CFPB’s Notice of Proposed Rulemaking

On January 11, 2023, the Consumer Financial Protection Bureau (CFPB) issued a Proposed Rule that will, if adopted, require certain nonbank covered entities—including consumer reporting agencies (CRAs)—to register certain contract terms and conditions with the CFPB. The Proposed Rule excludes from the registration requirements nonbanks having annual receipts less than $1 million from offering or providing certain consumer financial products or services.

The Proposed Rule requires that nonbanks (including CRAs) register each year in a nonbank registration system established by the CFPB and report information about the nonbanks’ use of “covered terms and conditions” in form contracts for consumer financial products and services that pose risk to consumers. The CFPB would publish and maintain a publicly available source of information that includes supervised registrants and the covered terms and conditions that supervised registrants use.

Covered terms and conditions include terms and conditions in form contracts that expressly seek to impose the following limitations on consumer rights and other legal protections applicable to the offering or provision of consumer financial products or services in markets the Bureau supervises:

• waivers of claims a consumer can bring in a legal action;
• limits on the company’s liability to a consumer;
• limits on the consumer’s ability to bring a legal action by dictating the time frame, forum, or venue for a consumer to bring a legal action;
• limits on the ability of a consumer to bring or participate in collective legal actions such as class actions;
• limits on the ability of the consumer to complain or post reviews;
• certain other waivers of consumer rights or other legal protections; and
• arbitration agreements.

The CFPB will provide applicable nonbanks with filing instructions and details on how to register, the implementation date for the registration system, and the annual registration date.

Public comments to the Proposed Rule should be submitted on or before March 13, 2023.