The CFPB and The Real Estate Settlement Procedures Act, Section 8, After the En Banc PHH Decision

摘要

The administrative enforcement action that the Consumer Financial Protection Bureau (CFPB) brought against PHH Corporation has generateti as much controversy, and has had as many dramatic developments, as nearly any action that the CFPB has taken since it opened its doors in 2011. This included the DC Circuit en banc panel's affirmation of the original panel's rebuke and rejection of the attempt by the former director of the CFPB, Richard Cordray, to solidify his consumer protection policy objective by upending settled law based on guidance by the US Department of Housing and Urban Development (HUD) concerning the existence of statutory exceptions to kickback and referral fee prohibitions in Section 8(a) of the Real Estate Settlement Procedures Act (RESPA). Similarly, the en banc panel rejected Director Cordray's unfounded ruling that administrative enforcement actions by the CFPB, unlike civil action enforcement actions, were not subject to any statute of limitations, which he had used to raise the administrative law judge's (ALJ) disgorgement penalty by more than $100 million. Thus, the en banc panel remanded the matter back to the CFPB, essentially to the new Interim Director appointed by President Trump, Mick Mulvaney, to make factual findings consistent with its decision.