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A new CFPB rule strengthens credit data standards, helping lenders and borrowers
Interview transcript
Terry Gerton CFPB recently issued a new rule regarding the Fair Credit Reporting Act and it’s pretty important. Can you walk us through the core of that rule and why you at the Consumer Data Industry Association think it’s important?
Dan Smith Sure, happy to. So the Fair Credit Reporting Act has been in existence since 1970. The leading privacy legislation in the country has specific requirements that lay out how credit reporting should take place, the protections for consumers, and a clear process. And one of the core functions of the Fair Credit Reporting Act is to have a national standard and clearly discusses preemption. Throughout the years, it’s been amended several times. But in the end, Congress is the one who makes decisions on the law. They write the law, and it’s up to judges to interpret the law. In 2022, the CFPB, under the previous administration, put out a document called the Interpretive Rule on Preemption, where they decided what the statute meant. So the first problem was that CFPB actually doesn’t have the authority to do that. They’re not the judge. They implement regulations. They don’t interpret law. That’s up to the courts to decide. They clearly decided to go against the congressional intent of the FCRA. And the current administration believes that that is not their role; that is up to Congress to decide the law. And they were attempting to state that fact, right? So they basically went back to what was common knowledge of the interpretation on preemption to what it was prior to 2022. And they acknowledge in their current interpretive rule that this is not binding, just like the 2022 rule was not binding. It was an interpretation, right? It didn’t go through the APA process, right? We couldn’t sue in 2022 because they didn’t write an actual rule. They just said, this is what we believe. So the current administration is saying you don’t have the right to say, this is what we believe. That is up to Congress. You probably remember the Loper Bright case, which basically said Congress writes the laws, right? If they’re ambiguous, the the regulators actually don’t have the flexibility to interpret it. It’s up to Congress. So I believe the current administration is trying to get the market back to where Congress intended years ago.
Terry Gerton What does this all mean for both consumers and lenders who have to use this kind of data?
Dan Smith The credit reporting ecosystem is critical to every consumer in this country. It provides access to credit. It provides the lender with the ability to mitigate their risks, to analyze the consumer and their ability to repay the loan. It helps facilitate the buying of a car. You could walk into an auto dealer and walk out with a $50,000 car today. And a good reason is because of the credit reporting system. It allows the lender to evaluate the consumer with data. They’re not making judgments. They’re not looking at the person. They are making a decision based on data that talks about their ability to repay the loan. So every day consumers benefit from a robust, complete, accurate credit report. The good, the bad and the not so good. And if you have a system that doesn’t intake the completeness of a consumer’s credit, then you’re going to have decisions that are not accurate. And a lender has two basic choices at that point. They can cut back on their lending, lend to less, or they can charge people more because they’re taking on more risk. Those are their two levers. So the more complete and more accurate a credit report is, the better the lender’s going to be able to manage their risk and lend to more people.
Terry Gerton I’m speaking with Dan Smith. He’s the CEO of the Consumer Data Industry Association. So in the interim between the previous administration’s interpretive rule and this one, some states tried to create their own standards on credit reporting. Were there any particular state actions that raised a red flag for you at CDIA?
Dan Smith Yes. The reason CDIA is so current concerned about the state action is that Congress is the decider of what can and can’t be on a credit report. And it is critical that we have a national standard, that the same data, same types of data appear across the country, so that there is a system that a lender can rely upon if they’re lending in California or they’re lending in Nevada or they’re lending in New Jersey. The credit score that’s based off that information is consistent across the country. If you had data in California that’s different than data in New Jersey, that means the score would act differently. A 750 in California that doesn’t have medical debt would perform different than a 750 in New Jersey that does have medical debt. And I don’t know how a lender can manage a network of 50 different credit reports, 50 different credit scores — and there aren’t just two credit scores, FICO and Vantage score. There’s 50 or 60 different forms of credit scores based on the lender. It’s a complex weave and it’s important to have a national standard so a lender can evaluate the consumer on a level playing field. And if you allow someone other than Congress to determine what can or can’t be on a credit report, you’re bringing politics into the decision making, not sound underwriting decisions. So today’s medical debt, tomorrow’s student loans. Next week is homes damaged by a natural disaster. And before you know it, that credit report is less valuable to the lender and they stop buying the credit report and using it as a tool to lend more.
Terry Gerton You mentioned medical debt along with some of the others. There was a recent decision in the Eastern District of Texas having to do with medical debt that vacated a C F P B rule. Was that in line with the new rule or was that related to the old rule?
Dan Smith So we actually filed that case, CDIA along with Cornerstone Credit Union League out of the Texas area. So you had you have two things. You have the current interpretive rule, which they talked about preemption and what a state can and can’t do. That’s what happened last week. Back in January of 25, the previous administration, as they were leaving, finalized the prohibition on medical debt from being included in credit reports, right? We and others sued saying you don’t have the legal authority to determine that, only Congress does. So back in … 1996, Congress actually prohibited medical debt from being on credit reports, right? People don’t realize, in ’96, they said no medical debt. We don’t think that’s correct. In 2003, they came back and said, oops, that was a mistake. When somebody has $50,000 in any kind of debt, a lender needs to know that so they can make the right choice and not put that consumer in a position that they’ll fail. You don’t want to give people more credit than they can actually afford. So Congress in 2003 passed a law saying both medical debt can be included as long as you can de-identify the medical institution. So if you are a patient at Sloan Kettering, this was an actual example by Congress. You’re a patient at Sloan Kettering and your credit report says. Medical debt, $5,000 Sloan Kettering, the assumption can be made very easily that you have a medical cancer. They don’t think that was fair. And they made the decision that you could put the medical debt, but you have to quote code it or block the identity of that company, the Sloan Kettering. But it says you can definitely put the information on there. So they completely reversed their opinion and said it’s important. So what happened was in ’25 in January, the administration and the CFPB said, we don’t agree with Congress. We’re going to take it off. And they used some data and some analysis and a lot of hyperbole and said, this isn’t fair to the consumer, so we’re gonna take it off. Well, they don’t have the authority to actually do that. So the lawsuit in Texas was to say the authority the Bureau has is to implement regulations, not make law. And the court agreed with us completely.
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