Special Alert: D.C. Circuit Panel Rejects CFPB’s RESPA Interpretation and Alters its Structure in PHH Corp. v. CFPB
On October 11, a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit issued an opinion vacating a $109 million penalty imposed on PHH Corporation under the anti-kickback provisions of the Real Estate Settlement Procedures Act (RESPA), concluding that the CFPB misinterpreted the statute and violated due process by reversing the interpretation of the prior regulator and applying its own interpretation retroactively. Furthermore, the panel rejected the CFPB’s contention that no statute of limitations applied to its administrative actions and concluded that RESPA’s three-year statute of limitations applied to any actions brought under RESPA.
In addition, a majority of the panel held that the CFPB’s status as an independent agency headed by a single Director violates the separation of powers under Article II of the U.S. Constitution. However, rather than shutting down the CFPB and voiding all of its regulations and prior actions, the majority chose to remedy the defect by making the CFPB’s Director subject to removal at will by the President. In effect, this makes the CFPB an executive agency (like the Department of the Treasury) rather than, as envisioned by the Dodd-Frank Act, an independent agency (like the Federal Trade Commission). (One member of the panel, Judge Henderson, dissented from this portion of the opinion on the grounds that it was not necessary to reach the constitutional issue because the panel was already reversing the CFPB’s interpretation of RESPA.)
The panel remanded the case to the CFPB to determine whether, within the three-year statute of limitations, the payments to PHH’s affiliate exceeded the fair market value of the services provided in violation of RESPA. The CFPB is expected to petition for en banc reconsideration by the full D.C. Circuit or to seek direct review by the United States Supreme Court. Therefore, final resolution of this matter may be delayed by a year or more.
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Questions regarding the matters discussed in this Alert may be directed to any of our lawyers listed below, or to any other BuckleySandler attorney with whom you have consulted in the past.
- Jeremiah S. Buckley, (202) 349-8010
- Joseph M. Kolar, (202) 349-8020
- John P. Kromer, (202) 349-8040
- Jon David D. Langlois, (202) 349-8045
- Jeffrey P. Naimon, (202) 349-8030
- Benjamin K. Olson, (202) 349-7924
- Matthew P. Previn, (212) 600-2310
- Joseph J. Reilly, (202) 349-7965
- Clinton R. Rockwell, (310) 424-3901
- Michelle L. Rogers, (202) 349-8013
- Kathleen C. Ryan, (202) 349-8055
- Andrew L. Sandler, (202) 349-8001
- Brandy A. Hood, (202) 461-2911
- Sasha Leonhardt, (202) 349-7971
- Sherry-Maria Safchuk, (310) 424-3917
- Steven vonBerg, (202) 524-7893