Can online lead generation be done compliantly under Section 8 of the Real Estate Settlement Procedures Act? The answer is yes, but it is important to navigate the impermissible activities recently identified by the Consumer Financial Protection Bureau. On February 7, 2023, the CFPB issued long-awaited guidance in an advisory opinion addressing how it interprets
CFPB Replaces Cordray-Era MSA Guidance with New RESPA Section 8 FAQs
The Real Estate Settlement Procedures Act is ambiguous, and compliance often turns on the facts of arrangements. For that reason, settlement service providers have been asking the Consumer Financial Protection Bureau for guidance since it took responsibility for RESPA nearly 10 years ago. These calls were amplified when Section 8 of RESPA was an early…
The Wait Is Over: D.C. Circuit Holds That While the CFPB’s Structure May Be Lawful, Its RESPA Interpretation Is Not
The U.S. Court of Appeals for the D.C. Circuit (the “court”) has issued its long-awaited en banc decision in PHH v. CFPB. In a January 31, 2018 opinion, the court rejected the three-judge panel’s conclusion that the structure of the Consumer Financial Protection Bureau (“CFPB”) is unconstitutional. But the en banc court reinstated the…
CFPB Director Richard Cordray to Step Down
In an email to staff, Consumer Financial Protection Bureau (CFPB) Director Richard Cordray announced on Wednesday, November 15, that he will be stepping down this month. His departure was widely anticipated. Because the CFPB is headed by a single director – as opposed to a 5-member commission – the agency’s director wields enormous power. Below we address some of the most frequently asked questions regarding Director Cordray’s resignation.
Continue Reading CFPB Director Richard Cordray to Step Down
Happy Birthday CFPB
The Consumer Financial Protection Bureau (CFPB) marks its fifth birthday having made a substantial mark on the consumer financial services marketplace. To mark this event, we have compiled a retrospective of the CFPB’s first five years. The retrospective provides an overview of the CFPB’s actions in the realms of rulemaking, supervision, and enforcement. While it …
The Risks of Changing One’s Mind
It is by now settled that federal agencies have broad authority to fill the gaps left by Congress. When an agency has been entrusted with administering an ambiguous statute, the agency’s interpretation need only be “reasonable” to be controlling in court.
The implied premise of so-called Chevron deference is that there will sometimes be more than one “reasonable” course that an agency might choose. The agency’s choice may well be driven by ideological concerns—the sorts of concerns that sometimes change with the winds of political change.
So what to do when an agency changes its mind?
Continue Reading The Risks of Changing One’s Mind