---
kind: "range"
citation: "12 C.F.R. §§ 1091.101–1091.110"
title: "12"
from: "1091.101"
to: "1091.110"
count: 10
url: "https://uscodex.org/cfr/12/1091.101..1091.110"
---

# §1091.101. Definitions.


For the purposes of this part, the following definitions apply:

Bureau means the Consumer Financial Protection Bureau.

Consumer means an individual or an agent, trustee, or representative acting on behalf of an individual.

Consumer financial product or service means any financial product or service, as defined in [12 U.S.C. 5481(15)](/usc/12/5481.md?p=15), that is described in one or more categories under:

- (1) [12 U.S.C. 5481(15)](/usc/12/5481.md?p=15) and is offered or provided for use by consumers primarily for personal, family, or household purposes; or
- (2) Clause (i), (iii), (ix), or (x) of [12 U.S.C. 5481(15)(A)](/usc/12/5481.md?p=15-A) and is delivered, offered, or provided in connection with a consumer financial product or service referred to in [paragraph (1)](#1) of this definition.

  Decisional employee means any employee of the Bureau who has not engaged in:

- (1) Assisting the initiating official in either determining whether to issue a Notice of Reasonable Cause, or presenting the initiating official's position in support of a Notice of Reasonable Cause, either in writing or in a supplemental oral response, to the recommending official; or
- (2) **Assisting the recommending official in the preparation of a recommended determination.** Director means the Director of the Bureau or his or her designee. If there is no Director, the term shall mean a person authorized to perform the functions of the Director under this part, or his or her designee.

  Executive Secretary means the Executive Secretary of the Bureau.

  Initiating official means the Supervision Director or another Bureau employee designated by the Director to initiate proceedings under this part.

  Nonbank covered person means, except for persons described in 12 U.S.C. [5515(a)](/usc/12/5515.md?p=a) and [5516(a)](/usc/12/5516.md?p=a):

- (1) Any person that engages in offering or providing a consumer financial product or service; and
- (2) Any affiliate of a person described in [paragraph (1)](#1) of this definition if such affiliate acts as a service provider to such person.

  Notice of Reasonable Cause and Notice mean a Notice issued under [§ 1091.102](/cfr/12/1091.102.md).

  Person means an individual, partnership, company, corporation, association (incorporated or unincorporated), trust, estate, cooperative organization, or other entity.

  Recommending official means an employee designated by the Director to make a recommended determination under this part.

  Respondent means a person who has been issued a Notice of Reasonable Cause under [§ 1091.102](/cfr/12/1091.102.md).

  Response means the response to a Notice of Reasonable Cause filed by a respondent with the recommending official under [§ 1091.105](/cfr/12/1091.105.md).


# §1091.102. Issuance of Notice of Reasonable Cause.

- (a) An initiating official is authorized to issue a Notice of Reasonable Cause to a person stating that the Bureau may have reasonable cause to determine that the respondent is a nonbank covered person that is engaging, or has engaged, in conduct that poses risks to consumers with regard to the offering or provision of consumer financial products or services.
- (b) A Notice of Reasonable Cause shall be based on:
  - (1) Complaints collected through the system under [12 U.S.C. 5493(b)(3)](/usc/12/5493.md?p=b-3); or
  - (2) **Information from other sources.**
- (c) Except as provided in [§ 1091.111](/cfr/12/1091.111.md), a Notice of Reasonable Cause shall contain the information set forth in [§ 1091.103](/cfr/12/1091.103.md), and be served on respondent as described in [§ 1091.104](/cfr/12/1091.104.md).

# §1091.103. Contents of Notice.

- (a) A Notice of Reasonable Cause shall contain the following:
  - (1) A description of the basis for the assertion that the Bureau may have reasonable cause to determine that a respondent is a nonbank covered person that is engaging, or has engaged, in conduct that poses risks to consumers with regard to the offering or provision of consumer financial products or services, including a summary of the documents, records, or other items relied on by the initiating official to issue a Notice. Such summary will be consistent with the protection of sensitive information, including compliance with Federal privacy law and whistleblower protections; and
  - (2) **A statement informing a respondent that—**
    - (i) A respondent may file with the recommending official a written response to a Notice of Reasonable Cause no later than 30 days after the Notice is served on the respondent;
    - (ii) The written response shall include the elements addressed in [§ 1091.105(b)](/cfr/12/1091.105.md?p=b);
    - (iii) A respondent may request in its written response to a Notice an opportunity to present a supplemental oral response to the recommending official as set forth in [§ 1091.106](/cfr/12/1091.106.md), including its preference that the supplemental oral response be by telephone, by video conference, or in person at the Bureau's headquarters in Washington, DC;
    - (iv) A failure timely to file a response to a Notice shall constitute a waiver of a respondent's right to respond, and may result in a default determination by the Director, based on the Notice, that a respondent is a nonbank covered person that is engaging, or has engaged, in conduct that poses risks to consumers with regard to the offering or provision of consumer financial products or services and the issuance of a decision and order subjecting a respondent to the Bureau's supervisory authority pursuant to [12 U.S.C. 5514(a)(1)(C)](/usc/12/5514.md?p=a-1-C);
    - (v) The recommending official shall serve a respondent with a notice of the date and time of a supplemental oral response, if a respondent has requested the opportunity to present a supplemental oral response, within 14 days of the recommending official's receipt of a timely-filed response;
    - (vi) If a respondent has not requested the opportunity to present a supplemental oral response, the recommending official shall, not later than 45 days after receiving a timely-filed response, or not later than 45 days after the service of a Notice of Reasonable Cause when a respondent fails to file a timely response, provide a recommended determination to the Director including either a proposed decision and order subjecting a respondent to the Bureau's supervisory authority pursuant to [12 U.S.C. 5514(a)(1)(C)](/usc/12/5514.md?p=a-1-C), or a proposed notification that the Bureau has determined not to subject a respondent to the Bureau's supervisory authority at that time, pursuant to [§ 1091.108](/cfr/12/1091.108.md); and
    - (vii) In connection with a proceeding under this part, including a petition for termination under [§ 1091.113](/cfr/12/1091.113.md), all documents, records or other items submitted by a respondent to the Bureau, all documents prepared by, or on behalf of, or for the use of the Bureau, and any communications between the Bureau and a person, shall be deemed confidential supervisory information under [12 CFR 1070.2(i)](/cfr/12/1070.2.md?p=i).
- (b) A Notice shall be accompanied by a proposed consent agreement under [§ 1091.110](/cfr/12/1091.110.md).
- (c) Nothing in this section shall be construed as requiring the Bureau to produce any documents or other information to a respondent other than as set forth in this section.

# §1091.104. Service of Notice.

- (a) A Notice of Reasonable Cause shall be served on a respondent as follows:
  - (1) **To individuals.** A Notice shall be served on a respondent that is a natural person by delivering a copy of the Notice to the individual or to an agent authorized by appointment or by law to receive such a Notice. Delivery, for purposes of this paragraph, means handing a copy of a Notice to the individual; or leaving a copy at the individual's office with a clerk or other person in charge thereof; or leaving a copy at the individual's dwelling house or usual place of abode with some person of suitable age and discretion then residing therein; or sending a copy of a Notice addressed to the individual through the U.S. Postal Service by Registered Mail, Certified Mail or Express Mail delivery, or by third-party commercial carrier, for overnight delivery and obtaining a confirmation of receipt.
  - (2) **To corporations or entities.** Notice shall be served on a person other than an individual by delivering a copy of a Notice to an officer, managing or general agent, or any other agent authorized by appointment or law to receive such a Notice, by any method specified in [paragraph (a)(1)](#a-1) of this section.
  - (3) **Upon persons registered with the Bureau.** In addition to any other method of service specified in paragraph [(a)(1)](#a-1) or [(2)](#a-2) of this section, Notice may be served on a person registered with the Bureau by sending a copy of a Notice addressed to the most recent business address shown on the person's registration form by U.S. Postal Service Certified, Registered, or Express Mail and obtaining a confirmation of receipt or attempted delivery.
  - (4) **Upon persons in a foreign country.** Notice may be served on a person in a foreign country by any method specified in paragraph [(a)(1)](#a-1) or [(2)](#a-2) of this section, or by any other method reasonably calculated to give notice, provided that the method of service used is not prohibited by the law of the foreign country.
  - (5) **Record of service.** The Bureau shall maintain a record of service of a Notice on a respondent, identifying the party given Notice, the method of service, the date of service, the address to which service was made, and the person who made service. If service is made in person, the certificate of service shall state, if available, the name of the individual to whom a Notice was given. If service is made by U.S. Postal Service Registered Mail, Certified Mail, or Express Mail, the Bureau shall maintain the confirmation of receipt or attempted delivery.
  - (6) **Waiver of service.** In lieu of service as set forth in paragraph [(a)(1)](#a-1) or [(2)](#a-2) of this section, a person may be provided a copy of a Notice by First Class Mail or other reliable means if a written waiver of service is obtained from the person to be served. In the case of a respondent that is not a natural person, a written waiver may be provided by an officer, managing or general member, or partner authorized to represent the respondent.
- (b) The initiating official shall promptly submit a copy of a Notice and a copy of the certificate of service to the recommending official.

# §1091.105. Response.

- (a) **Timing.** Within 30 days of service of a Notice, a respondent shall file any response with the recommending official according to the instructions set forth in a Notice.
- (b) **Content of the response.**
  - (1) The response shall set forth the basis for a respondent's contention that the respondent is not a nonbank covered person that is engaging, or has engaged, in conduct that poses risks to consumers with regard to the offering or provision of consumer financial products or services.
  - (2) The response shall include all documents, records, or other evidence a respondent wishes to use to support the arguments or assertions set forth in the response.
  - (3) Any request to present a supplemental oral response, including the respondent's preference that the supplemental oral response be by telephone, by video conference, or in person at the Bureau's headquarters in Washington, DC, must be included in the response. A respondent's failure to request to present a supplemental oral response shall constitute a waiver of the opportunity to present a supplemental oral response.
  - (4) A response shall include an affidavit or declaration, made by the individual respondent if a natural person, or, if a corporate or other entity that is not a natural person, by an officer, managing or general member, or partner authorized to represent the respondent, affirming that the response is true and accurate and does not contain any omissions that would cause the response to be materially misleading.
  - (5) Notwithstanding any other provisions of this [paragraph (b)](#b), a respondent may respond to a Notice of Reasonable Cause by voluntarily consenting to the Bureau's authority to supervise the respondent under [12 U.S.C. 5514](/usc/12/5514.md) by completing and executing the consent agreement form provided to the respondent with a Notice of Reasonable Cause in accordance with [§ 1091.103(b)](/cfr/12/1091.103.md?p=b).
- (c) **Default.** Failure of a respondent to file a response within the time period set forth in [paragraph (a)](#a) of this section shall constitute a waiver of the respondent's right to respond, and shall, based on the Notice, authorize the recommending official, without further notice to the respondent, to issue a proposed decision and order as provided in [§ 1091.108(c)(1)](/cfr/12/1091.108.md?p=c-1) and the Director to issue a decision and order as provided in [§ 1091.109(a)(1)](/cfr/12/1091.109.md?p=a-1).
- (d) **Waiver.** A respondent shall be deemed to have waived the right, at any future stage of the recommending official's or the Director's consideration of a matter, and in any petition for judicial review of an order issued pursuant to [§ 1091.109(a)(1)](/cfr/12/1091.109.md?p=a-1), to rely on any argument, record, document, or other information that the respondent does not raise or include in its response.
- (e) **No discovery.** There shall be no discovery in connection with a response.
- (f) **Reply by initiating official.** If the respondent files a written response, within 21 days the initiating official may file a reply with the recommending official and serve it on the respondent.

# §1091.106. Supplemental oral response.

- (a) A respondent may request in a response under [§ 1091.105](/cfr/12/1091.105.md) the opportunity to present to the recommending official a supplemental oral response in support of a respondent's assertion that the respondent is not a nonbank covered person that is engaging, or has engaged, in conduct that poses risks to consumers with regard to the offering or provision of consumer financial products or services.
- (b) The conduct of a supplemental oral response shall be subject to the following procedures:
  - (1) The recommending official will determine whether the supplemental oral response will be by telephone, by video conference, or in person at the Bureau's headquarters in Washington, DC, after considering the preference of the respondent stated in the written response;
  - (2) The recommending official may impose any limitations on the conduct of a supplemental oral response, including but not limited to establishing a time limit for the presentation of a supplemental oral response, and limiting the subjects to be addressed in a supplemental oral response;
  - (3) There shall be no discovery permitted or witnesses called in connection with a supplemental oral response;
  - (4) If a respondent is a corporate or other entity, and not a natural person, the respondent shall be represented in any supplemental oral response by:
    - (i) An officer, managing or general member, or partner authorized to represent the respondent; or
    - (ii) **An attorney in good standing of the bar of the highest court of any State.**
  - (5) If a respondent is a natural person, the respondent shall be represented in any supplemental oral response by:
    - (i) Himself or herself; or
    - (ii) **An attorney in good standing of the bar of the highest court of any State.**
  - (6) The recommending official shall cause an audio recording of a supplemental oral response to be made by a court reporter. A respondent may purchase a copy or transcript of the recording at the respondent's own expense.
- (c) The initiating official may participate in any supplemental oral response conducted under this section.
- (d) The Associate Director shall serve on a respondent, within 14 days after the Associate Director receives the respondent's timely-filed response requesting a supplemental oral response, a notice setting forth the date, time, and general information relating to the conduct of a supplemental oral response. The date of a supplemental oral response shall be scheduled not less than ten days after the date the respondent is served with the notice of supplemental oral response.
- (e) The notice of supplemental oral response shall be served on a respondent pursuant to [§ 1091.107](/cfr/12/1091.107.md).
- (f) The recommending official shall send a copy of the notice of supplemental oral response to the initiating official.
- (g) A respondent's failure to participate in a supplemental oral response scheduled by the recommending official shall constitute the respondent's waiver of the opportunity to present a supplemental oral response.

# §1091.107. Manner of filing and serving papers.


Unless otherwise specified by the recommending official or Director, a respondent shall file the response and any other paper with the Executive Secretary at the mailing or electronic address provided by the Bureau, and the initiating official, recommending official, and Director shall serve any paper, other than a Notice as set forth in [§ 1091.104](/cfr/12/1091.104.md), on a respondent, by:

- (a) Electronic transmission upon any condition specified by the recommending official or Director; or
- (b) Any of the following methods if a respondent demonstrates electronic filing is not practicable and the recommending official or Director permits:
  - (1) Personal delivery;
  - (2) Delivery through a reliable commercial courier service or overnight delivery service; or
  - (3) Mailing the papers by U.S. Postal Service First Class, Registered, Certified, or Express Mail.

# §1091.108. Recommended determination.

- (a) If a respondent did not voluntarily consent to the Bureau's supervision authority, and did not request the opportunity to present a supplemental oral response, not later than 45 days after receipt of a timely-filed response, or not later than 45 days after the service of a Notice of Reasonable Cause when a respondent fails to file a timely response, the recommending official shall make a recommended determination whether there is reasonable cause for the Bureau to determine that the respondent is a nonbank covered person that is engaging, or has engaged, in conduct that poses risks to consumers with regard to the offering or provision of consumer financial products or services which should result in an order subjecting the respondent to the Bureau's authority under [12 U.S.C. 5514(a)(1)(C)](/usc/12/5514.md?p=a-1-C).
- (b) If a respondent did request the opportunity to present a supplemental oral response, not later than 90 days after service of a Notice of Reasonable Cause, the recommending official shall make a recommended determination whether there is reasonable cause for the Bureau to determine that the respondent is a nonbank covered person that is engaging, or has engaged, in conduct that poses risks to consumers with regard to the offering or provision of consumer financial products or services which should result in an order subjecting the respondent to the Bureau's authority under [12 U.S.C. 5514(a)(1)(C)](/usc/12/5514.md?p=a-1-C).
- (c) Upon making the recommended determination described in paragraph [(a)](#a) or [(b)](#b) of this section, the recommending official shall submit to the Director either:
  - (1) A proposed decision and order that would subject a respondent to the Bureau's supervisory authority pursuant to [12 U.S.C. 5514(a)(1)(C)](/usc/12/5514.md?p=a-1-C) if adopted by the Director; or
  - (2) A proposed notification that a respondent should not be subjected to the Bureau's supervisory authority under [12 U.S.C. 5514(a)(1)(C)](/usc/12/5514.md?p=a-1-C) based on the proceedings. Such a notification shall have no precedential effect and shall not prevent the issuance of another Notice of Reasonable Cause pursuant to either [§ 1091.102](/cfr/12/1091.102.md), or the procedures set forth in [§ 1091.111](/cfr/12/1091.111.md), at any time, or from issuance of a decision and order based on another Notice recommending that a respondent be subject to the Bureau's authority pursuant to either of those sections.
- (d) Any proposed decision and order issued by the recommending official pursuant to [paragraph (c)(1)](#c-1) of this section shall set forth:
  - (1) A statement that the recommending official has preliminarily determined based on reasonable cause that a respondent is a nonbank covered person that is engaging, or has engaged, in conduct that poses risks to consumers with regard to the offering or provision of consumer financial products or services;
  - (2) The basis for the recommending official's determination; and
  - (3) A proposed order directing that, pursuant to this determination, as of a specified date a respondent shall be subject to the Bureau's supervisory authority under [12 U.S.C. 5514](/usc/12/5514.md).
- (e) The recommending official shall include with the recommended determination submitted to the Director copies of the following:
  - (1) The Notice of Reasonable Cause;
  - (2) The record of service of a Notice of Reasonable Cause;
  - (3) A respondent's response and any documents, records, or other items filed with the written response;
  - (4) Any document, record, or other item considered by the recommending official to be material in making a recommended determination; and
  - (5) An audio recording of a supplemental oral response, if a supplemental oral response was conducted, and/or a transcript if a transcript was prepared at a respondent's request or if requested by the Director.
- (f) The requirement that the recommending official provide to the Director the items described in [paragraph (e)](#e) of this section shall confer no substantive rights on a respondent and any omission of an item may be cured by the recommending official to the extent applicable.
- (g) **Supplemental briefing.** The recommending official may, at any time before making a recommended determination, request that the respondent and initiating official provide any supplemental briefing that the recommending official considers appropriate.

# §1091.109. Determination by the Director.

- (a) Not later than 45 days after receipt of the recommending official's recommended determination, the Director shall, after considering the recommended determination and all documents, records, and other items submitted therewith by the recommending official, make a determination either adopting without revision, modifying, or rejecting the recommended determination, and shall issue to respondent, with copies to the recommending official and the initiating official:
  - (1) A decision and order subjecting the respondent to the Bureau's supervisory authority pursuant to [12 U.S.C. 5514(a)(1)(C)](/usc/12/5514.md?p=a-1-C); or
  - (2) A notification that the Director has determined that the respondent is not subject to the Bureau's supervisory authority under [12 U.S.C. 5514(a)(1)(C)](/usc/12/5514.md?p=a-1-C) as a result of the proceedings. Such notification shall have no precedential effect and shall not prevent the issuance of another Notice of Reasonable Cause pursuant to either [§ 1091.102](/cfr/12/1091.102.md), or the procedures set forth in [§ 1091.111](/cfr/12/1091.111.md), at any time, or the issuance of an order based on another Notice subjecting the respondent to the Bureau's authority pursuant to either of those sections.
- (b) Any decision and order issued by the Director pursuant to [paragraph (a)(1)](#a-1) of this section shall include:
  - (1) A statement that the Director adopts the recommending official's proposed decision and order without revision as the Director's decision and order, or that the Director rejects or modifies the recommending official's proposed determination for reasons set forth by the Director;
  - (2) A statement that the Director has determined that the Bureau has reasonable cause to determine that a respondent is a nonbank covered person that is engaging, or has engaged, in conduct that poses risks to consumers with regard to the offering or provision of consumer financial products or services;
  - (3) The basis for the Director's determination, which may be an adoption of the basis set forth in the recommending official's proposed decision;
  - (4) An order directing that, pursuant to this determination, as of a specified date a respondent shall be subject to the Bureau's supervisory authority under [12 U.S.C. 5514](/usc/12/5514.md) and informing a respondent that the respondent may petition for termination of the Bureau's supervisory authority no sooner than two years from the date of the order, and no more than annually thereafter; and
  - (5) **A copy of the recommended determination issued by the recommending official.**
- (c) Only decisional employees may advise and assist the Director in the consideration and disposition of a proceeding under this part.
- (d) A decision and order issued pursuant to [paragraph (a)(1)](#a-1) of this section shall constitute final agency action under [5 U.S.C. 704](/usc/5/704.md).
- (e) Any item required to be served on a respondent under this section shall be served pursuant to [§ 1091.107](/cfr/12/1091.107.md).
- (f) The Director may, at any time before making a determination, request that the respondent and initiating official provide any supplemental briefing that the Director considers appropriate.

# §1091.110. Voluntary consent to Bureau's authority.

- (a) At any time, a person and the initiating official may enter into a consent agreement by which the person voluntarily consents to the Bureau's supervisory authority under [12 U.S.C. 5514](/usc/12/5514.md). The consent agreement shall constitute an order authorized by [12 U.S.C. 5514(a)(1)(C)](/usc/12/5514.md?p=a-1-C).
- (b) A consent agreement under this section does not constitute an admission that a person is a nonbank covered person that is engaging, or has engaged, in conduct that poses risks to consumers with regard to the offering or provision of consumer financial products or services.
- (c) A consent agreement may specify a period of time that the person will be subject to the Bureau's authority under [12 U.S.C. 5514](/usc/12/5514.md). If the consent agreement specifies a period of time, it shall not be eligible for a petition for termination pursuant to [§ 1091.113](/cfr/12/1091.113.md). If the consent agreement does not specify a period of time, the consent agreement will continue until terminated pursuant to [§ 1091.113](/cfr/12/1091.113.md).
- (d) A consent agreement under this section shall state that the person waives any right to judicial review of the consent agreement.
- (e) The initiating official encloses a proposed consent agreement with the Notice of Reasonable Cause under [§ 1091.103(b)](/cfr/12/1091.103.md?p=b).