Last week’s announcement of the CFPB’s new “appeal process” for supervised entities offers little solace to those organizations subject to an adverse finding or compliance rating by the Bureau. Pursuant to Bulletin 2012-07 (Bulletin) released by the CFPB, “Financial service providers, including depository institutions, under CFPB’s jurisdiction may request a review of a less than satisfactory compliance rating (a 3, 4, or 5) or any underlying adverse finding set forth in the relevant examination report, or adverse findings conveyed in a supervisory letter.” If this sounds too good to be true, that’s because it is.
Under the “appeal process,” the reviewing panel will be comprised of at least three members of the CFPB’s management appointed by an Assistant Director for Supervision, Enforcement and Fair Lending. The Bulletin does not set forth the standard or review or any other relevant factors to be considered by the panel. In addition, the Bulletin explicitly provides that the panel’s recommendation is reviewable by the Associate Director for Supervision, Enforcement and Fair Lending, who may “make any modifications as he or she deems appropriate” before releasing a final decision, which, according to the Bulletin, “will be final; no further attempts to appeal will be accepted.” Given CFPB’s inflexibility and track record in sitting as its own judge, as previously reported by the CFPB-Lawblog, it is doubtful that this new policy will create legitimate opportunities for supervised institutions to challenge compliance ratings or other adverse findings —particularly when decisions obtained through this process are final, with no further chance for appeal. Whether the new appeals system will create a genuine review process, rather than the mere appearance of one, remains to be seen.
The new appeals process does not cover CFPB decisions to initiate supervisory measures, such as requiring memoranda of understanding; enforcement actions; or referrals of information to other regulatory agencies, including, specifically, referrals to the DOJ under the Equal Credit Opportunity Act. Entities subject to such actions appear to possess no meaningful remedy from this new policy.
One final comment: we note with interest that the Bulletin repeatedly refers to fair lending issues—a reference that might well be an early indicator of the Bureau’s intent to focus increased attention on fair lending matters.. Stay tuned to the CFPB-Lawblog for updates and analysis as this story evolves.