Like it said it would do, the Consumer Financial Protection Bureau last week issued a final rule that would ban contractual arbitration clauses that prohibit class actions. The rule, if it becomes law, would affect most consumer financial contracts, including some in the real estate industry.
In May 2016, the CFPB announced that it was planning to use its authority under the Dodd-Frank Act to outlaw terms in financial contracts that require consumers to arbitrate disputes and waive their rights to participate in class actions. Members of the public were invited to comment on the proposed rule, and many did. Despite receiving over 100,000 responses from citizens, consumer groups, industry associations, and other interested parties, the bureau pressed ahead with the proposed rule, leaving it largely intact.
Buried deeply within the 775-page explanation accompanying the final rule are a few nuggets about the real estate industry.
First, the bureau notes that the Dodd-Frank Act previously barred the use of arbitration clauses in consumer mortgage contracts. So that part of the industry was affected years ago.
Second, a few commenters (anti-industry consumer groups) recommended that the bureau expand its proposed rule to cover title insurers, real estate brokers, and all real estate settlement service providers. The CFPB did not address whether it has authority to do that. (It likely does not.) Instead, the bureau said it would not presently cover those entities in the final rule because the anti-industry recommendations had not been subject to public notice and comment.
Third, the CFPB reversed itself and changed the proposed rule so that, rather than exempt escrow transfers, it now covers them. So, if the rule survives, escrow agents will not be allowed to compel clients to arbitrate their disputes individually or to waive their rights to participate in class actions.
The rule’s survival is highly doubtful. Some members of Congress have already discussed overturning it through the Congressional Review Act, which gives lawmakers veto authority over new regulations.