United States: CFPB Structure Ruled Unconstitutional And Enforcement Reach Under RESPA Curtailed

Anthony E. DiResta and Kwamina Thomas Williford are Partners, and Cynthia A. "Cindy" Gierhart and Brian Goodrich are Associates in Holland & Knight's Washington, D.C. office.

HIGHLIGHTS:

  • The U.S. Court of Appeals for the District of Columbia Circuit has held unconstitutional the current structure of the Consumer Financial Protection Bureau (CFPB), condemning the agency's unparalleled independence and its immense power as a threat to individual liberty.
  • The ruling will not topple the CFPB; the agency will still continue to operate in substantially the same capacity. However, the identity of the agency will shift from an independent agency to an executive agency, which broadens the president's supervisory powers over it.
  • The court's ruling also curtails the CFPB's aggressive interpretation of the Real Estate Settlement Procedures Act (RESPA), providing the public with some added certainty that reasonable longstanding statutory interpretations and limitations periods should be recognized.

The U.S. Court of Appeals for the District of Columbia Circuit on Oct. 11, 2016, held unconstitutional the current structure of the Consumer Financial Protection Bureau (CFPB), broadly condemning the agency's unparalleled independence coupled with its immense power as a threat to individual liberty.

The ruling will not topple the CFPB; the agency will still continue to operate in substantially the same capacity. However, the identity of the agency will shift from an independent agency to an executive agency, which broadens the president's supervisory powers over the agency – including the power to fire the CFPB director at will rather than only for cause.

Significantly, the court rejected the CFPB's new interpretation of a "kickback" under the Real Estate Settlement Procedures Act (RESPA), noting that it ran afoul of due process principles by announcing and retroactively applying this new interpretation. The court noted that the CFPB must give the business community proper notice of what conduct may constitute illegal conduct before holding businesses accountable for that type of behavior.

The court further held that the statutes of limitations for claims brought by the CFPB are determined pursuant to each of the 19 consumer protection statutes that the CFPB is empowered by Congress to enforce – rejecting the CFPB's argument that each of those statutes' individual statute of limitations do not apply to claims brought in CFPB administrative proceedings.

BACKGROUND

PHH is a mortgage lender that appealed a $109 million order issued against it by the CFPB. In its appeal, PHH argued in part that the CFPB's single-director structure violates Article II of the Constitution.

PHH also argued that the CFPB incorrectly interpreted Section 8 of RESPA when it held that captive reinsurance arrangements were categorically barred. Previously, the U.S. Department of Housing and Urban Development (HUD) had ruled that reinsurance arrangements were lawful so long as the amount paid for the reinsurance did not exceed reasonable market value, thereby eliminating the potential for kickbacks or referral fees.

Even if the CFPB's interpretation of Section 8 was correct, PHH argued that this new interpretation could not be retroactively applied against PHH.

Finally, PHH argued that much of its allegedly unlawful conduct occurred outside the statute of limitations under RESPA. The CFPB argued that no statute of limitations applied when the CFPB seeks to enforce consumer protection laws in administrative proceedings.

The court ruled in favor of PHH on every issue.

OPINION

Constitutionality

In its 100-page opinion, the court chronicled the history of independent and executive agencies in the United States. Traditionally, executive agencies operate under a single director who is, in turn, subject to the direct supervision and serves at the will of the president. Independent agencies are not directly accountable to the president (that is, the president may remove heads of independent agencies only for cause), but because they typically are run by multiple members, they are held accountable by their fellow commissioners or board members.

That balance is vital to the separation of powers and a functioning system of checks and balances, the court held. Congress upset that balance by establishing the CFPB as an independent agency with a single director. While the CFPB compared itself to three other independent agencies with single-director structures, the court distinguished them from the CFPB for two reasons. First, they were recent iterations and therefore outside the court's historical analysis. And second, two of the agencies lack the broad enforcement powers over private citizens that the CFPB has, thereby limiting their potential for abuse. The third agency, the Federal Housing Finance Agency, "is a contemporary of the CFPB and merely raises the same question we confront here," said Judge Brett Kavanaugh, writing for the court.

The CFPB holds immense power to enforce consumer protection laws in federal court and administrative courts, to issue subpoenas, and to impose money damages and injunctions. "And all of this massive power is lodged in one person – the Director – who is not supervised, directed, or checked by the President or by other directors," Judge Kavanaugh wrote. Therefore, the court held, the CFPB's single-director structure is unconstitutional.

Interpretation of RESPA

Significantly, the court rejected the CFPB's position that captive reinsurance agreements violated the ban on referral payments under Section 8(a) of RESPA. The court found such interpretation to be flawed because "nothing" in the statute prohibits "bona fide" payments for goods actually furnished or for services actually performed. Drawing upon the bedrock principles of due process and notice, the court further noted that even if the CFPB's interpretation was consistent with the statute, "the CFPB violated due process by retroactively applying that new interpretation to PHH's conduct that occurred before the date of the CFPB's new interpretation." For approximately two decades, the federal government interpreted these provisions to find captive reinsurance agreements lawful as long as the amount paid did not exceed reasonable market value. The CFPB's proffered position afforded PHH no notice that its conduct would be deemed unlawful. According to the court, "individuals should have an opportunity to know what the law is and to conform their conduct accordingly."

Statute of Limitations

Beyond the constitutional and statutory issues lies PHH's argument that much of the CFPB's claims against it fall outside the statute of limitations. The CFPB argued that, under the Dodd-Frank Act, no statute of limitations applies to enforcement actions brought in administrative proceedings – only to court proceedings. In addition to finding the CFPB's interpretation of the Dodd-Frank Act incorrect, the court said the parties must look beyond the Dodd-Frank Act to each of the statutes that the CFPB enforces to determine the statute-of-limitation requirements under each. Under RESPA, the CFPB had a three-year statute of limitations to bring enforcement actions against PHH, regardless of whether the action is brought in court or in an administrative proceeding.

CONCLUSION

While the metamorphous from an independent agency to an executive agency may require minimal physical restructuring, it represents a major ideological shift in the authority of the CFPB. As the opinion points out, Congress is free to restructure the CFPB as an independent agency headed by multiple members, or it may remain as an executive agency headed by a single director. But under either structure, the CFPB will be subject to greater authority and accountability. Likewise, the court's ruling curtails the CFPB's aggressive interpretation of RESPA – providing the public with some added certainty that reasonable longstanding statutory interpretations and limitations periods should be recognized.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
Cadwalader, Wickersham & Taft LLP
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Cadwalader, Wickersham & Taft LLP
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions