Source: TBA

In his Order, Judge Crane enjoined the CFPB from implementing and enforcing the Sec. 1071 Final Rule against the members of TBA and ABA, intervenors from the ICBA and IBAT, the Credit Union National Association, the Equipment Leasing and Finance Association, and all covered financial institutions pending the USSC’s rendering of its opinion in the Community Financial case on the constitutionality of the CFPB’s funding structure. “Defendants shall immediately cease all implementation or enforcement of the Final Rule against Plaintiffs and their members, Intervenors and their members, and all covered financial institutions.” As was the case in the original preliminary injunction, deadlines for compliance will be tolled until after the USSC issues its Community Financial decision.

Just headlines from credible sources. Not mis- or dis- information.

IMO, this is a huge win for the industry for the time being!

If anyone wants to read the full order, I found it at https://www.bloomberglaw.com/public...al/4?doc_id=X4OE7GFH9228909KMU4N0LJJP2C.

Enjoy, but don't make any significant decisions or operate heavy machinery immediately after reading.

Anyone read whether the stay is retroactive to the previous stay? Will the compliance dates be pushed back based on the first order or will there still be staggered compliance dates?

In addition to IR's question above, I'm also wondering, does this nationwide extension of the injunction also move out the date when institutions can legally begin collecting the information from customers? Do we need to worry about risk exposure from collecting the information too early (for those of us continuing with preparation to ensure we're ready if SCOTUS rules in favor of the CFPB & legislative effort fails)?

I was on BCC's 'A Look Back & What Lies Ahead' webinar yesterday and they brought this up. According to them, it does push back the compliance date for everyone by however long it takes the supreme court to make a decision. The compliance dates would still be staggered, but you'd get an extra x number of months from when you were initially supposed to begin collecting and reporting.

I was on an ABA monthly 1071 working group earlier this week, and gathered the same as you did.

I meant are they staggered between ABA members to non-ABA members. ABA stay is from 7/31 until there is an SC decision. Does the more recent order pull everyone into that or does it create a new stay running from the October? Assuming a January decision, ABA members would be able to push their compliance dates about 5 months. Will everyone get that or will non-ABA only be able to push their compliance dates 2-3 months?

According to the BCC webinar, it brought everyone into the stay. The webinar was recorded and free if you are interested in their take.

Does anyone know when the resolution is supposed to be on the President's desk to sign? I can't find any updated information on if he still plans to veto it or not. Thanks!

He has stated he will veto it.

As promised, Biden vetoed S.J. Res. 32 yesterday (https://www.reuters.com/world/us/bi...pbs-small-business-loan-rule-2023-12-19/).

No surprise there. But the rule is still subject to the injunction against enforcement from the Federal District Court for the Southern District of Texas pending a ruling by SCOTUS on the constitutionality of the Bureau's funding mechanism.

The US Supreme Court ruled that the CFPB's funding is constitutional in the CFPB vs CFSA case. https://www.supremecourt.gov/opinions/23pdf/22-448_o7jp.pdf

Compliance date extensions: Compliance Date Extensionshttps://www.consumerfinance.gov/1071-rule/

I have not read this yet. We are in Tier 3 - will we still be looking at loans made in 2022 to determine when we begin reporting?

Might need to wait for: The CFPB now plans to issue an interim final rule to extend compliance deadlines.

Not sure why the lookback periods would not change also.

It really depends on whether the CFPB also changes more than just the compliance and first reporting dates in section 1002.114. If they push the effective date of August 29, 2023, back 290 days, it will change to June 14, 2024 (they didn't mention changing that date in the information posted on their "1071 rule" page). Theoretically they could still use loan activity in 2022 and 2023 to determine tier levels, etc. But they could also change the base years to 2023 and 2024, since the earliest of the revised compliance dates will be July 18, 2025.

I imagine the folks at the Bureau are mulling that all over before they issue the interim final rule.

We will have to wait and see.

The Order of the U.S. District Court for the Southern District of Texas, McAllen Division, requires the Bureau to adjust the compliance dates in the regulation for the period of the stay, which was 290 days. The effective date of the regulation is essentially meaningless. So it will be possible that the Bureau will leave that alone, and not change the years 2022 and 2023 as the period during which covered loans are to be counted to determine whether a bank is covered and, if so, what tier it belongs to.

But I think the Bureau will change those years to 2023 and 2024 to make the determination of coverage and tier based on more current data.

I don't know why I am stumbling on this but I keep seeing "Final Rule" but when I go to CFPB page on 1071 I see 'interim' final rule. Is it final or interim?? Sorry, just looking for a clear answer.

The latest release is found here: https://www.consumerfinance.gov/rul...ulation-b-extension-of-compliance-dates/

It includes a request for comments.

The rule itself I believe is final (Well, as final as any final rule gets). Just the implementation dates are being discussed.

Thank you. So banks should plan on gearing up with the implementation dates mentioned in the final rule based on what implementation size they are? Is that "pretty well expected" to be firm dates I guess?

Unless, through the comments received, someone makes a good argument against those dates and the agencies agree, I would say yes, barring any additional court challenges of course.

I will be curious if the Chevron ruling will have an impact with this case.

As to the data points to be collected, Congress gave the CFPB the kind of authority that would not be impacted by this decision:

"any additional data that the Bureau determines would aid in fulfilling the purposes of this section."

"any additional data that the Bureau determines would aid in fulfilling the purposes of this section."

Right, but the CFPB might have to justify their selection of data points in the courts now.

They would have had to justify their selection even under Chevron. They would have had to show that their selection of data points was based on a reasonable interpretation of the statute.

In the PHH decision, the DC Circuit invalidated the CFPB's position on RESPA Section 8 and captive reinsurers even after applying the Chevron analysis. The court said they failed step 1 because the statute was clear (and the CFPB was clearly wrong), but said that even if they didn't fail step 1 and received deference, the CFPB's interpretation of the statute was not a reasonable one.