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CFPB amends service provider guidance

Posted in CFPB Enforcement, CFPB Supervision

The CFPB has reissued its guidance on service providers which was formerly titled CFPB Bulletin 2012-03, and as published in the Federal Register on October 26, 2016, is now titled “Compliance Bulletin and Policy Guidance 2016-02.”

The reissued guidance includes an amendment that the CFPB described as “needed to clarify that supervised entities have flexibility [in their risk management program for service providers] and to allow appropriate risk management.”  The amendment consists of the addition of the following language to the guidance:

The Bureau expects that the depth and formality of the entity’s risk management program for service providers may vary depending upon the service being performed-its size, scope, complexity, importance and potential for consumer harm – and the performance of the service provider in carrying out its activities in compliance with Federal consumer financial laws and regulations.  While due diligence does not provide a shield against liability for actions by the service provider, it could help reduce the risk that the service provider will commit violations for which the supervised bank or nonbank may be liable, as discussed above.

(The words “as discussed above” in the added language refer to the section of the guidance that indicates a supervised bank or nonbank can also have liability for a service provider’s noncompliance.)

Although other CFPB Bulletins were published in the Federal Register, it appears that the CFPB did not previously publish Bulletin 2012-03 when it was issued.  Accordingly, similar to other published bulletins, Compliance Bulletin and Policy Guidance 2016-02 contains a section on regulatory requirements stating that the Compliance Bulletin and Policy Guidance is exempt from notice and comment rulemaking requirements under the Administrative Procedure Act because it “is a non-binding general statement of policy articulating considerations relevant to the Bureau’s exercise of its supervisory and enforcement authority.”


Cordray remarks to MBA signal continued CFPB focus on servicing, likely petition for rehearing in PHH case

Posted in Mortgages

In his remarks at the Mortgage Bankers Association’s annual meeting in Boston on October 25, Director Cordray signaled that mortgage servicing will continue to be a focus of CFPB supervisory and enforcement activity, with the CFPB taking a rigorous approach to compliance.  

While noting that the CFPB has seen “some progress” in compliance with CFPB mortgage servicing rules,” most notably efforts by certain servicers to adequately staff up effective compliance management programs,”  Director Cordray stated that “many troubling issues persist.”  In particular, he pointed to “[o]utdated and deficient servicing technology [that]continues to put many consumers at risk,” and said “[t]his problem is made worse by a lack of training to use their technology effectively.”  He also observed that “[t]hese shortcomings can become chronic when servicers do not implement proper system testing and auditing processes.”   Director Cordray warned servicers that “[t]o spur” improved compliance, the CFPB “will, in appropriate circumstances, be insisting on specific and credible plans from servicers describing how their information technology systems will be upgraded and improved to resolve these issues effectively.”

Director Cordray gave a more positive message when discussing lender compliance with the final TILA-RESPA Integrated Disclosure rule.  He commented that he was “happy to report that our initial examinations seem to indicate, just as we expected, that lenders did in fact make good faith efforts to comply with the rules and generally we are finding that consumers are receiving timely and accurate Loan Estimates and Closing Disclosures.”

We have previously commented that, in our view, the CFPB is likely to seeking a rehearing of the D.C. Circuit’s decision in PHH Corporation v. CFPB by the November 25th deadline.  In his remarks, Director Cordray appeared to confirm that a CFPB petition for rehearing is likely.  He stated that “[t]he case is not final at this point” and that the CFPB “has made clear that it respectfully disagrees with the panel’s decision and is considering its options for seeking further review.”

Director Cordray also emphasized the need for companies to give “careful attention” to customer complaints.  He reminded companies of the CFPB’s use of complaints, stating that “[b]y closely analyzing complaint patterns, we can identify spikes in specific complaint types, emerging trends, issues with new and evolving products, and patterns across geographic areas, companies and consumer demographics.”  He told companies that they should “be doing the same thing, not only with our complaints and the feedback you receive directly from your own customers, but also by reviewing complaints made about others in the same markets.”





Cordray remarks/CFPB report on financial innovation and Project Catalyst include warning on limiting consumer access to financial data

Posted in Technology

In a new report, the CFPB discusses its approach to FinTech and financial innovation, its Project Catalyst initiative, and marketplace developments the CFPB views as potentially beneficial for consumers.  The report, entitled “Project Catalyst report: Promoting consumer-friendly innovation-Innovation Insights,” was released in conjunction with remarks given by Director Cordray at Money 20/20, a large conference focused on payments and financial services innovation.  Launched in November 2012, Project Catalyst is the CFPB’s initiative for facilitating innovation in consumer financial products and services.

In his remarks, Director Cordray responded to widespread criticism of the Bureau’s heavy-handed enforcement actions against start-ups, stating that the CFPB’s enforcement actions against FinTech providers “should not be misread or overstated.”  He stated that the CFPB is seeking to hold FinTech providers to the “same standards” and “same expectations” that apply to other providers of consumer financial products and services and is “not looking to punish anyone merely for raising novel issues that present unsettled points of law or questions that fall into unforeseen cracks in the regulatory framework.”  He described the CFPB’s enforcement actions to date as having “addressed basic meat-and-potatoes issues such as companies that promise one thing to their customers and do something quite different.”

In addition to reviewing Project Catalyst developments in his remarks, Director Cordray stated that the CFPB is “gravely concerned by reports that some financial institutions are looking for ways to limit, or even shut off, access to financial data rather than exploring ways to make sure that such access, once granted, is secure.”  His comments appear to be directed at institutions that have not permitted their customers to use third-party financial aggregators that allow consumers to compile their financial information from multiple banks in one digital setting.  In what seemed to be a warning, Director Cordray stated “Let me state the matter as clearly as I can here: We believe consumers should be able to access [their financial data from financial providers with whom they do business] and give their permission to third-party companies to access this information as well.”

Director Cordray’s remarks and the report indicate that, in the CFPB’s view, financial innovation offers both benefits and risks for consumers and requires the creation of  a “level playing field” for all market participants.  In the report, the CFPB provides examples of how new or improved financial products and services can benefit consumers, such as through expanded access, improved consumer control, and lower prices, but also warns that it “will take action as necessary to protect consumers from innovations that may be unfair, deceptive, abusive, or discriminatory.”  The “level playing field” comment appear to signal additional regulation and enforcement activity in the FinTech space, notwithstanding the Bureau’s repeated attempts to claim that it is not attempting to stifle financial innovation.

With regard to Project Catalyst, the report discusses the project’s goal of establishing effective communication channels with entrepreneurs and innovators, the CFPB’s efforts to coordinate with various state and federal regulatory agencies and international regulators, and its one-day “Office Hours” program held periodically throughout the year in San Francisco and New York “at which companies and other interested parties can engage directly with subject-matter experts at the Bureau.”

The report also reviews the CFPB’s trial disclosure waiver policy and its no-action letter policy.  (We have written about the no-action letter policy’s numerous shortcomings, including its failure to provide immunity against private litigation or enforcement actions by other federal and state government agencies.)  In addition, the report discusses various CFPB “research collaborations” such as its pilot program with American Express to evaluate the effectiveness of certain practices to encourage prepaid card users to develop regular saving behavior.

The last section of the report discusses various “marketplace developments that may hold the potential for consumer benefits.”  According to the report, Project Catalyst learned of these developments through its engagement with “a variety of Fintech and other market participants.”  Such developments include:

  • The development of cash flow management tools to help address the mismatch or time lag between expenses and income, such as services that enable an employee to access accrued wages earlier than his or her regular payday or deduct a portion of his or her wages and apply it to recurring payments to help the consumer with the mismatch of timing and frequency between when income is earned and when bills are due.
  • Efforts to develop compliant ways to incorporate non-traditional data sources and employ machine learning techniques in underwriting methods to expand access to credit.
  • The availability of personal financial management tools that allow consumers to allow third-parties to access their financial records.  (As noted above, Director Cordray, in his remarks, stated that the CFPB is concerned by reports that some financial institutions are looking for ways to restrict third-party access to financial data.  In the report, the CFPB states that the loss of such access “could cripple or even entirely curtail the further development of such products and services” and states that the CFPB “is interested in supporting the ability of consumers to access and share personal information about their own financial lives with others where they believe it is in their best interest to do so.”)
  • The entrance into the student loan market of FinTech companies that offer borrowers with high-rate student loans an opportunity to refinance at lower rates (with the CFPB noting that such companies “also report that certain practices by incumbent student loan servicers” may increase cost and present consumer risks, such as problems in obtaining accurate payoff balances from the originator.)
  • The attempt by several companies to adopt or build more modern technology platforms to improve mortgage loan servicing, such as the use of machine learning to detect at an earlier stage when borrowers are likely to suffer financial distress.
  • The development by FinTech firms of tools to improve consumer access to and understanding of their credit scores and history, such as streamlining the process for consumers to dispute errors on their credit reports directly.
  • Efforts to make peer-to-peer payments more consumer friendly, such as through the development of services that enable consumers to transfer money quickly at lower cost by relying on digital channels.
  • Offering of services that facilitate savings, such as services that help consumers determine how much they can afford to save based on their income and expenses and automate their savings.




MBA launches new networking platform for women

Posted in Diversity and Inclusion

Women in the real estate financing sector have a new opportunity to connect with others in their field and to access and exchange information about the industry.  On October 18, the Mortgage Bankers Association (MBA) announced the launch of mPower, a professional networking platform that aims to create “a strong, diverse network of women” in the real estate financial industry.  In addition to the benefits for women, financial services entities subject to regulation under the Dodd-Frank Act can look to the new MBA networking platform as an initiative for fostering diverse talent in connection with diversity and inclusion (D&I) programs adopted under the Dodd-Frank D&I standards.

mPower, an acronym for MBA Promoting Opportunities for Women to Extend their Reach, is accessible through the MBA website, where members are provided with exclusive access to resources and information, notices regarding upcoming events of interest to women in the industry, and the opportunity to interact with their peers in a private online forum.  According to David H. Stevens, president and CEO of the MBA, “addressing the needs of this important segment of our workforce is essential to our industry’s success.  MBA can be the catalyst for creating a strong, diverse network of women in our industry.”

The stated goals of mPower align with the Dodd-Frank D&I standards, which contemplate the “inclusion” component as “a process to create and maintain a positive work environment that values individual similarities and differences, so that all can reach their potential and maximize their contributions to an organization.”  As explained by MBA chief operating officer Marcia Davis, “mPower is designed to recognize and promote the rise of women in the real estate finance industry, as well as the overall workforce.  Our goal is to provide information, events and a networking platform to help women maximize their overall potential.”


FDIC Releases Revised MLA Exam Procedures and Sets Supervisory Expectations

Posted in Military Issues

On October 17, the FDIC released revised interagency Military Lending Act (MLA) examination procedures for use in connection with consumer credit transactions occurring on or after October 3, 2016. The revised procedures reflect the Department of Defense’s July 2015 final rule and August 2016 interpretive rule and appear consistent with those released by the CFPB and FFIEC last month.

The FDIC also provided guidance on its initial supervisory expectations for examinations relating to MLA compliance. Echoing the words of the CFPB, the FDIC stated that early examinations will focus on financial institutions’ “compliance management systems and overall efforts to come into compliance” with the MLA final rule, and that “examiners will consider an institution’s implementation plan, including actions taken to update policies, procedures, and processes; its training of appropriate staff; and its handling of early implementation challenges.”

Considering the NCUA’s instruction to examiners earlier this month to accept a credit union’s “reasonable and good faith efforts” to comply with the MLA final rule, and the OCC’s Bulletin issued on October 7th, which used language similar to the CFPB regarding initial supervisory expectations, the FDIC has joined what appears to be a growing list of regulators to follow the CFPB’s lead and take a modified approach to early examinations for MLA compliance.

Compliance with the MLA final rule was required for most consumer credit products as of October 3, 2016. For credit extended in a new credit card account under an open-end consumer credit plan, compliance is not required until October 3, 2017.

CFPB Mortgage Servicing Rule Amendments Published in Federal Register

Posted in CFPB Rulemaking

The CFPB Mortgage Servicing Rule Amendments were published in the Federal Register yesterday, starting the clock for the effective date of the amended provisions.  Most of the provisions are effective on October 19, 2017.  The provisions related to successors in interest and periodic statements for borrowers in bankruptcy are effective on April 19, 2018.  The published servicing rule amendments can be found here.

The CFPB’s accompanying FDCPA Interpretive Rule was also published in the Federal Register yesterday.   As with the servicing rule amendments, the provisions are generally effective on October 19, 2017, and the provisions applicable to successors in interest are effective April 19, 2018.  The published interpretive rule can be found here.

For details regarding the Mortgage Servicing Rule Amendments and the FDCPA Interpretive Rule, please see our previous blog post.

Hensarling seeks assurance of CFPB compliance with limits on executive agencies

Posted in CFPB Rulemaking

Republican Congressman Jeb Hensarling, who chairs the House Financial Services Committee, has sent a letter to Director Cordray asking him to provide written assurance by October 26, 2016 that, as a result of the D.C. Circuit’s decision in PHH Corporation v. CFPB, the CFPB will comply with the limits on executive agencies set forth in various executive orders.

On November 1, 2016, from 12:00 pm to 1:00 pm ET, Ballard Spahr attorneys will conduct a webinar: The Landmark Opinion of the D.C. Circuit Court of Appeals in PHH v. CFPB.  Information about the webinar and a link to register is available here.

In its PHH decision, the D.C. Circuit ruled that the CFPB’s single-director-removable-only-for-cause structure is unconstitutional.  To remedy the constitutional defect, the court severed the removal-only-for-cause provision from the Dodd-Frank Act so that the President “now has the power to supervise and direct the Director of the CFPB, and may remove the Director at will at any time.”  As the court stated, the consequence of this structural change is that the CFPB is no longer an “independent agency” and instead “now will operate as an executive agency.”

As we have observed, pursuant to Executive Order 12866, executive agencies, unlike independent agencies, are subject to the regulatory review process of the Office of Information and Regulatory Affairs (OIRA) within the Office of Management and Budget.  Executive Order 12866 requires federal agencies, other than those defined as an “independent regulatory agency” by 44 U.S.C. Sec. 3502(5), to submit proposed and final regulations constituting a “significant regulatory action” to OIRA for review prior to publication in the Federal Register.  A key component of OIRA’s review is an evaluation of the agency’s analysis of a regulation’s anticipated costs and benefits and its determination that the regulation’s anticipated benefits justify its anticipated costs as well as the agency’s identification and assessment of feasible alternatives.

Congressman Hensarling’s letter cites to various executive orders that impose regulatory requirements on executive agencies.  In addition to Executive Order 12866, the letter cites to three other executive orders: (1) Executive Order 13563 which requires executive agencies, in connection with applying the requirements of Executive Order 12866, to “use the best available techniques to quantify anticipated present and future costs and benefits as accurately as possible,” (2) Executive Order 13132 which requires executive agencies to prepare a “federalism summary impact statement” for a rule that “has federalism implications, that imposes substantial direct compliance costs on State and local governments, and that is not required by statute,” and (3) Executive Order 13175 which requires executive agencies to consult with tribal officials before promulgating a rule with tribal implications.  (For purposes of Executive Order 13123, a rule with “federalism implications” is one that has “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.”)

In his letter, Mr. Hensarling asks Director Cordray to provide written assurance by October 26, 2016 “that the CFPB will comply in full with the requirements of Executive Orders 12866, 13563, 13132, and 13175 prior to issuing any future final rule, including rules governing arbitration agreements; payday, vehicle title, and installment loans; and debt collection.”  Assuming he responds to Mr. Hensarling, Director Cordray is likely to observe that the PHH decision is not yet effective, with the D.C. Circuit having issued an order directing the Clerk of the Court not to issue the mandate in the case until seven days after disposition of a timely petition for a rehearing or petition or petition for rehearing en banc and that, under circuit rules, the CFPB has 45 days to file a petition for a rehearing. Perhaps Director Cordray’s response will reveal whether the CFPB intends to seek a rehearing by the November 25 deadline (which we believe is very likely).

In response to Mr. Hensarling’s letter, Americans for Financial Reform issued a statement taking issue with the immediate application of the executive orders to the CFPB.  However, rather than noting the court’s withholding of the mandate, AFR stated that the CFPB is not subject to the executive orders because they “specifically exclude any agency defined as an “independent regulatory agency” by 44 U.S.C. 3502(5), which lists the CFPB by name.  PHH v. CFPB did nothing to change that statutory definition.”  In our view, notwithstanding that the CFPB is currently defined as “independent regulatory agency,” if the D.C. Circuit’s decision takes effect, the CFPB should no longer be considered an “independent regulatory agency” for purposes of the executive orders.


CFPB Student Loan Ombudsman’s fifth annual report highlights complaints about transition from default to income-driven repayment plans

Posted in Student Loans

The CFPB has released its fifth Annual report of the CFPB Student Loan Ombudsman discussing complaints received by the CFPB about private and federal student loans and the lessons drawn by the Ombudsman from those complaints.  The report states that it is based on the CFPB Student Loan Ombudsman’s analysis of approximately 5,500 private student loan complaints and 2,300 debt collection complaints related to private and federal student loans handled by the CFPB between September 1, 2015 and August 31, 2016.  (We note that this time period overlaps with the October 1, 2014 through September 30, 2015 period covered by the Ombudsman’s 2015 annual report.  In addition, it is inconsistent with the CFPB’s press release which stated that the new report “was informed by consumer complaints submitted to the CFPB between Oct. 1, 2015 and May 31, 2016.”)

The report also analyzes approximately 3,900 federal student loan complaints submitted between March 1, 2016 and August 31, 2016.  The CFPB began taking complaints about federal student loans on February 25, 2016.  (The number of complaints handled by the CFPB continues to represent an exceedingly low complaint rate given the millions of federal and private student loans outstanding.)

In his 2015 annual report, the Student Loan Ombudsman focused on servicers’ alleged failure to help distressed private and federal student loan borrowers enroll or stay enrolled in affordable or income-driven repayment plans.  In this year’s report, the Ombudsman focuses on complaints about the transition from default to an income-driven repayment (IDR) plan.  The new report indicates that, contemporaneously with its publication, the CFPB sent a data request to several of the largest student loan servicers calling for new information about their policies and procedures related to service provided to previously defaulted borrowers.  A copy of the data request is attached as Appendix C to the report.

The report describes various problems allegedly experienced by borrowers when making rehabilitation payments to debt collectors, such as retroactive invalidation of payments, and when a loan is transferred from a debt collector to a servicer, such as a lack of clear communication.  It also describes various problems allegedly experienced by borrowers after curing a default through an income-driven rehabilitation and then seeking full enrollment in an IDR plan, such as poor customer service.

The report reviews data related to rehabilitated loans, including projections that approximately 45 percent of FFELP borrowers rehabilitating their loans will default again (three-quarter of whom will default in the first two years following rehabilitation).  It discusses the outdated nature of the rehabilitation program, observing that it has not been revised in more than two decades and does not reflect two major changes to the federal student loan program in the intervening years – the termination of bank-based guaranteed lending and the establishment of a near-universal right for borrowers to make payments under an IDR plan.  The report suggests that use of a direct consolidated loan  rather than rehabilitation to cure a default can provide a faster track  to an IDR plan for some borrowers, and contains a diagram that compares the rehabilitation process to income-driven consolidation.

The report makes several recommendations for how policymakers and industry can address the problems discussed in the report, including the following:

  • In light of the rehabilitation program’s outdated nature, the Ombudsman urges policymakers to reassess the treatment of borrowers with severely delinquent or defaulted loans and to consider streamlining, simplifying or enhancing the current consumer protections in place for such borrowers.
  • To address problems discussed in the report, the Ombudsman urges policymakers and industry to consider various actions, including requiring collectors to initiate and assist borrowers seeking to complete applications for IDR plans and to hand-off these documents to servicers for processing, enhancing servicer communications to borrowers transitioning out of default, such as using personalized communications related to IDR enrollment, and using incentive compensation for debt collectors and servicers that is linked to a borrower’s enrollment in an IDR plan and successful recertification of income after the first year of enrollment.
  • The Ombudsman contends that borrowers, industry, and regulators would benefit from periodic publication of identifiable, servicer-level data related to the performance of previously-defaulted borrowers.  (The Department of Education directed the publication of servicer level data in the memorandum it released in July 2016 to provide policy direction for the new federal student loan “state-of-the-art loan servicing ecosystem” that the ED is currently procuring.)


CFPB Deputy Enforcement Director mum on whether CFPB will seek further review of PHH decision

Posted in CFPB Rulemaking

During the “Developments at the CFPB” panel this morning at the Pennsylvania Bar Institute Consumer Financial Services & Banking Law Update program in Philadelphia, Jeffrey Ehrlich, the CFPB’s Deputy Enforcement Director, would not comment on whether the CFPB will seek further judicial review of the October 11 opinion of a 3-judge panel of the U.S. Court of Appeals for the D.C. Circuit  in PHH Corporation v. CFPB.

In my view, it is very likely that the CFPB will file a petition for rehearing en banc on or before the Nov. 25 deadline. Mr. Ehrlich indicated that the only announcement the CFPB will make if it decides to file such a petition will be the filing of the petition itself.

I am chairing the PBI program with my partner, Mark Furletti.  Another colleague (and former Senior Enforcement Attorney at the CFPB), James Kim, participated with Mr. Ehrlich, in the panel on CFPB developments.

What the D.C. Circuit’s PHH decision means for CFPB rulemaking

Posted in CFPB Rulemaking

In its decision last week in PHH Corporation v. CFPB, the D.C. Circuit ruled that the CFPB’s single-director-removable-only-for-cause structure is unconstitutional.  While the D.C. Circuit (in footnote 19) noted that it “need not here consider the legal ramifications of our decision for past CFPB rules or for past agency enforcement actions,” we have determined that one legal ramification of the decision is greater regulatory oversight for CFPB rulemaking.

To remedy the constitutional defect, the court severed the removal-only-for-cause provision from the Dodd-Frank Act so that the President “now has the power to supervise and direct the Director of the CFPB, and may remove the Director at will at any time.”  As the court stated, the consequence of this structural change is that the CFPB is no longer an “independent agency” and instead “now will operate as an executive agency.”

Unlike independent agencies, executive agencies are subject to the regulatory review process of the Office of Information and Regulatory Affairs (OIRA) within the Office of Management and Budget.  Pursuant to Executive Order 12866, federal agencies, other than those defined as an “independent regulatory agency” by 44 U.S.C. Sec. 3502(5), must submit proposed and final regulations constituting a “significant regulatory action” to OIRA for review prior to publication in the Federal Register.  (The Executive Order incorrectly cites to Sec. 3502(10) which defines “person.”)  A key component of OIRA’s review is an evaluation of the agency’s analysis of a regulation’s anticipated costs and benefits and its determination that the regulation’s anticipated benefits justify its anticipated costs as well as the agency’s identification and assessment of feasible alternatives.  The Executive Order defines a “significant regulatory action” as any regulatory action that is likely to result in a rule that may (a) “have an annual effect on the economy of more than $100 million or more,” (b) “adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, tribal governments or communities,” or (c) raise other coordination, budgetary, or policy issues, such as creating a serious inconsistency with another agency’s action.

If and when the CFPB would become subject to OIRA oversight as an “executive agency” will turn on future developments in the PHH case.  Most immediately, it will turn on whether and when a mandate is issued by the D.C. Circuit and, if issued, whether the mandate is stayed by the D.C. Circuit or the U.S. Supreme Court.  The D.C. Circuit has issued an order directing the Clerk of the Court of Appeals to “withhold issuance of the mandate herein until seven days after disposition of any timely petition for rehearing or petition for rehearing en banc.”  Under D.C. Circuit rules, if a United States agency is a party in a civil case, any party has up to 45 days from the date of judgment (which was October 11 in PHH) to file a petition for rehearing by the panel or a petition for rehearing en banc.  If a request by the CFPB for a rehearing is denied or if the CFPB decides not to seek a rehearing and instead to directly file a petition for a writ of certiorari with the U.S. Supreme Court, the CFPB would need to seek a stay of the mandate from the D.C. Circuit or Supreme Court.  Under U.S. Supreme Court rules, a certiorari petition must be filed within 90 days after entry of judgment by a court of appeals or, if a petition for rehearing is filed, 90 days after the date of denial of the rehearing or subsequent entry of judgment if rehearing is granted.

Notwithstanding that the CFPB is currently defined as “independent regulatory agency” by 44 U.S.C. Sec. 3502(10), if the D.C. Circuit’s decision takes effect, the CFPB should no longer be considered an “independent regulatory agency” for purposes of Executive Order 12866.  It seems clear that any regulations the CFPB has not yet finalized (e.g. currently proposed arbitration and payday loan rules, a future proposed debt collection rule) would qualify as a “significant regulatory action” subject to OIRA review based either on the rule’s annual effect on the economy or its material adverse effect on a sector of the economy.  For example, the CFPB has estimated that its proposed arbitration rule will cause 53,000 providers who currently use arbitration agreements to incur between $2.62 billion and $5.23 billion over a five-year period to deal with 6,042 additional federal and state court class actions that will be filed due to the proposed rule’s elimination of class action waivers.  In addition, the D.C. Circuit’s decision could result in challenges to CFPB final rules, including those that have already become effective, on the basis that such rules were not, but should have been, reviewed by OIRA (e.g. prepaid card rule, larger participant rules).