Several financial services trade associations wrote to CFPB Director Rohit Chopra voicing their concerns with the Advisory Opinion regarding Section 1034(c) of the Consumer Financial Protection Act.  The trade associations include the American Financial Services Association, the Bank Policy Institute, the Consumer Bankers Association, and the U.S. Chamber of Commerce.

For background, the CFPB issued an Advisory Opinion titled “Consumer Information Requests to Large Banks and Credit Unions” which requires large banks and credit unions to comply “in a timely manner” with consumer requests concerning their accounts.  The Advisory Opinion was the CFPB’s first guidance regarding Section 1034(c). 

The Advisory Opinion indicates that large banks and credit unions may not require a consumer to pay a fee to obtain the account information.  The CFPB advised that such fees would “likely include charging fees (1) to respond to consumer inquiries regarding their deposit account balances; (2) to respond to consumer inquiries seeking the amount necessary to pay a loan balance; (3) to respond to a request for a specific type of supporting document, such as a check image or an original account agreement; and (4) for time spent on consumer inquiries seeking information and supporting documents regarding an account.”    

In their letter to Director Chopra, the trade associations assert that: (1) the Advisory Opinion goes beyond the CFPB’s interpretation or guidance and instead articulates specific, additional requirements that go beyond the scope of the statute; and (2) the CFPB should adhere to the notice and comment requirements of the Administrative Procedures Act.  For these reasons, the trade associations request that the CFPB rescind the Advisory Opinion.

More specifically, the trade associations highlight that the Advisory Opinion does not permit “unreasonable impediments to a request for information about a consumer’s account” but the term “unreasonable impediment” is a new legal standard not contemplated by the language of Section 1034(c).  Additionally, the trade associations highlight that impeding the ability to charge a fee for a consumer request may be “at odds with banks’ obligations to operate in a safe and sounds manner and does not take into consideration fees banks may have to pay third parties to respond to a consumer’s request[.]”  Lastly, the trade associations ask the CFPB to commit to not seeking monetary relief for violations of Section 1034(c), as the CFPB indicated in a footnote in the Advisory Opinion that the agency did not intend to seek monetary relief for violations.

The trade associations also ask the CFPB to respond to a series of questions, including:

  • Although specific examples are given in the Advisory Opinion, what is the standard for determining whether a condition is an “unreasonable impediment”?
  • Are financial institutions permitted to assess fees for customer information requests through a particular channel when it makes the same information available for free via other and/or easier-to-access channels?
  • Do institutions have to create specific reports in response to customer inquiries?
  • What is the standard for determining whether wait times are “excessively long” when a customer is making a request to customer service?  Will the CFPB consider the facts and circumstances of the inquiry?
  • Is a large bank or credit union required to ensure that a customer “received” the account information?