possible rulemaking to define the meaning of “abusive” under Dodd-Frank.  Second, there is no longer any reference to possible rulemaking on payday loan disclosures.  Third, the new agenda contains no reference to a possible rulemaking to address concerns that the Bureau’s current rule on loan originator compensation may be unduly restrictive.

The new agenda lists the following two items as in the “final rule stage”:

  • Debt collection.  In April 2021, the CFPB issued a proposal that would extend by 60 days the effective date of Part I and Part II of its final debt collection rule issued in, respectively, October 2020 and December 2020.  The comment period closed on May 19, 2021.  The debt collection rule (Parts I and II) is scheduled to take effect on November 30, 2021.  The CFPB’s proposal would extend the effective date to January 29, 2022. The Bureau indicates in the agenda that its next action will be a final rule as to the effective date.
  • LIBOR.  In June 2020, the CFPB proposed amendments to Regulation Z to address the discontinuation of the London Inter-Bank Offered Rate (LIBOR) that is currently used by many creditors as the index for calculating the interest rate on credit cards and other variable-rate consumer credit products.  In 2017, the United Kingdom’s Financial Conduct Authority, the regulator that oversees the panel of banks on whose submissions LIBOR is based, announced that it would discontinue LIBOR sometime after 2021.  The comment period closed on August 4, 2020. In the agenda, the Bureau indicates that it expects to issue a final rule in January 2022.

The items identified in the agenda as in the “proposed rule stage” are:

  • Business Lending Data (Regulation B).  Section 1071 of Dodd-Frank amended the ECOA, subject to rules adopted by the Bureau, to require financial institutions to collect and report certain data in connection with credit applications made by women- or minority-owned businesses and small businesses.  The Bureau issued a SBREFA outline in September 2020 and convened a SBREFA panel in October 2020.  In December 2020, the Bureau released the final report of the SBREFA panel.  The Bureau’s next step will be the issuance of a Notice of Proposed Rulemaking (NPRM) for which the agenda gives a September 2021 estimated date.
  • Amendments to FIRREA Concerning Appraisals (Automated Valuation Models).  The Bureau is participating in interagency rulemaking with the Federal Reserve, OCC, FDIC, NCUA and FHFA to develop regulations to implement the amendments made by the Dodd-Frank Act to the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (FIRREA) concerning appraisals.  The FIRREA amendments require implementing regulations for quality control standards for automated valuation models.  The Bureau estimates in the agenda that the agencies will issue an NPRM in December 2021.
  • Mortgage Servicing COVID-19 Relief.  In April 2021, the Bureau issued an NRPM to amend Regulation X in various ways to address the COVID-19 national emergency.  The proposal would amend aspects of the early intervention requirements, loss mitigation procedures, and foreclosure protections.  The comment period on the NPRM closed on May 10, 2021 and the Bureau estimates in the agenda that it will issue a final rule in July 2021.

The items identified in the agenda as in the “pre-rule stage are:

  • Consumer Access to Financial Information.  Section 1033 of Dodd-Frank addresses consumers’ rights to access information about their own financial accounts, and permits the CFPB to prescribe rules concerning how a provider of consumer financial products or services must make a consumer’s account information available to him or her, “including information related to any transaction, or series of transactions, to the account including costs, charges, and usage data.”  In November 2016, the Bureau issued a request for information (RFI) about market practices related to consumer access to financial information and, after holding a symposium in February 2020, the Bureau issued an Advance Notice of Proposed Rulemaking in connection with its Section 1033 rulemaking in November 2021.  In the agenda, the Bureau gives an estimated April 2022 date for its next pre-rule steps.
  • Property Assessed Clean Energy Financing.  In March 2019, the CFPB issued an Advance Notice of Proposed Rulemaking to extend Truth in Lending Act ability-to-repay requirements to PACE transactions.  The Bureau gives an October 2021 estimate in the agenda for pre-rule activity.

The items identified in the agenda as “long-term actions” for which no estimated dates for further action are given are:

  • Mortgage Servicing Rules.  The Bureau is considering whether to propose additional amendments to the servicing rules, including, for example, loss mitigation-related provisions.
  • Artificial Intelligence.  In February 2017, the CFPB issued an RFI concerning the use of alternative data and modeling techniques in the credit process.  The Bureau states that it recognizes the importance of continuing to monitor the use of AI and machine learning and is evaluating “whether rulemaking, a policy statement, or other Bureau action may become appropriate.”

Pursuant to Dodd-Frank Section 1022(d), the Bureau is required to conduct an assessment of each significant rule or order it adopts under a Federal consumer financial law and publish a report of each assessment not later than 5 years after the rule’s or order’s effective date.   In connection with the release of the Spring 2021 agenda,  the CFPB announced that it will assess the October 2015 significant amendments to Regulation C under the Home Mortgage Disclosure Act.