CFPB to scrap key underwriting portion of payday rule

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The Consumer Financial Protection Bureau is expected to eliminate underwriting requirements in a highly anticipated revamp of its payday lending rule, according to sources familiar with the bureau’s proposal.

The CFPB in October signaled its interest in "revisiting" the ability-to-repay provisions in the 2017 small-dollar lending rule issued under former Director Richard Cordray.

But sources familiar with the agency's thinking say the CFPB — now led by Trump appointee Kathy Kraninger — has concluded the best approach is to remove those provisions altogether. Under the current rule, which has not yet gone fully into effect, lenders must verify a borrower's income as well as debts and other spending, to assess one's ability to repay credit while meeting living expenses.

Such a course would gut the centerpiece of a rule that consumer advocates had hailed as a preventive measure against spiraling debt for consumers who rely on short-term credit.

The agency under then-acting CFPB Director Mulvaney signaled its intent to reopen the rule as far back as January 2018. Now the acting White House chief of staff, Mulvaney sided with two payday lending trade groups that sued the CFPB in April to invalidate the regulatory restrictions.

In court documents, the CFPB argued that payday lenders would suffer "irreparable harm" from the 2017 final payday rule and that it was "in the public interest" to reopen the rulemaking.

"Lenders throughout the market will face substantial decreases in revenue once the Rule’s compliance date takes effect, which will lead many to exit the market," agency said in a motion.

But even though both Mulvaney and Kraninger have supported using statistical analysis to to weigh a regulation's cost, some attorneys and consumer advocates say it is is unclear how the CFPB will explain changes to the underwriting requirements since no new research on payday loans has been released in the last year.

“Gutting the ability-to-repay requirement completely is going to be difficult for the bureau to defend,” said Casey Jennings, an attorney at Seward & Kissel and a former attorney in the CFPB’s Office of Regulations, who worked on the 2017 rule.

The 2017 final payday rule stated that it was “an unfair and abusive practice” for a lender to make a short-term balloon-payment loan “without reasonably determining that consumers have the ability to repay the loans according to their terms.”

The CFPB is expected within days or weeks to issue a proposal to reopen the rule for public comment. The overhauled regulation would replace the 1,690-page rulemaking — the result of five years of research — finalized in Cordray's last days at the agency.

The latest proposal also is expected to rescind limits that the rule placed on repeat reborrowings by a single consumer; the CFPB's data shows that payday lenders rely on reborrowings as a major source of revenue.

However, the CFPB is expected to leave intact payment provisions that would limit the number of times a lender can try to extract loan payments directly from consumers’ bank accounts, sources said.

Consumers groups say retracting the core ability-to-repay requirements and reborrowing limits would leave consumers vulnerable.

“Our expectation is that the CFPB will weaken the payday rule to the point that it has no practical value,” said Alex Horowitz, a senior research officer on the small-dollar lending project at the Pew Charitable Trusts.

The bureau's statement in October said the agency planned to reconsider only the ability-to-repay mandate — and not the limit on lender's attempted debits from a consumer's bank account — “in significant part because the ability-to-repay provisions have much greater consequences for both consumers and industry than the payment provisions.”

In November, a federal court suspended the August 2019 compliance date for key parts of the original 2017 rule, since the bureau under then-acting Director Mick Mulvaney had said it planned to propose changes in January.

The CFPB has been overseeing the $38.5 billion payday industry since its inception in 2011. During that time, payday lenders have fought all federal efforts to regulate the industry.

The two payday lending trade groups that sued the CFPB last year to invalidate the 2017 rule claimed that the bureau under Cordray cherry-picked research to support tough restrictions on lenders.

“The rule as previously proposed was really just an attempt to penalize industry,” said Jamie Fulmer, a senior vice president at Advance America in Spartanburg, S.C., one of the largest payday lenders. “There was a tremendous amount of academic research on both sides that was put forth but the bureau only dwelled on research studies that supported their positions, and dismissed the counter arguments."

Payday lenders have sought to frame the debate as one of access to credit, arguing that it makes sense for cash-strapped consumers to have access to short-term, small-dollar lending options, and they dispute characterizations that their business model is predatory.

“Anything that restricts consumers’ ability to access credit when they need it is bad for the consumer,” said Fulmer.

Still, a consumer using one of those options may have to pay as much as $60 to borrow $400 for a couple of weeks, and their annual interest rates range from 300% to 500%.

Consumer advocates are likely to sue the CFPB over its changes but can only do so after the rule is finalized.

Eliminating underwriting requirements for payday loans could create “ground-breaking precedent for interpreting federal agency actions,” said Jennings.

Many consumer attorneys believe the CFPB faces a tough hurdle in defending its changes against charges under the Administrative Procedure Act that a new regulation is “arbitrary and capricious.”

“The underlying research didn’t change; the only thing that changed was the director of the agency," Jennings said. "I think it’s quite possible that a court finds that arbitrary and capricious.”

The CFPB’s 2017 final payday rule under Cordray sought to strike a balance by constraining repeat borrowings that pushed many borrowers into a cycle of debt, without eliminating two-to-four-week loans altogether.

Regulators have also opened the door for banks to get into installment lending as an alternative to payday lenders.

In May, the Office of the Comptroller of the Currency endorsed banks' offering affordable installment loans. In September, U.S. Bank announced that it would offer installment loans with monthly payments that do not exceed 5% of a borrower’s monthly income, with prices markedly lower than a payday loan.

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Payday lending UDAAP Dodd-Frank Small-dollar lending Kathy Kraninger CFPB