The California Department of Business Oversight (DBO) has published a second round of modifications to its proposed regulations under the State’s Student Loan Servicing Act.  As previously covered, the DBO published its first round of revised rules last month.

The latest revisions to the regulations clarify servicer responsibilities related to application of payments, borrower communications and handling of qualified written requests (QWRs), and recordkeeping requirements, among other miscellaneous changes.

Payments

The initial regulations provided that a servicer must credit any online payment the same day it is paid by the borrower, if paid before the daily cut off time for same day crediting posted on the servicer’s website, or the next day, if paid after the posted cut off time.  These requirements, which were unmodified by the first round of revisions, have now been changed to clarify that servicers must only apply payments the same or next business day, depending on whether received before or after the published cut off time.

Borrower Communications and Qualified Written Requests

The Act requires that a servicer respond to QWRs by acknowledging receipt of the request within five business days and, within 30 days, providing information relating to the request and an explanation of any account action, if applicable.  The first round of revised regulations added the limitation that a servicer is only required to send a borrower a total of three notices for duplicative requests.  The latest revisions add two additional provisions.  First, servicers are only required to send an acknowledgement of receipt within five days if the action requested by the borrower has not been taken within five days of receipt.  Second, servicers may designate a specific electronic or physical address to which QWRs must be sent.  If designated, however, this information must be posted on the servicer’s website.

The revised regulations also further specify what is required of customer service representatives.  Now, federal and private loan servicer representatives must inform callers about alternative repayment plans if the caller inquires about repayment options.  Federal loan servicers must now also inform callers about loan forgiveness benefits, if the caller inquires about repayment options.  These regulations have evolved significantly.  The initial regulations required that representatives “be capable of discussing” alternative repayment plan and loan forgiveness benefits with callers, and be trained in the difference between forbearance and alternative repayment plans.  The latest revisions have added specific triggers for discussing repayment options—and forgiveness benefits for federal loans.

Servicer Records

The first round of revisions eliminated the DBO’s specific record keeping formatting requirements.  In its place, the latest round of revisions has added the general requirement that the books and records required by the act must be maintained in accordance with generally accepted accounting principles.  The new revisions also change the information required as part of the aggregate student loan servicing report to require the number of monthly payments required to repay the loan.

The modifications are subject to comment until July 25, 2018.  As with the first round, the revisions will not be effective until approved by the Office of Administrative Law and filed with the Secretary of State.

On June 26, 2018, the Federal Trade Commission and New York Attorney General’s Office filed a lawsuit against a debt broker, debt collector and their principals to shut down a phantom debt collection scheme.  According to the complaint, debt broker Hylan Asset Management LLC and its owner, Andrew Shaevel, purchased, placed for collection, and sold phantom debts.  The complaint alleges that Hylan knew that the debts were fabricated because they were purchased from Hirsch Mohindra and Joel Tucker, two individuals who were previously sued by the FTC.  As a result of those actions, Mohindra was banned from the debt collection business and from selling debt portfolios and Tucker was banned from handling sensitive financial information about consumer debts.

The lawsuit also charges a debt collector, Worldwide Processing Group, LLC and its owner Frank Ungaro, Jr. for their role in collecting these phantom debts. The complaint alleges that Worldwide and Ungaro engaged in illegal collection practices and similarly knew that the debts were fabricated.

Hylan and Shaevel are charged with violating the FTC Act by marketing and distributing counterfeit and unauthorized debts.  Worldwide and Ungaro are charged with violating the FTC Act by making false or misleading representations that the consumers owe debts.  Worldwide and Ungaro are additionally charged with violating the Fair Debt Collection Practices Act by making false, deceptive, or misleading representations to consumers, engaging in unlawful communications with third parties, and failing to provide statutorily-required notices.

All of the defendants, including those individually named, are charged with violations of New York General Business Law § 349 by engaging in deceptive acts or practices in connection with conducting their debt sales and collection businesses, along with violations of New York State Debt Collection Law by engaging in prohibited debt collection practices under the statute, including, disclosing or threatening to disclose information affecting the debtor’s reputation for credit worthiness with knowledge or reason to know that the information is false and claiming, or attempting to enforce a right with knowledge or reason to know that the right does not exist.

This lawsuit is part of the FTC’s and State Attorneys General continuing efforts to crackdown on phantom debt schemes.

Politico has reported that on July 19, the Senate Banking Committee will hold a hearing on President Trump’s nomination of Kathy Kraninger to serve as CFPB Director.  While we find this surprising, we continue to believe that she will not be confirmed by the full Senate until after the mid-term elections.

Politico also reported that on July 12, the Senate Banking Committee will hold a hearing on credit reporting agencies at which the witnesses will include Peggy Twohig, CFPB Assistant Director for Nonbank Supervision, and Maneesha Mithal, an Associate Director in the FTC’s Bureau of Consumer Protection.

The FTC has announced that beginning in September 2018, it will hold a series of 15 to 20 public hearings “on whether broad-based changes in the economy, evolving business practices, new technologies, or international developments might require adjustments to competition and consumer protection enforcement law, enforcement priorities, and policy.”

In advance of the start of the hearings, the FTC is seeking public comment on 11 topics that include:

  • The state of antitrust and consumer protection law and enforcement, and its development since the FTC’s 1995 “Global Competition and Innovation Hearings”
  • Competition and consumer protection issues in communication, information, and media technology networks
  • The  intersection between privacy, big data, and competition
  • The FTC’s remedial authority to deter unfair and deceptive conduct in privacy and data security matters
  • The consumer welfare implications associated with the use of algorithmic decision tools, artificial intelligence, and predictive analytics
  • The interpretation and harmonization of state and federal statutes and regulations that prohibit unfair and deceptive acts and practices
  • The FTC’s investigation, enforcement, and remedial processes

The FTC will accept comments on the 11 topics through August 20, 2018.  Comments can address one or more of the 11 topics generally, or can address them with respect to a specific industry.  The FTC will also invite comments on the topic of each hearing.  It plans to issue a news release before each hearing with information about the agenda, date, and location, and with instructions on submitting comments.  In addition, it plans to invite public comment after the entire series of hearings is completed.

Among the purposes of the hearings and public comment process is to “stimulate thoughtful internal and external evaluation of the FTC’s near- and long-term law enforcement and policy agenda.”  The FTC has indicated that the hearings “may identify areas for enforcement and policy guidance, including improvements to the agency’s investigation and law enforcement processes, as well as areas that warrant additional study.”

 

An Executive Order issued by Washington Governor Jay Inslee on June 12, 2018 seeks to rebuff the U.S. Supreme Court’s ruling in Epic Systems LLC v. Lewis, 138 S. Ct. 1612 (May 21, 2018), by implementing new state procurement procedures that overtly discriminate against companies whose employment agreements contain arbitration provisions with class action waivers.  However, the Executive Order may be preempted by federal law.

Epic Systems held that class action waivers in employment arbitration agreements are valid and enforceable under the Federal Arbitration Act (FAA) and are not prohibited by the National Labor Relations Act.  Nevertheless, the Executive Order requires Washington State executive and cabinet agencies to “seek to contract with qualified entities and business owners that can demonstrate or will certify that their employees are not required to sign, as a condition of employment, mandatory individual arbitration clauses and class or collective action waivers.”

The preamble to the Executive Order makes clear that it is specifically targeted to avoid the application of Epic Systems.  It states that the “decision [Epic Systems] will inevitably result in an increased difficulty in holding employers accountable for widespread practices that harm workers,” that “collective power is a real force for change, as evidenced by the ‘Me Too’ movement” and, therefore, “it is incumbent on state agencies to make every effort to encourage and support employers who demonstrate that they value workers’ rights to collectively address workplace disputes.”  A statement by the Governor’s Office confirmed that the Executive Order is predicated on public policy considerations that are antithetical to Epic Systems:

In our state, we value companies that respect workers’ rights …. There is power in numbers.  There is power in transparency.  And there is power in our pocketbook to influence companies to do the right thing.  We can’t change the Supreme Court’s ruling but we can change how we do business.

The Executive Order states that it is effective “[t]o the extent permissible under state and federal law.”  Because the FAA preempts inconsistent state laws, the Executive Order may be preempted by federal law.  The FAA requires rigorous enforcement of arbitration agreements “‘according to their terms, including terms that specify with whom the parties choose to arbitrate their disputes and the rules under which that arbitration will be conducted.’”  Epic Systems, 138 S. Ct. at 1621, quoting American Express Co. v. Italian Colors Restaurant, 570 U.S. 228, 233 (2013).  As the Supreme Court held in AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 344  (2011):

States [cannot take steps that] … conflict with the FAA or frustrate its purpose to ensure that private arbitration agreements are enforced according to their terms …. States cannot require a procedure that is inconsistent with the FAA, even if it is desirable for unrelated reasons ….

The Executive Order is arguably preempted by federal law because it harnesses the economic power of Washington State to discriminate against companies that desire to enter into employment contracts containing arbitration agreements with class action waivers that the Epic Systems Court expressly declared to be lawful and enforceable in an opinion that is the law of the land.  Under substantive federal policy embodied in the FAA, states are forbidden from discriminating against arbitration or singling out arbitration agreements for special treatment.   See, e.g., Doctors’ Assoc., Inc. v. Casarotto, 517 U.S. 681, 687 (1996).  That could be the Achilles’ heel of the Executive Order, since it blatantly discriminates against certain companies based solely on the fact that their employment contracts contain arbitration agreements specifying “with whom the parties choose to arbitrate their disputes and the rules under which that arbitration will be conducted.”  In any event, we consider the Executive Order to be misguided since arbitration is more beneficial to individual employees than class action litigation.

The federal banking agencies (the Federal Reserve Board, OCC, and FDIC (FBAs)), recently issued a “Policy Statement on Interagency Notification of Formal Enforcement Actions” that is intended “to promote notification of, and coordination on, formal enforcement actions among the FBAs at the earliest practicable date.”  The issuance of the policy statement follows the DOJ’s announcement last month of a new policy to encourage coordination among the DOJ and other enforcement agencies when imposing multiple penalties for the same conduct to discourage “piling on.”

The new policy statement recites that it is not intended as a substitute for routine informal communications among FBAs in advance of an enforcement action, including verbal notification of pending enforcement actions “to officials and staff with supervisory  and enforcement responsibility for the affected institution.”

The policy statement’s key instructions are:

  • When an FBA determines that it will take formal enforcement action against a federally-insured depository institution, depository institution holding company, non-bank affiliate, or institution-affiliated party, it should evaluate whether the action involves the interests of another FBA.  By way of example, the policy statement notes that an entity targeted by an FBA for unlawful practices might have significant connections with an institution regulated by another FBA.
  • If it is determined that one or more other FBAs have an interest in an enforcement action, the FBA proposing the action should notify the other FBA(s) at the earlier of the FBA’s written notification to the targeted entity or when the responsible agency official or group of officials determines that enforcement action is expected to be taken.
  • The information shared should be appropriate to allow the other FBA(s) to take necessary action in examining or investigating the entity over which they have jurisdiction
  • If two or more FBAs is considering bringing a complementary action, such as an action involving a bank and its parent holding company, those FBAs should coordinate the preparation, processing, presentation, potential penalties, service, and follow-up of the enforcement action.

We view the new policy statement as a very positive development.

The U.S. Department of Housing and Urban Development (HUD) has issued an advance notice of proposed rulemaking (ANPR) seeking comment on whether its 2013 Disparate Impact Rule (Rule) should be revised in light of the 2015 U.S. Supreme Court ruling in Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc. 

On July 19, 2018, from 12:00 p.m. to 1:00 p.m. ET, Ballard Spahr attorneys will hold a webinar, “HUD’s Reconsideration of its Disparate Impact Rule: Background, Analysis and Potential Implications.”  Click here to register.

The ANPR provides an important opportunity for the mortgage industry and other interested parties to address whether the Rule reflects the limitations outlined by the Supreme Court in Inclusive Communities and other concerns with the Rule.  Comments on the ANPR must be filed by August 20, 2018.

The Rule provides that liability may be established under the Fair Housing Act (FHA) based on a practice’s discriminatory effect (i.e., disparate impact) even if the practice was not motivated by a discriminatory intent, and that a challenged practice may still be lawful if supported by a legally sufficient justification.  Under the Rule, a practice has a discriminatory effect where it actually or predictably results in a disparate impact on a group of persons or creates, increases, reinforces, or perpetuates segregated housing patterns because of race, color, religion, sex, handicap, familial status, or national origin.  The Rule also addresses what constitutes a legally sufficient justification for a practice, and the burdens of proof of the parties in a case asserting that a practice has a discriminatory effect under the FHA.

While the Supreme Court held in Inclusive Communities that disparate impact claims may be brought under the FHA, it also set forth limitations on such claims that “are necessary to protect potential defendants against abusive disparate impact claims.”  In particular, the Supreme Court indicated that a disparate impact claim based upon a statistical disparity “must fail if the plaintiff cannot point to a defendant’s policy or policies causing that disparity” and that a “robust causality requirement” ensures that a mere racial imbalance, standing alone, does not establish a prima facie case of disparate impact, thereby protecting defendants “from being held liable for racial disparities they did not create.”  Significantly, while Inclusive Communities held that liability may be established under the FHA based on disparate impact, the district court subsequently dismissed the disparate impact claim against the Texas Department of Housing and Community Affairs based on the limitations on such claims prescribed by the Supreme Court in its opinion.

In the ANPR, HUD notes that in response to a notice it published in the Federal Register in May 2017 inviting comments to assist HUD’s identification of outdated, ineffective, or excessively burdensome regulations, it received numerous comments both critical and supportive of the Rule and taking opposing positions on whether the Rule is inconsistent with Inclusive Communities.  HUD also notes that in a report issued in October 2017, the Treasury Department recommended that HUD reconsider applications of the Rule, particularly in the context of the insurance industry.  (We have previously reported on a challenge to the Rule by the American Insurance Association and National Association of Mutual Insurance Companies in D.C. federal district court.)

The ANPR contains a list of 6 questions of particular interest to HUD.   Issues addressed in the questions include the Rule’s: burden of proof standard and burden-shifting framework; the definition of “discriminatory effect” as it relates to the burden of proof for stating a prima facie case; and the causality standard for stating a prima facie case.

Although Inclusive Communities did not resolve the question of whether disparate impact claims are cognizable under the Equal Credit Opportunity Act (ECOA), HUD’s approach to the Rule could have significance for ECOA disparate impact claims.  Recent comments by CFPB Acting Director Mick Mulvaney that the CFPB plans to reexamine ECOA requirements in light of Inclusive Communities suggest that the CFPB might review references to the effects test in Regulation B (which implements the ECOA) and the Regulation B Commentary.  In doing so, the CFPB might consider not only whether such references should be eliminated but also, if they are retained, what safeguards should apply.  As a result, changes to the Rule made by the FHA could impact the CFPB’s approach to ECOA liability.

 

 

 

 

The California Department of Business Oversight (DBO) has published modifications to its proposed regulations under the State’s Student Loan Servicing Act.  As previously covered, the DBO published notice of its initial proposed rules on September 8, 2017.  A blackline of the changes is available here.

The initial regulations mandated extensive customer service obligations.  Among other things, the regulations required that a servicer post a plain language description of the repayment and loan forgiveness options available for federal student loans on its website, with links to specified Department of Education resources.  The initial regulations also required this same repayment and loan forgiveness information be sent to each borrower, with the servicer’s toll-free customer service telephone number, at least once per calendar year (i.e., an “annual notice”).  The initial regulations provided similar requirements for a servicer of private student loans, with the added requirement that a private student loan servicer establish policies and procedures to ensure the provision of accurate private student loan repayment arrangement information and consistent presentation of those arrangements to similarly situated borrowers.  The initial regulations also provided requirements for handling borrower inquiries (“Qualified Written Requests”).  All communications were required to be sent according to the borrower’s preferred method of communication.

The proposed modifications:

  • clarify that only a servicer of federal student loans must post information about federal repayment and forgiveness options on its website or in its annual notices
  • permit a servicer of private student loans to provide information about repayment options customized to the borrower by eliminating the requirement that servicers must prominently post information about “any alternative repayment plan” for the student loans it services on its website homepage (though private loan servicers must still provide an annual notice);
  • allow a servicer to provide information about repayment and loan forgiveness options through links on its homepage, instead of aggregating the information on the homepage.
  • create a new rule that private student loan servicer representatives available at the servicer’s toll-free number must be “fully trained about, inform and discuss with callers, any alternative repayment plan offered by the servicer or promissory note holder” for the private student loan(s);
  • provide that annual notices may be sent with any other annual communications;
  • require that borrowers who do not consent to electronic communications receive communications through the U.S. Postal Service and, only if undeliverable, through email; and
  • create a new rule (that is somewhat ambiguous) that a servicer is only required to send a borrower a total of three notices stating that there will be no response to a Qualified Written Request because the borrower has previously submitted the same request, received a response, and provided no new information in its subsequent, duplicative Qualified Written Request.

The initial regulations also established payment requirements, including that a servicer credit any electronic payment on the day “electronically paid by the borrower” if received before a posted cut-off time and that a servicer credit physical payments on the day received.  The initial regulations also mandated that account information reflect payments within three days and be available to the borrower via a secure log-in system with a consolidated report of the borrower’s transaction history.

The proposed modifications:

  • clarify that, for payments (primarily, if not exclusively, paper checks) received without payment instructions, a servicer has a reasonable period of time (not to exceed ten business days) to research and apply the payment and update a borrower’s account; and
  • revise the rule regarding co-signers to require that a servicer provide a process for co-signers to follow to check to be sure that co-signer payments are credited only to the loan(s) the co-signer has co-signed.

The initial regulations provided that a servicer must maintain a current student loan servicing report (a record of all loans being serviced) including, with respect to each student loan serviced: the borrower’s name; the number of student loans serviced for each borrower; the loan number for each loan; the loan type; the origination amount; the interest rate(s) and maturity date for each loan; the loan balance and status for each loan; the cumulative balance owing for each borrower; whether a borrower has an application pending for, or is repaying under, an alternative repayment plan, listing the plan chosen; and whether the borrower has an application pending for any loan forgiveness benefit.  For each individual loan, the servicer must also maintain borrower records, including the borrower’s application, agreement, qualified written requests, and other disclosures and statements provided to the borrower.  The initial regulations also provided specific technical requirements for electronic document storage.

The proposed modifications:

  • clarify that servicers may provide the required aggregated servicing information through reports segregated by loan type;
  • revise the recordkeeping rule to require that a servicer maintain records for three years after pay off, assignment, or transfer unless a contract requires a shorter period; and
  • eliminate the specific optical image reproduction and electronic record storage requirements of Section 2056(b).

The initial rules also provided a variety of miscellaneous rules regarding licensing (including provisions requiring a servicer to submit policies and procedures related to borrower protection requirements) and account management.

The proposed modifications:

  • remove the requirement that a servicer appoint the Commissioner as their agent for service of process;
  • provide that, between regulatory examinations, a servicer need not submit changes to their policies and procedures related to borrower protection requirements; and
  • delete the rule requiring monthly reconciliations of trust accounts.

The modifications are subject to comment until June 18, 2018 and will not be effective until approved by the Office of Administrative Law and filed with the Secretary of State.  The short comment period suggests that the DBO intends to have the rules finalized by the effective date of the Student Loan Servicing Act, July 1, 2018.

Comptroller of the Currency Joseph Otting appeared before the House Financial Services Committee yesterday and before the Senate Banking Committee today.

In his nearly identical written testimony submitted to both committees, Mr. Otting identified the following items as his priorities as Comptroller: modernization of Community Reinvestment Act (CRA) regulations; encouraging banks to meet consumers’ short-term, small-dollar credit needs; enhancing supervision of Bank Secrecy Act/anti-money laundering compliance and making it more efficient; simplifying regulatory capital requirements; and reducing burdens associated with the Volcker Rule.

CRA modernization was a focus of many of the Democratic lawmakers on both committees.  In his written testimony, Mr. Otting stated that that the federal banking agencies (presumably the OCC, Fed and FDIC) are discussing an Advanced Notice of Proposed Rulemaking to solicit comments on how best to modernize CRA regulations.  In his written and live testimony, Mr. Otting voiced his support for a new CRA framework that would (1) expand the types of activities that qualify for CRA consideration (e.g. to include small business lending and opportunities for consumers to access short-term, small dollar loans), (2) revisit the concept of assessment areas to broaden it beyond branches and deposit-taking ATMs, and (3) use a metrics-driven approach to evaluating CRA performance to increase public transparency and reduce subjectivity in examiner ratings.

In their questioning of Mr. Otting, Democratic lawmakers expressed skepticism about the CRA changes outlined by Mr. Otting, suggesting that they would allow banks to be less responsive to the needs of minority communities and questioning whether Mr. Otting has sufficient awareness of and concern about banks engaging in discrimination against minorities.

Another focus of Democratic lawmakers on both committees was the “horizontal reviews” of bank sales practices conducted by the OCC at more than 40 national banks in 2016-2017.  According to Mr. Otting, the OCC reviewed between 500 million and 600 million new accounts opened in a three-year span and found 20,000 accounts that lacked proof of authorization or had other issues resulting in 252 “matters requiring attention.”  He indicated that the OCC’s review had not revealed any “pervasive or systemic” issues concerning improper account openings but did show a need for banks to improve their policies, procedures, and controls.

Other issues discussed at the hearings included the following:

  • Special purpose national bank (SPNB) charter.  Lawmakers at the House hearing questioned Mr. Otting about the OCC’s proposal to issue SPNB charters to fintech companies.  Mr. Otting repeated his recent statement that the OCC would announce its decision on the proposal next month.  Lawmakers also noted the concerns that have been raised by comments reportedly made by Mr. Otting regarding “rent-a-charter” arrangements between banks and non-bank entities.  Mr. Otting indicated that, in light of the increasing number of banks partnering with fintech companies, the OCC was open to developing guidance to address such partnerships.
  • Short-term, small dollar loans.  Mr. Otting was questioned about the bulletin issued by the OCC last month to encourage its supervised institutions to make short-term, small dollar installment loans.  As we reported, the bulletin contained language about compliance with applicable state law that was confusing or likely to cause confusion.  We observed that federal law (12 U.S.C. Section 85) governs the interest national banks can charge and authorizes banks to charge the interest allowed by the law of the state where they are located, without regard to the law of any other state.  We also called upon the OCC to clarify that it did not mean to suggest otherwise.  In response to a question from Republican Rep. Blaine Luetkemeyer about the meaning of the OCC’s language, Mr. Otting indicated that the OCC was not retreating from preemption and did not intend to suggest that national banks had to charge the interest permitted by the law of the borrower’s state rather than the interest permitted by the law of the bank’s home state. Mr. Otting expressed confidence that more banks would be entering into the market for short-term, small dollar installment loans.
  • Madden decision.  Mr. Otting was questioned about the Second Circuit’s Madden decision by Republican Senator Pat Toomey, who observed that the decision has resulted in a substantial reduction in credit access to consumers.  (In Madden, the Second Circuit ruled that a nonbank that purchases loans from a national bank could not charge the same rate of interest on the loan that Section 85 of the National Bank Act allows the national bank to charge.)  Mr. Otting agreed with Senator Toomey that the decision was wrong.  However, when asked by Senator Toomey what steps the OCC was taking to address the problems caused by Madden, Mr. Otting said only that the OCC had filed a brief disagreeing with the decision.  (Presumably, Mr. Otting was referring to the amicus brief filed by the Solicitor General and OCC with the U.S. Supreme Court expressing their view that the Court should deny the petition for certiorari filed by the Madden defendants  despite their view that Madden was wrongly decided.)

We have advocated for the OCC’s adoption of a rule providing that (1) loans funded by a bank in its own name as creditor are fully subject to Section 85 and other provisions of the National Bank Act for their entire term; and (2) emphasizing that banks that make loans are expected to manage and supervise the lending process in accordance with OCC guidance and will be subject to regulatory consequences if and to the extent that loan programs are unsafe or unsound or fail to comply with applicable law.  In other words, it is the origination of the loan by a national bank (and the attendant legal consequences if the loans are improperly originated), and not whether the bank retains the predominant economic interest in the loan, that should govern the regulatory treatment of the loan under federal law.

Republican Congressman Blaine Luetkemeyer, a member of the House Financial Services Committee, has sent letters to six agencies asking them to issue and publish statements concerning the effect and use of “agency statements-for example, guidance documents, supervisory letters or examination manuals—that have not gone through notice and comment rulemaking.”  One such letter was sent to the Federal Reserve Board and the other letter was sent to the FDIC, NCUA, SEC, OCC and CFPB.

In the letters, Rep. Luetkemeyer requests that, in such statements, the agencies affirm that agency statements that have not gone through notice and comment rulemaking “do not establish binding legal standards, and thus shall not be the basis of enforcement actions or supervisory directives, including but not limited to the issuance of ‘Matters Requiring Attention’ or ‘Matters Requiring Immediate Attention.'”

Rep. Luetkemeyer also requests that the agencies:

  • Clarify in their statements “that any failure to adhere to guidance shall not, directly or indirectly, form the basis of any other adverse supervisory determinations, such as ratings downgrades
  • Establish a standard practice by which any subsequently issued guidance includes a statement regarding the effect of the guidance consistent with the above limitations
  • Ensure that examiners are “appropriately educated about the use and role of guidance; and held accountable when guidance is applied inappropriately”

Rep. Luetkemeyer observes in the letters that greater clarity about the appropriate use and interpretation of guidance is needed because “[o]ver the years, a significant number of agency guidance, handbooks and circulars have been issued.  Almost none has been withdrawn or rescinded; similarly, almost none went through notice and comment rulemaking or was submitted to the Congress pursuant to the Congressional Review Act.”

In his letter to the five agencies, Rep. Luetkemeyer references the determination by the Government Accountability Office (GAO) that the Fed’s leveraged lending guidance was a rule for CRA purposes but was not submitted to Congress before it took effect.  Following that determination, the GAO determined that the CFPB’s bulletin on discretionary pricing by auto dealers was also a rule for CRA purposes.  The bulletin subsequently became the first guidance document to be disapproved by Congress pursuant to a joint CRA resolution.

In a statement issued about the signing of the CRA resolution by President Trump, the CFPB stated that the resolution’s enactment “clarifies that a number of Bureau guidance documents may be considered rules for purposes of the CRA, and therefore the Bureau must submit them for review by Congress.”  The CFPB also indicated that it plans to “confer with Congressional staff and federal agency partners to identify appropriate documents for submission.”