The CFPB published today a final list of the rules it will enforce. The final list includes two rules that weren’t on the initial list the CFPB published for comment last month: the FTC’s Mortgage Acts and Practices-Advertising rule, and HUD’s rule implementing the SAFE Act (which takes effect this August 29). How comfortable should financial institutions be in relying on pre-July 21 guidance issued by the agencies from whom Dodd-Frank transferred authority to the CFPB? Not very. The CFPB’s answer is that until it takes further action, it will follow pre-July 21 official commentary, guidance ,and policy statements but won’t necessarily follow “other [pre-July 21] written guidance, interpretations, and policy statements.” Those documents will only get “due consideration” from the CFPB in light of “all relevant factors” such as how persuasive the CFPB thinks the guidance is. Also, the CFPB says the official guidance it will follow relates to laws as to which the CFPB now has rulemaking authority. Since the CFPB has no rulewriting authority under the FTC Act, uncertainty remains as to whether the CFPB intends to follow any FTC official guidance when enforcing the FTC Act rules on its list.
