On August 14, 2019, Senate Banking Committee Ranking Member Sherrod Brown (D-Ohio) wrote a letter imploring Consumer Financial Protection Bureau Director Kathy Kraninger to implement the payments provisions of the 2017 Payday Rule by the scheduled August 19, 2019, compliance date, by requesting a lifting of the stay imposed by the Texas federal district court hearing the lawsuit challenging the Rule.  Brown’s letter came a week after that Court entered an Order continuing the stay of the compliance date, which, as we previously discussed, was entered after the Bureau joined in a status report filed August 2, 2019, stating that the parties “are not requesting that the Court … lift the stay of the compliance date….”

Brown criticizes the Bureau’s inaction, and mirrors much of the criticism lodged by various consumer advocacy groups in an August 12, 2019, letter to the Bureau “call[ing] on … [it] to request an end to [the] court-ordered stay.”  Both letters criticize the Bureau’s conduct since its 2017 leadership change – which Brown characterized as “joined at the hip” with the payday lending industry – and cite the Bureau’s failure to challenge the stay of the payments provisions as contrary to its consumer protection purpose.  They likewise suggest the Bureau lacks any legal justification for its inaction, noting that it previously stated, in a March 9, 2019, status report, that “there is no legal basis” for a stay of the payments provisions.  Brown further points to this statement as evidence that the Bureau’s inaction violates the Administrative Procedures Act, which authorizes a stay of the effective date of an agency action only “to the extent necessary to prevent irreparable injury” or “to preserve status or rights pending conclusion of review proceedings.”

Brown requested a response from the Bureau by the scheduled compliance date of August 19, 2019 – with either a timeline for lifting the stay and implementing the payments provisions or a legal basis for its decision not to request a lift of the stay.  However, there was no record of any response from the Bureau as of now.