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The Consumer Financial Protection Bureau (CFPB or Bureau) recently released its semi-annual regulatory agenda, outlining its planned rulemaking initiatives. The CFPB releases regulatory agendas twice a year in voluntary conjunction with a broader initiative led by the Office of Budget and Management to publish a Unified Agenda of Regulatory and Deregulatory actions across the federal government. This agenda includes a mix of rules in the pre-rulemaking, proposed rule, and final rule stages, covering a wide range of topics from mortgage closing costs to financial data transparency. The CFPB has not yet posted a blog or issued a press release about the agenda.

Final Rule Stage:

• Registry of Supervised Nonbank Covered Persons. As discussed here, this rule will require supervised nonbank entities to provide information about their use of certain terms and conditions in standard-form contracts. The CFPB would then compile this information into a registry available to the public. Multiple industry associations have expressed their collective displeasure with the idea, and the rule is expected to face legal challenges once finalized.
• Nonbank Registration of Enforcement Orders. In June 2024, the CFPB issued its final rule requiring covered nonbanks to register public orders (going back to 2017) issued by agencies and courts with the CFPB. And, as discussed here, not only will the CFPB publish the orders, but a large subgroup of nonbanks will have to certify on a yearly basis their full compliance with the orders or make a self-disclosure to the CFPB of any compliance failures.
• Overdraft Programs. Scheduled for January 2025, this rule, which only applies to large financial institutions with assets over $10 billion, aims to regulate overdraft services by altering the definition of “finance charge,” effectively subjecting these institutions to Regulation Z’s disclosure and substantive provisions. An in-depth analysis of the rule is available here.
• Personal Financial Data Rights. Expected in October 2024, the rule issued under § 1033 of the Consumer Financial Protection Act of 2010 would require depository and nondepository entities to make available to consumers and authorized third parties certain data relating to consumers’ accounts, establish obligations for third parties accessing a consumer’s data, and provide basic standards for data access. Highlights of the rule are discussed here.
• Supervision of Larger Technology Companies Offering Digital Wallets and Payment Apps. Expected in September 2024, this rule, discussed here, would allowthe CFPB to supervise large nonbanks that provide peer-to-peer (P2P) payments, funds transfers, or wallet functionalities through a digital payment application.
• Instantaneously Declined Transactions. This rule, discussed here, aims to prohibit covered financial institutions from charging consumers nonsufficient funds (NSF) fees on transactions that are declined instantaneously or near instantaneously. The final rule is expected in October 2024.
• Automated Valuation Model (AVM) Rule. The final rule, issued in June 2024, mandates that mortgage originators and secondary market issuers that use AVMs to determine the value of mortgage collateral adhere to certain quality control standards (discussed here).
• Property Assessed Clean Energy (PACE) Financing. A PACE loan is a way for consumers to borrow money for home improvements by increasing their property tax payments. Scheduled for May 2025, the rule would require lenders to assess a borrower’s ability to repay a PACE loan and would provide a framework for how these loans will be treated under the Truth in Lending Act. Specifically, as discussed here, it would adjust disclosure requirements in an attempt to help consumers understand the loans’ impact on their property tax payments.

Proposed Rule:

• Fair Credit Reporting Act (FCRA) Rulemaking. As discussed here, the CFPB is considering a proposal to regulate the activities of data brokers under the FCRA. This follows a previous proposal to eliminate the medical debt exemption in Regulation V and prohibit consumer reporting agencies from including medical debt in reports.
• Financial Data Transparency Act. This rule aims to establish data standards for the collection of information reported to each agency by financial entities under their jurisdiction, as required by the Financial Data Transparency Act.
• Regulation AA. An unexpected item on the CFPB’s agenda. Originally a set of Federal Reserve rules that banned certain aggressive collection provisions in banks’ credit contracts, Regulation AA was repealed nearly a decade ago following the establishment of the CFPB. The agenda item suggests that the CFPB is considering whether to issue regulations regarding the inclusion or enforcement of certain provisions in contracts for consumer financial products or services.
• Streamlined Mortgage Servicing. As discussed here, the CFPB recently proposed new and, in some cases, streamlined rulesgoverning what mortgage servicers must do after a borrower becomes delinquent. The proposal seeks to amend Regulation X by streamlining existing loss mitigation requirements, limiting the fees a servicer can charge a borrower while reviewing loss mitigation options, adding procedural guardrails concerning foreclosure, amending certain early intervention requirements, and requiring that certain mortgage servicing communications be provided to a borrower in non-English languages.

Prerule Stage:

• Mortgage Servicing. According to the agenda, the CFPB is considering rulemaking or guidance to address mortgage refinancing and closing costs imposed by lenders on homebuyers and homeowners.

Our Take:

The CFPB’s Spring 2024 regulatory agenda signals a busy and potentially transformative period for the financial services industry. The finalization of the Registry of Supervised Nonbank Covered Persons and the modernization of overdraft program regulations are likely to be contentious and closely watched. The proposed revival of Regulation AA adds an element of uncertainty, as it could lead to significant changes in how consumer financial contracts are regulated.

While the CFPB’s intentions are clear, the political landscape and recent judicial decisions, such as the U.S. Supreme Court’s rulings in Loper Bright v. Raimondo and Relentless v. Department of Commerce could complicate the Bureau’s rulemaking efforts. The end of Chevron deference means that courts will scrutinize the CFPB’s regulatory interpretations more rigorously, potentially leading to legal challenges. Moreover, the ultimate outcome of this rulemaking agenda could be influenced by the upcoming presidential election, with potential delays or modifications if there is a shift in political power.