On June 23, the Supreme Court issued a decision in Collins v. Yellen, a case which concerned the Federal Housing Finance Agency (“FHFA”) and the two government sponsored enterprises (“GSEs”) which the FHFA regulates and currently holds in conservatorship—the Federal National Mortgage Association (“Fannie Mae” or “Fannie”) and the Federal Home Loan Mortgage Corporation (“Freddie Mac” or “Freddie”).  The case presented a challenge by a group of Fannie and Freddie shareholders to a provision of the conservatorship which has effectively precluded the GSEs from paying dividends to shareholders.  Among other things, the plaintiffs targeted the constitutionality of the protection from removal enjoyed by the FHFA’s Director, which allowed the President to remove the Director only “for cause.”  This provision mirrored the removal protection provided to the Director of the Consumer Financial Protection Bureau (“CFPB”) and which the Court invalidated in Seila Law.

The Supreme Court declined to strike down the challenged provision of the conservatorship, but it did invalidate the FHFA Director’s “for cause” removal protection.  Not only does this decision have clear ramifications for the FHFA and GSEs, but it also may preview issues relating to the legal status of decisions rendered by CFPB Directors during the period in which they were unconstitutionally protected from removal from office.


Continue Reading Supreme Court Finds FHFA For-Cause Removal Structure Unconstitutional; Decision May Have Implications for CFPB

On March 31, 2021, the Consumer Financial Protection Bureau (“CFPB”) rescinded a range of policy statements issued under the leadership of former Director Kathleen L. Kraninger.  These rescissions concerned one policy statement governing communications between institutions subject to CFPB supervision and their examiners, and seven policy statements issued during the COVID-19 pandemic to provide regulatory

On April 19, 2021, the CFPB issued an interim final rule (“rule”) aimed at preventing illegal evictions.  This measure is intended to support an eviction moratorium issued by the Centers for Disease Control and Prevention (“CDC”), which prevents landlords from evicting tenants for failing to pay rent when the tenant is unable to afford full payments and would likely be driven into homelessness or a shared living setting by the eviction.  The rule applies to debt collectors—as defined in the Fair Debt Collection Practices Act (“FDCPA”)—who are collecting debts for landlords.  Under the rule’s terms, such collectors must disclose the existence of the CDC moratorium and may not misrepresent tenants’ eligibility for protection under the moratorium.

Continue Reading CFPB Issues Rule Targeted at Preventing Illegal Evictions

On March 23, 2021, the CFPB submitted its report to Congress covering its administration of the Fair Debt Collection Practices Act (“FDCPA”) during 2020.  Because the CFPB shares responsibility for enforcing the FDCPA with the FTC, the report also describes the FTC’s activities relating to debt collection.  Notable developments include the effect of the COVID-19 pandemic on the debt collection industry and a description of the CFPB’s recently issued final debt collection rules.

Continue Reading CFPB Releases FDCPA Report to Congress Covering Debt Collection Activities in the Previous Year

On November 30, 2020, the Consumer Financial Protection Bureau (“CFPB” or “Bureau”) granted a no-action letter (“NAL” or “Letter”) to Upstart Network, Inc. (“Upstart”), a company that that has developed a model incorporating alternative data and machine learning for use in making credit underwriting and pricing decisions.  The NAL specifically addresses Upstart’s “automated model for making underwriting and pricing decisions with respect to applications by consumers for unsecured, closed-end loans.”  Under the terms of the NAL, the Bureau will not make supervisory findings or bring an enforcement action against Upstart under certain sections of the Equal Credit Opportunity Act and Regulation B or under the Bureau’s authority to prevent, unfair, deceptive, or abusive acts or practices (“UDAAPs”) concerning alleged discrimination on a prohibited basis arising from Upstart’s use of its model for making underwriting and pricing decisions on applications by consumers for unsecured, closed-end loans.  The CFPB updated its NAL Policy last year, and this Letter was issued consistent with those guidelines.  The NAL expires three years after the date of the Letter.  The NAL represents another step forward toward regulatory acceptance of the use of alternative data and machine learning models for credit underwriting.

Continue Reading The CFPB Issues Second No Action Letter to Facilitate the Use of Alternative Data and Machine Learning in Lending Decisions

Today, July 7, 2020, the Consumer Financial Protection Bureau (“CFPB”) released final amendments to its small-dollar lending rule published in November 2017 (the “2017 Rule”), specifically repealing the mandatory underwriting provisions of the rule.  The CFPB did not rescind or alter the payments provisions of the 2017 Rule, and instead ratified those provisions and will move forward to implement those provisions.  We address each aspect of the final amendments below.

Continue Reading CFPB Finalizes Amendments to Payday Lending Rule

On April 1, 2020, the Consumer Financial Protection Bureau (“CFPB”) released a statement on “Supervisory and Enforcement Practices Regarding the Fair Credit Reporting Act and Regulation V in Light of the CARES Act.” This statement provides guidance outlining the CFPB’s expectations of furnishers and consumer reporting agencies (“CRAs”) during the COVID-19 pandemic, and signals that the CFPB will take a flexible supervisory and enforcement approach to compliance with the Fair Credit Reporting Act (“FCRA”) and its implementing regulation, Regulation V.

The key points of the CFPB’s guidance are discussed below.
Continue Reading CFPB Releases Guidance on FCRA and Regulation V Compliance During COVID-19

On March 3, 2020, the U.S. Supreme Court heard oral arguments in Seila Law LLC v. Consumer Financial Protection Bureau, a case centered on the constitutionality of the Bureau’s leadership structure.  A transcript of the argument is available here, and an audio recording is available here.

Continue Reading U.S. Supreme Court Hears Arguments on Constitutionality of CFPB

On October 18, the Supreme Court granted certiorari in Seila Law v. Consumer Financial Protection Bureau (CFPB). The question presented before the Court is “whether the substantial executive authority yielded by the CFPB, an independent agency led by a single director, violates the separation of powers.”  In addition, the Court requested that the parties brief and argue an additional question: “If the Consumer Financial Protection Bureau is found unconstitutional on the basis of the separation of  powers, can 12 U.S.C. § 5491(c)(3) [the for-cause removal provision] be severed from the Dodd-Frank Act?”

Continue Reading Supreme Court Grants Certiorari in Seila Law v. Consumer Financial Protection Bureau

On September 17, Consumer Financial Protection Bureau (“CFPB”) Director Kathleen Kraninger sent letters to House Speaker Nancy Pelosi and Senate Majority Leader Mitch McConnell stating that the CFPB “has determined that the for-cause removal provision of the Consumer Financial Protection Act . . . is unconstitutional.”  The Bureau now affirms that the for-cause removal provision