As 2016 drew to a close, various industry officials were busy making the case for legislation that would alter the structure of the CFPB and clip its wings as part of a strategy to scale back the Dodd-Frank Act and provide lenders with significant regulatory relief. Industry officials are confident they will encounter a more sympathetic White House with Donald Trump as the occupant. Analysts with Compass Point Research & Trading believe a number of important issues will be addressed as part of the final legislative regulatory relief package, including governance changes shifting the CFPB, as well as the Federal Housing Finance Agency and the Office of the Comptroller of the Currency, into commission structures. They also expect to see ...
Depending on how the PHH Corp. v. CFPB case shakes out, the bureau’s rulemaking abilities will likely be severely challenged by the incoming administration of President-elect Donald Trump. In a recent client note, Barbara Mishkin, of counsel in the Philadelphia office of the Ballard Spahr law firm, pointed out how Trump’s selection of Rep. Mick Mulvaney, R-SC, as his nominee for director of the Office of Management and Budget (OMB) could become a major impediment for the bureau in its effort to crank out new regulations going forward. “Mr. Mulvaney has been described as a staunch deficit hawk and his nomination is viewed as sending a signal that federal regulations are likely to face tough scrutiny in a Trump administration,” ...
Numerous experts, commenters and observers are under the assumption that President-elect Trump will have to let the courts reach a definitive legal decision on the PHH Corp. v. CFPB litigation before deciding whether to remove CFPB Director Richard Cordray without cause. However, that’s not the case, according to Aditya Bamzai, associate professor of law at the University of Virginia School of Law. In a recent online blog post, Bamzai said the (sometimes unstated) premise in various articles and reports is that the CFPB’s pending challenge to the panel decision somehow prevents any attempt to oust Cordray. “Such a premise appears to rest on two mistaken assumptions: that the president cannot exercise his removal authority absent an Article III judgment authorizing ...
The important constitutional issue of separation of powers, and the perhaps somewhat unorthodox manner in which the three-judge panel of the District of Columbia Circuit Court of Appeals concluded that the CFPB’s leadership structure is unconstitutional, justify the court granting the bureau’s request for a rehearing en banc in its dispute with PHH Corp., the U.S. Justice Department told the court. “The conferral of broad policymaking and enforcement authority on a single person below the president, whom the president may not remove except for cause ... raises a significant constitutional question that the Supreme Court has not yet squarely confronted,” the DOJ said. To date, the nation’s highest court has sanctioned a limitation on the power to remove principal officers ...
The long-running legal confrontation between PHH Corp. and the CFPB took another turn right before the holidays, with the nation’s eighth largest lender telling the District of Columbia Circuit Court of Appeals that its three-judge panel got it right in October when it ruled the CFPB’s leadership structure is unconstitutional. “The panel grounded its decision in existing Supreme Court precedent and other settled authority,” the company said. “It remedied a violation of the separation of powers by allowing the agency to continue to operate subject to basic constitutional constraints, without addressing the decision’s effect on past actions.” Further, “the panel interpreted the Real Estate Settlement Procedures Act according to its plain language and consistently with every other circuit to consider ...
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