Focus on Fintech: CFPB wants state and federal financial regulators to get behind its enforcement agenda | Eversheds Sutherland (US) LLP

The CFPB is the primary regulator of consumer financial products and services in the United States, but other state and federal regulators also have the authority to enforce some federal consumer financial protection laws. The CFPB is now focused on bringing enforcement efforts by these agencies in line with the CFPB’s approach and encouraging states to become more active. In short, the CFPB wants states and other federal financial regulators to put muscle behind the CFPB’s enforcement goals.

To that end, the CFPB has announced plans to issue periodic guidance to state and federal consumer financial regulators on how it plans to enforce the laws and regulations it administers. In the announcement, the CFPB indicated that the move is intended to address “inconsistent enforcement strategies and approaches” and level the playing field between banks and non-banks, which have different regulators but often compete with each other with certain similar financial services offerings.

The CFPB guidance documents, billed as Consumer Financial Protection Circulars, will be published on the agency’s website and in the Federal Register. The CFPB has not announced the topics of the circular, saying only that it is “beginning to identify issues that would benefit from clear and consistent enforcement.” However, we expect early topics to include those recently addressed by the CFPB, such as “junk” fees, student loan servicing, and credit reporting.

In a related move, the CFPB issued two interpretive rules on May 19 and June 28 intended to clarify the scope of states’ authority to enforce state and federal consumer financial protection laws and encourage them to exercise that authority. The May 19 rule covers general enforcement authority under section 1042 of the Dodd-Frank Act, which authorizes states (after consultation with the CFPB) to enforce the Dodd-Frank Act and any of the other 18 federal consumer protection laws that the CFPB administers (the listed consumer protection laws) , as well as any related rules that the CFPB issues. The June 28 rule notes that states have “considerable flexibility” to combat problematic credit reporting practices by enforcing their own fair credit reporting statutes, which, the CFPB notes, may be more protective of consumers than the federal Fair Credit Reporting Act (FCRA). . The FCRA only preempts state statutes that conflict with its provisions or fall into one of a few narrow categories of state statutes expressly provided for.

In the May 19 Commentary to the Interpretive Rule, the CFPB notes that while several states have pursued enforcement actions under the listed consumer protection laws jointly with the CFPB, few have done so on their own. The interpretive rule seeks to clarify for states their ability to bring lawsuits both independently of the CFPB and concurrently with the CFPB, including for violations that the CFPB does not pursue.

Of particular note is the May 19 interpretive rule’s emphasis on states’ authority to enforce section 1036 of the Dodd-Frank Act, which prohibits covered persons from engaging in unfair, deceptive, or abusive acts or practices. Using this broad authority, states can engage in conduct that may not violate an express provision of law, but is nonetheless harmful to consumers.

In addition, both interpretive rules encourage state regulatory agencies to follow specific conduct that the CFPB cannot because of limitations or omissions in the federal statutes it administers. The May 19 interpretive rule asserts that express limitations on the CFPB’s enforcement authority over participants in certain industries, such as motor vehicle dealers, real estate agents, accountants, attorneys, and dealers in manufactured and modular homes, do not apply to states. The June 28 rule emphasizes states’ ability to limit the inclusion of unpaid medical debt on consumer credit reports. These comments may be aimed at encouraging states to focus on issues the CFPB has recently identified in the retail sales and financing of vehicles and RVs and medical debt reporting.

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