A growing consensus is emerging among legal experts that someone will challenge in court President Obama’s contentious recess appointment of Richard Cordray as the first director of the Consumer Financial Protection Bureau. But a final outcome could take years and have no impact on the agency’s actions while the case is unfolding. “These appointments establish a dangerous precedent that threatens the confirmation process and undermines the system of checks and balances embedded in the Constitution,” a number of House Republicans said in a letter they fired off to the president after he made his...

Fed Governor Sarah Bloom Raskin late last week stumped for creating an effective enforcement system to deal with shortcomings in the mortgage servicing industry that have come to light since the foreclosure crisis, as state officials pressed to expand a potential settlement over past abuses. “The law is not a scarecrow where the birds of prey can seek refuge and perch to plan their next attack,” Raskin said in a speech to a group of attorneys. The Fed governor said it’s important for servicers to have transparent, enforceable and sensible rules, adding that deferring to “standard industry...

Mortgage industry groups are urging the U.S. Supreme Court to pay close attention to the wording of the Fair Housing Act – specifically phrasing that’s not in the 1968 law – in deciding whether fair lending charges can be brought on the basis of disparate impact. In an amicus brief filed in the case of Magner v. Gallagher, mortgage trade groups said the Fair Housing Act “requires proof of intentional discrimination and does not envision a violation based on disparate impact.” The brief was filed by K&L Gates on behalf of the Independent Community Bankers of America, the Consumer Mortgage...

The N.Y. Supreme Court Appellate Division overturned a ruling that dismissed a foreclosure case because attorneys representing the lender failed to meet a deadline for filing a conflict-of-interest document. Judge Arthur Schack dismissed the case brought by U.S. Bank because its attorneys, the now infamous Steven J. Baum law firm, submitted a conflict-of-interest filing 123 days after it was due. The case involved Kelvy Guichardo, a defendant who defaulted on his mortgage. Schack was concerned that there might be a conflict of interest for Steven J. Baum and ordered the law firm to submit an...

It didn’t take long for the Consumer Financial Protection Bureau to get its regulatory groove on after President Obama made a recess appointment of Richard Cordray as the agency’s first director. Just hours after the appointment was announced Jan. 4, Cordray revealed the newly empowered bureau was beginning its supervision of non-bank mortgage lenders and other non-bank entities.“One difficulty we faced until now was that, without a director, we were unable to address all the problems we were created to tackle. In particular, we lacked the ability to supervise financial institutions other than big banks – like non-bank mortgage lenders and servicers and payday lenders,” Cordray said in a speech. “Many of these institutions had no regular federal oversight in the run-up to the financial crisis. They led a race to the bottom that pushed aside responsible businesses, including community banks and credit unions, and greatly harmed consumers. “I am pleased to say that we will now be able to exercise the full authorities granted to us under the law and begin to supervise these non-banks,” the new director added.

President Barack Obama surprised the mortgage lending industry and friend and foe alike with a controversial decision to make a recess appointment of Richard Cordray as director of the Consumer Financial Protection Bureau, even though Congress technically remains in session. Assuming the recess appointment of Cordray proceeds without a challenge (see related story on page 2), it’s now “game on” for the CFPB and the mortgage lending industry, according to Christopher Willis, a partner in the Atlanta office of the Ballard Spahr law firm. “Unless the appointment is successfully challenged, this move will open up a whole range of powers to the bureau, including the power to regulate non-bank players and the authority to act under the ‘unfair, deceptive or abusive’ provisions in the Dodd-Frank Act,” he said. “That sets the stage for whether someone wants to challenge that power.”

President Obama’s contentious recess appointment of Richard Cordray, his nominee to head the Consumer Financial Protection Bureau, sets the stage for legal challenges by mortgage lenders affected by actions of the CFPB. One interesting angle that has emerged in discussions with industry attorneys so far is the possibility that, sometime in the future, an aggrieved mortgage lender or servicer that becomes the focus of a CFPB enforcement action could block it by challenging the legality of the action. A company might be able to do so on the basis that the bureau may have acted unlawfully by utilizing an authority it really didn’t have because the CFPB director might not have been legally confirmed by the Senate. “There are issues with this appointment,” said Anne Canfield, executive director of Canfield & Associates, the first of which is the question of whether the Senate is in session or in recess.

The Countrywide Financial legacy continues to sour for Bank of America, which recently was compelled to agree to pay $335 million to settle charges that Countrywide allowed pricing discrimination against African American and Hispanic borrowers, along with unchecked steering to subprime loans, when similarly qualified Caucasian borrowers were given prime loans at lower cost. It’s the largest fair lending settlement to date. This is the first time that the Justice Department has alleged and obtained relief for borrowers who were steered into mortgages because of their race or national origin, government officials said. The settlement – which requires court approval – mandates that Countrywide implement policies and practices to prevent discrimination if it returns to the lending business during the next four years. Countrywide currently operates as a subsidiary of Bank of America but does not originate new loans.

When it comes to contemplating the wide range of mortgage lending compliance challenges in 2012, it might be useful to borrow from former Defense Secretary Donald Rumsfeld: there are “knowns,” things we know and things we know we don’t know, and there are “unknowns,” things we don’t know that we don’t know.In terms of some of the “knowns,” the mortgage servicing exam procedures released back in October by the Consumer Financial Protection Bureau provide a roadmap for some of the emphasis areas mortgage lenders can expect from their new regulator, according to Christopher Willis, partner in the Atlanta office of Ballard Spahr. “I think fair lending is going to be a very big emphasis area for them,” he said. The recent settlement between the Department of Justice and Bank of America “sets the stage for that to continue to be a very public, very big issue. And that was an origination case; that wasn’t even a servicing case.“And if you read the mortgage servicing exam procedures, the CFPB is saying they want to apply fair lending analysis to things like foreclosures and loan modifications,” he added. “I think that’s going to be a major source of activity.”

This past week, a majority of participants in an Inside Regulatory Strategies online poll were dismissive of the Consumer Financial Protection Bureau and whether it’s needed and ought to be kept around. Participants were asked, “based on the agency’s regulatory pronouncements and announcements to date, how do you think the agency is doing?” As of press time, 43 percent agreed that, “It’s not needed and should be closed down.” Another 29 percent agreed that, “It’s doing the best it can, but it needs a permanent director.” The remaining 29 percent sided with the view that, “It’s too early to tell what kind of job the CFPB is doing.” No one agreed with the position that, “It’s doing a good job of balancing consumer protections with regulating the mortgage industry.”