Collector - July 2020 - 48

LASTWORD

What's Going on with the CFPB?
A former CFPB deputy director explains the bureau's current regulatory priorities and what
we can expect to see going forward.

T

he COVID-19 pandemic turned
everything on its head and, like
all of us, federal regulatory bodies
are trying to adapt. On an edition of the
Daily Huddle, ACA International's video
conference series launched in response
to the crisis, Brian Johnson, partner at
Alston & Bird LLP and former Consumer Financial Protection Bureau deputy
director, discussed some of the short- and
long-term emerging risks for the accounts
receivable management industry. This is
an edited excerpt from his presentation.
ADVISORY OPINION PROGRAM
A major initiative announced on March 6
that had been one of my top priorities is the
bureau's advisory opinion program. It hasn't
received a great deal of attention simply
because the formal launch of the program
will be sometime this fall, but in essence the
point of the policy is to create a demanddriven mechanism by which institutions can
seek formal guidance from the bureau that is
legally binding in the future.
Right now, any company can call in
informally and seek regulatory guidance
from the Office of Regulations. But
whatever opinion the company receives
is the opinion of just one attorney, not
the bureau itself. An advisory opinion is
a different proposition altogether. There
will be process for requesting an opinion
and the response will take the form of an
interpretive rule. [This will be a] formal
interpretation of a law or regulation applied
to the particular facts and circumstances
described by the company requesting the
opinion, and the bureau's advisory opinion

48

will be made public so that it can be relied
upon by all market participants. So, for lack
of a better term, over time the issuance of
these advisory opinions will form an agency
"common law."
What does this mean? All the areas where
there is a lack of clarity in terms of how the
bureau views the law can, over time, become
more clear. Greater transparency and
predictability in the bureau's actions will be a
win for industry and consumers alike, not to
mention the rule of law.

FINAL RULEMAKING FOR THE
DEBT COLLECTION INDUSTRY
I don't anticipate that the delay in the
comment period [for the supplemental
NPRM on out-of-statute debt] will alter
the end date on which the bureau is
expected to finalize the entire rule. I would
expect that the bureau will be able to
incorporate whatever revisions proposed
in the supplemental NPRM into the final
rule for the FDCPA more broadly. By
all accounts, the bureau seems to be on
a standard timetable for the purpose of
issuing the rules.

COVID-19 ISSUES
The CFPB is encouraging financial
institutions to work proactively with
borrowers and other affected customers to
address the issues that are arising from the
COVID-19 national emergency.
On March 26, the agency issued a
policy statement relating to flexibility for
examination and enforcement actions.
In counseling clients, I've received many
questions, essentially asking me: "To what

extent can these types of policy statements
be relied upon?"
The answer I have for you is it's still too
soon to tell. What I can say is that I believe
that the director's commitment behind these
statements is strong. The risk, of course, is
that after the pandemic subsides and life
returns to normal, an individual examiner or
enforcement attorney may look retrospectively
at any issues that arose during the national
emergency and form an opinion that doesn't
align with the director's policy statements. It
will be a challenge for bureau senior leadership
to ensure that the policies are applied fairly and
evenly over the next several years.
Anecdotally, I've seen some evidence that
there may already be a disconnect between
the director's commitment and the actions
taken by some line staff.
To listen to the complete presentation, visit
www.acainternational.org/about/covid19#recordings.

Daily
Huddle
Daily Huddle Title: Perspective
From Former CFPB Deputy
Director
Participant: Brian Johnson, partner
at Alston & Bird LLP and former
CFPB deputy director
Air date: 4/24/2020

ACAINTERNATIONAL.ORG


http://www.acainternational.org/about/covid-19#recordings http://www.ACAINTERNATIONAL.ORG

Collector - July 2020

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