Category Archives: Acts & Regulations

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CFPB Overreaches in Handling Alleged RESPA ABA Exemption Issues in Meridian

RESPA
On September 27, 2017, the Consumer Financial Protection Bureau (CFPB) announced the settlement of its Real Estate Settlement Procedures Act (RESPA) enforcement action against Meridian Title Corp. (Meridian), an Indiana-based title insurance agency, based on alleged title insurance referrals made to an underwriter partially owned by three of Meridian’s executives. The CFPB faulted Meridian for … Continue reading this entry

You Can’t Ignore RESPA Section 8(c)

RESPA
It’s been over a year since the Consumer Financial Protection Bureau (CFPB) turned the real estate settlement services industry on its head by announcing in its first ever administrative appeal that Section 8(c) of the Real Estate Settlement Procedures Act (RESPA) was not, as it had long been interpreted, a series of safe harbor exemptions … Continue reading this entry

On Remand From Supreme Court in Spokeo, Ninth Circuit Holds FCRA Violation Satisfies Article III Standing

TCPA
The Ninth Circuit finally weighed in again on Article III standing issues after the remand of the Spokeo case from the United States Supreme Court.  The Supreme Court in Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016), addressed whether a willful violation of the Fair Credit Reporting Act (“FCRA”), absent proof of actual damages, … Continue reading this entry

Back to Basics: A Review of Recent SCOTUS Personal Jurisdiction Jurisprudence

Trump
As its term drew to a close, the Supreme Court handed down its latest decision on personal jurisdiction in a case entitled Bristol-Myers Squibb Co. v. Superior Court of Cal., San Francisco Cty.[1]  Over the last six years, the Supreme Court has issued six opinions clarifying the limits of courts’ personal jurisdiction, each invalidating the … Continue reading this entry

CFPB Loses Borders Case: the Court Construes RESPA’s Statutory ABA Exemption according to its Plain Language

RESPA
On July 12, 2017, a federal district court in Kentucky issued a summary judgment ruling for the defense in the ongoing Borders & Borders case1 brought by the Consumer Financial Protection Bureau (CFPB or Bureau).  In this long-running case, the Bureau alleged that profit distributions paid to joint venture partners constituted illegal kickbacks in violation of … Continue reading this entry

A Cautionary Ruling for Website Accessibility

Websites may constitute “public accommodations” under the Americans with Disabilities Act (ADA), according to one court. On June 12, 2017, in a case of first impression, a federal district court in Gil v. Winn-Dixie Stores Inc. held that a website that is heavily integrated with physical store locations and operates as “a gateway to the … Continue reading this entry

District Court Rebuffs CFPB’s RESPA “Continuing Violations” Theory

CFPB
On June 6, 2017, a federal district court in Menichino v. CitiBank[1] rejected an interpretation of the RESPA Section 8 statute of limitations espoused by the CFPB in captive reinsurance cases, instead concluding that RESPA’s limitations period runs from the date of the occurrence of the claimed violation, which is the date of the loan … Continue reading this entry

Fleeting Glimpse of RESPA Issues in PHH Argument as Court Focuses on Bureau Constitutionality

CFPB
Although the RESPA issues were addressed in the briefs filed by the parties in the PHH case, at oral argument this week the parties and the en banc D.C. Circuit focused heavily on whether the president’s authority is unconstitutionally limited by the broad powers of the Consumer Financial Protection Bureau (“Bureau”) and the fact that … Continue reading this entry

Shouldn't You Be Using Arbitration Agreements to Reduce the Costs of Litigation and the Risk of Class Action Claims?

Seventh
Businesses across the country regularly bemoan the time and expense of litigation. Even when businesses are successful in defending non-meritorious consumer claims alleging unfair or deceptive practices, false advertising, technical violations of statutory rules, and so on, they nonetheless essentially suffer defeat because of the time and resources they expend to fend off such claims. … Continue reading this entry

The CFPB's RESPA Consent Orders: Eight Key Takeaways

Consumer Financial Protection Bureau
The Consumer Financial Protection Bureau (CFBP) on January 31, 2017 issued consent orders settling enforcement claims that a major mortgage lender violated the Real Estate Settlement Procedures Act (RESPA) in connection with its marketing, desk rental, lead purchase and other agreements with hundreds of real estate brokers and other settlement service providers (the “Consent Orders”). … Continue reading this entry

IRS Issues New Requirements for IVES Participants

On June 23rd, the IRS dropped a bombshell on the lending industry.  As of Midnight on July 1, 2016, many lenders will no longer be able to  verify directly borrower income except through snail mail. If the IRS sticks to its plan, domestic lending is about to slow to a snail’s pace.  Based on a … Continue reading this entry

Reply Brief filed in Spokeo v. Robins – Oral Argument next on Nov. 2

In its reply brief in Spokeo v. Robins, petitioner Spokeo comes out of the gate with the consequential argument that for Robins to prevail, the Supreme Court must accept his position that every violation of a statutory right qualifies as an injury-in-fact. Indeed, the case is much larger than Fair Credit Reporting Act (FCRA) inaccuracies … Continue reading this entry

Response from Robins in the Spokeo Case at the U.S. Supreme Court

This week, the respondent in Spokeo v. Robins filed his merits brief. The main thrust of the brief challenges Spokeo’s assertion that Robins lacks standing without “real-world” injury. Instead Robins argues that he meets the Constitution’s “Case and Controversy” requirement on one of several bases to vindicate his statutory rights under the Fair Credit Reporting Act … Continue reading this entry

CFPB Extends TRID Effective Date to October 1

The Consumer Financial Protection Bureau (“CFPB”) announced that it would provide mortgage lenders with additional time to prepare for the highly anticipated TILA-RESPA Integrated Disclosures (“TRID”). Since the issuance of TRID’s final regulations in November 2013, mortgage lenders have been frantically preparing for its effective date of August 1, 2015. Generally speaking, TRID will consolidate … Continue reading this entry

A Bit of Grace

The Consumer Financial Protection Bureau (CFPB) has finally agreed to bend under the strain of numerous requests from financial industry participants and 255 bi-partisan House members and 41 senators, who requested that the CFPB delay the implementation of the new Truth in Lending Act and Real Estate Settlement Procedures Act Integrated Disclosures (TRID) requirements.  Although … Continue reading this entry

U.S. Supreme Court Accepts Review of Robins v. Spokeo, Inc.

The Supreme Court recently accepted review of one of the most talked about privacy class action and consumer cases of the past year, Robins v. Spokeo, Inc., No. 13-1339 (U.S.). The issue before the Court is whether Congress can confer Article III standing on a plaintiff who suffers no concrete harm, but who can recover … Continue reading this entry

Legal Issues in Cause-Related Marketing

Cause-related marketing is frequently used by businesses to bolster sales, improve brand reputation, and improve public relations. Under the laws of a number of states, when a business advertises that it will make a charitable contribution to a charity when a consumer purchases a product, the business becomes a commercial co-venturer with the charity. Successful … Continue reading this entry

State Attorneys General Return to Health Care Reform in U.S. Supreme Court

On Wednesday, the U.S. Supreme Court will hear arguments in what is being teed up to be “Round 2” on the Affordable Care Act (ACA). In the case King v. Burwell, the question before the Court is whether the IRS can extend tax credit subsidies to those using the federal health care exchange when the … Continue reading this entry

State AGs Take Sides as U.S. Supreme Court Hears Housing Discrimination Case

On January 21st, the U.S. Supreme Court will hear argument in Texas Department of Housing and Community Affairs v. Inclusive Communities Project, on the question of whether disparate impact claims for discrimination are recognized under the Fair Housing Act (FHA). The third time may be the charm as the Supreme Court has twice dismissed recent … Continue reading this entry

The Supreme Court Hears Case Regarding Private Enforcement of the Medicaid Act Against States

On Tuesday, January 20, 2015, the U.S. Supreme Court will hear oral argument in a significant Medicaid-preemption case from the Ninth Circuit, Exceptional Child Center, Inc. v. Armstrong. In that case, Medicaid-participating health care facilities in Idaho sued the state’s Department of Health and Welfare officials for failure to properly reimburse the providers for their … Continue reading this entry

The Supreme Court Just Held that TILA Rescission is Accomplished with Notice Alone

Until today, courts were split over what steps borrowers must take to rescind a home loan. Some courts had ruled that a borrower simply had to send a rescission notice to his creditor within three years after taking out a loan. Others said the notice alone does not suffice; a lawsuit must be filed within three … Continue reading this entry

U.S. Supreme Court Hears Natural Gas Case in Which 21 State AGs File Brief

On Monday, January 12, the U.S. Supreme Court will hear oral argument in the preemption case, Oneok v. Learjet. In reliance on state law private action remedies, Learjet sued Oneok over market manipulation in natural gas prices to large volume purchasers. 21 bipartisan state Attorneys General filed an amicus brief defending their state regulatory authority on … Continue reading this entry

Eleventh Circuit Hears Oral Argument in Landmark TCPA Case

Industry now waits as the Eleventh Circuit considers whether to overturn a Florida district court decision rejecting the Federal Communications Commission’s definition of prior express consent under the Telephone Consumer Protection Act. On September 18, 2014, the United States Court of Appeals for the Eleventh Circuit heard argument in the Mais v. Gulf Coast Collection … Continue reading this entry

Truth in Lending Act and Consumer Leasing Act Dollar Thresholds Raised: Fewer Transactions Exempt

More consumer credit and leasing transactions will be subject to the Truth in Lending Act (TILA) and Consumer Leasing Act (CLA) in 2015. Effective January 1, 2015, the dollar threshold for exemption of most consumer credit transactions and consumer leases from TILA, the CLA, and their implementing regulations (Regulations Z and M) was increased from $53,500 (the … Continue reading this entry