August 18, 2018

August 17, 2018

Subscribe to Latest Legal News and Analysis

August 16, 2018

Subscribe to Latest Legal News and Analysis

Bill to Require Issuance of Guidance by CFPB Introduced in House

A recent bill introduced in the US House of Representatives would require the CFPB to issue guidance on federal consumer financial laws, and also provide a framework for civil money penalties.  H.R. 5534 would create the Give Useful Information to Define Effective Compliance Act or GUIDE Compliance Act.  The bill was introduced by Representative Sean Duffy (R-WI) and is co-sponsored by Representative Ed Perlmutter (D-CO).

The Act would require the CFPB Director to “issue guidance that is necessary or appropriate to enable the Bureau to carry out Federal consumer financial law, including facilitating compliance with such law.”  For purposes of the Act, “guidance” is defined as “any written interpretive or legislative rule, interim final rule, bulletin, statement of policy, letter, examination manual, frequently asked question, or other document issued by the Bureau regarding compliance with a Federal consumer financial law that is exempt from notice and comment rulemaking requirements under section 553(b) of [the Administrative Procedure Act,] title 5, United States Code.”  The Act does not provide any parameters on specific laws or issues that the CFPB should address, or the nature of the guidance provided.  The Act would require that a proposed rule be published within one year of the date that the Act becomes law, with a final rule being published within 18 months of that date.  The Act also would provide that no person could be held liable for any act done or omitted in good faith in conformity with CFPB guidance.

At least some of the guidance that the Act would require would trigger the ability of Congress to consider the guidance under the Congressional Review Act (CRA).  We previously addressed the ability of Congress under the CRA to address not only federal agency actions structured as rules, but also guidance issued by such agencies that rises to the level of a rule within the purview of the CRA.

The Act also would require the CFPB to publish within 18 months of the date the Act becomes law a proposed rule establishing guidelines for determining the size of any civil money penalties issued by the CFPB “based on the severity of the actionable conduct in violation of a Federal consumer financial law and the level of culpability.”  The final rule would need, “to the fullest extent possible, align with any chart, matrix, rule, or guideline published by the Office of the Comptroller of the Currency, the Federal Deposit Insurance Corporation, or the Board of Governors of the Federal Reserve System.”

The Act would address calls from various industry members that the CFPB issue authoritative guidance on rules, and provide a framework for the imposition of civil money penalties.  While the Act would require that the framework for civil money penalties conform with the framework of the federal banking agencies, as noted above there are no parameters set forth for any guidance on consumer financial laws that is issued by the CFPB.  To some this evokes the adage, be careful what you wish for, you may get.

Copyright © by Ballard Spahr LLP

TRENDING LEGAL ANALYSIS


About this Author

Richard J. Andreano, Jr. , Ballard Spahr Law Frim, Washington DC,  Business and Finance attorney, Mortgage Banking, Consumer Financial Services, Fair Lending

Richard J. Andreano, Jr., is the Practice Leader of Ballard Spahr's Mortgage Banking Group. He has devoted 30 years of practice to financial services, mortgage banking, and consumer finance law.

Mr. Andreano advises banks, lenders, brokers, home builders, title companies, real estate professionals, and other settlement providers on regulatory compliance and transactional matters, Federal Housing Administration (FHA) issues, and administrative examinations, enforcement actions and investigations. He also works with litigation counsel on devising strategies for defense of class action...

202.661.2271