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1 The Consumer Financial Protection Bureau: The Government s Increased Role in Consumer Protection Laws Andrew C. Sayles Connell Foley LLP 85 Livingston Ave. Roseland, NJ (973)

2 Andrew C. Sayles is a senior associate with Connell Foley LLP in Roseland, New Jersey, where he focuses on complex litigation in the areas of professional liability, financial services, commercial disputes, construction, copyright infringement, directors and officers claims, and class action defense. Against this background, Mr. Sayles has developed a heightened experience for claims arising under federal consumer financial protection laws including the Fair Debt Collection Practices Act (FDCPA), Truth in Lending Act (TILA) and Real Estate Settlement Procedures Act (RESPA). Additionally, Mr. Sayles regularly counsels contractors, architects and engineers in negligence and malpractice claims arising during all phases of project development and frequently represents attorneys, law firms, and other professionals in malpractice actions. Mr. Sayles writes regularly on matters involving professional liability. He is a member of DRI s Professional Liability Committee and currently serves as co-chair for its webcast subcommittee and as a liaison with DRI s Young Lawyers Committee.

3 The Consumer Financial Protection Bureau: The Government s Increased Role in Consumer Protection Laws Table of Contents I. Overview of the CFPB A. Introduction B. History and Purpose C. Enforcement and Regulatory Abilities of the CFPB D. Federal Consumer Protection Laws Now Within CFPB Authority II. CFPB Regulation Where Do Professionals Fit In A. Who Is Regulated by the CFPB B. How the CFPB Exercises Its Powers III. Recent Issues Concerning the CFPB A. Attorney-Client Privilege B. Larger Participant C. Constitutionality of the CFPB and its Actions IV. Conclusion The Consumer Financial Protection Bureau: The Government s Increased Role in... Sayles 111

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5 The Consumer Financial Protection Bureau: The Government s Increased Role in Consumer Protection Laws I. Overview of the CFPB A. Introduction The Consumer Financial Protection Bureau ( CFPB or Bureau ) was created through the Dodd- Frank Wall Street Reform and Consumer Protection Act of 2010, P.L (Dodd-Frank Act), passed by Congress on July 21. Its primary, and almost exclusive, focus is consumer protection. Although still in its infancy, the CFPB has been at the center of multiple industry and political based debates concerning its far reaching role, powers and future. Of note, the consolidation of existing powers and grant of new abilities to the Bureau will impact various entities and individuals associated with financial products and services. This article serves to provide an overview of the CFPB and to discuss the relevance of the Bureau to various professionals. B. History and Purpose Title X to the Dodd-Frank Act, entitled the Consumer Financial Protection Act of 2010 ( CFP Act ), formally established the CFPB as an independent bureau within the Federal Reserve System. Before the CFP Act went into effect on July 21, 2011, responsibility for the promulgation of rules to enforce and implement the bulk of federal consumer financial protection laws and authority to supervise individuals and companies offering and selling consumer financial products and services were generally shared by the Federal Reserve Board ( FRB ), the Federal Trade Commission ( FTC ), the Department of Housing and Urban Development ( HUD ) and five different banking regulators. Authority among the five banking regulators further varied depending on their depository charters. The end result was multiple government agencies implementing and enforcing selected portions of selected federal consumer financial protection laws. In the wake of an unprecedented global financial crisis, consumer advocates and scholars argued that the complex, fragmented consumer financial protection regulatory system in place failed to adequately protected consumers and created market inefficiencies to the detriment of financial institutions and consumers. See U.S. Congressional Research Service. The Consumer Financial Protection Bureau (CFPB): A Legal Analysis (R42572; June 7, 2012), by David H. Carpenter. Congress, in response to such criticism, passed the CFP Act in an effort to consolidate rulemaking, supervisory and enforcement authority of federal consumer financial protection laws into one regulator the CFPB. According to the Bureau s website, Congress established the CFPB to protect consumers by carrying out federal consumer financial laws. See The purpose of the CFPB is threefold: (1) to educate consumers; (2) to gather and analyze information to better understand consumers, financial service providers and consumer financial markets; and (3) to supervise banks, credit unions and other financial entities, and enforce federal consumer financial laws. 12 U.S.C In furtherance of these objectives, the CPFB serves to implement and, where applicable, enforce federal consumer financial laws consistently for the purpose of ensuring that all consumers have access to markets for consumer financial products and services and that such markets are fair, transparent and competitive. Dodd-Frank Act, 1021(a). C. Enforcement and Regulatory Abilities of the CFPB Under 12 U.S.C. 5531, the Bureau has broad authority to administer, enforce, and otherwise implement the provisions of federal consumer financial law in order to prohibit unfair, deceptive or abusive acts The Consumer Financial Protection Bureau: The Government s Increased Role in... Sayles 113

6 or practices. Within this scope, the CFPB has substantial powers to undertake rulemaking and regulatory authority over the enumerated consumer laws identified under 5531(12) including the ability to create new regulations and to take enforcement and supervisory actions concerning consumer financial products and entities that deal in them. The broad authority of the CFPB is further enhanced through protections to the Bureau under Dodd- Frank. First, and unlike most executive agencies, = the CFPB does not rely upon appropriations for funding. Instead, the Bureau is funded through the Federal Reserve System s operating expenses in an amount to be determined by the Director to be reasonable necessary to carry out the authorities of the Bureau. Dodd- Frank Act Accordingly, in its present form the CFPB is somewhat insulated from fluctuating nature of the congressional appropriations process. Second, the CFPB s authority is concentrated under a single Director, as opposed to a board or commission. While the President s appointment of the Director is subject to the advice and consent of the Senate, once appointed to his five year term the Director may only be removed for inefficiency, neglect of duty or malfeasance in office. See Dodd-Frank Act 1011, 12 U.S.C This structure allows the Bureau to operate independently from the President and Congress. D. Federal Consumer Protection Laws Now Within CFPB Authority Through the Dodd-Frank Act, the CPFB now has authority that was previously divided among at least seven federal agencies. See 12 U.S.C. 5531(12). The Bureau is now authorized to promulgate and enforce the following federal consumer financial laws: The Alternative Mortgage Transaction Parity Act of 1982 (12 U.S.C et seq.); The Consumer Leasing Act of 1976 (15 U.S.C et seq.); The Electronic Fund Transfer Act (15 U.S.C et seq.), except with respect to section 920 of that Act [15 U.S.C. 1693o 2]; The Equal Credit Opportunity Act (15 U.S.C et seq.); The Fair Credit Billing Act (15 U.S.C et seq.); The Fair Credit Reporting Act (15 U.S.C et seq.), except with respect to sections 615(e) and 628 of that Act (15 U.S.C. 1681m (e), 1681w); The Home Owners [2] Protection Act of 1998 (12 U.S.C et seq.); The Fair Debt Collection Practices Act (15 U.S.C et seq.); The Federal Deposit Insurance Act (subsections (b) through (f) of section 43) (12U.S.C. 1831t (c) [(b)] (f)); The Gramm-Leach-Bliley Act, sections 502 through 509 of (15 U.S.C ) except for section 505 [15 U.S.C. 6805] as it applies to section 501 (b) [15 U.S.C. 6801(b)]; The Home Mortgage Disclosure Act of 1975 (12 U.S.C et seq.); The Home Ownership and Equity Protection Act of 1994 (15 U.S.C note); The Real Estate Settlement Procedures Act of 1974 (12 U.S.C et seq.); The S.A.F.E. Mortgage Licensing Act of 2008 (12 U.S.C et seq.); The Truth in Lending Act (15 U.S.C et seq.); The Truth in Savings Act (12 U.S.C et seq.); Section 626 of the Omnibus Appropriations Act, 2009 (Public Law 111 8) [12 U.S.C.5538]; and The Interstate Land Sales Full Disclosure Act (15 U.S.C. 1701). 114 Professional Liability Seminar December 2012

7 Taken as a whole, these enumerated consumer laws govern a broad and diverse set of consumer activities and services including debt collection practices, debit card transfers, overdraft services, consumer leases, mortgage lending, credit card lending, mortgage appraisals, real estate settlement practices, and credit reporting, among others. As a result, the transfer of rulemaking authority under these laws represents a major source of the Bureau s regulatory powers. Although these consumer laws are predominately disclosure oriented, they also include various substantive restrictions. See The Consumer Financial Protection Bureau (CFPB): A Legal Analysis, D. Carpenter, supra. II. CFPB Regulation Where Do Professionals Fit In A. Who Is Regulated by the CFPB The CFPB regulates a wide array of bank and nonbank institutions, referred to as covered persons, or any person or affiliate of that person that engages in offering or providing a consumer financial product or service. 12 U.S.C. 5481(6). Covered persons include all large depositories (i.e. banks with more than $10 million in assets), payday lenders, providers of mortgage-related services, student lenders, and larger participants, which recently include credit bureaus or credit reporting companies. Despite the Bureau s broad power, there are industries which are exempt from CFPB jurisdiction. Pursuant to 12 U.S.C and 5519, the CPFB may not exercise any authority over the following entities or persons, when such persons are participating in core business activities: Merchants or retailers of nonfinancial products and services, Real estate brokerage, Mobile home retailers, Accountants and income tax preparers, Attorneys, State insurance regulators regulated parties, Employee benefit plans, State securities commission regulated parties, Investment advisors and other Securities and Exchange Commission regulated parties, Commodity Futures Trading Commission regulated parties, Farm Credit Administration regulated parties, Charitable organizations, Insurance companies, Auto dealers. However, there are two exceptions that will subject these industries to CFPB jurisdiction. First, the CFPB may enforce any of the enumerated federal consumer financial protection laws or other authorities transferred from other federal agencies to the CFPB under the Dodd-Frank Act against any entity or individual, regardless of whether they are exempted by 5517 and Second, when offering or providing a consumer financial product or service described in any subparagraph of 12 U.S.C. 5481(5). In general, the term financial product and service includes: Extending credit and servicing loans, The Consumer Financial Protection Bureau: The Government s Increased Role in... Sayles 115

8 Extending or brokering leases of personal or real property that are the functional equivalent of purchase finance arrangements, Providing real estate settlement services or appraisals, Acting as a custodian of funds or financial instrument on behalf of a consumer, Selling, providing, or issuing stored value or payment instruments (does not include advertising), Providing check cashing, check collection or check guaranty services, Consumer leases, Providing payment or other financial date processing products or services to a consumer by any technological means, Providing financial advisory services, including providing credit counseling to any consumer and assisting a consumer with debt management or debt settlement, modifying the terms of any extension of credit or avoiding foreclosure, Collecting or maintaining consumer report information, including information pertaining to credit history, and Collecting debt related to any consumer financial product and service. 12 U.S.C. 5481(15); 12 U.S.C It is primarily through these two exceptions to the core business exemptions that professionals may find themselves subject to CFPB authority. Accordingly, the list of professionals subject to oversight and regulation by the Bureau includes, but is not limited to: Real estate brokers; Real Estate Agents; Income tax preparers; Accountants; Attorneys; Real estate appraisers; Mortgage Brokers. Thus, while the core business activities of professionals such as attorneys and real estate brokers may be primarily exempt from the CFPB, in the event their services fall within one of the enumerated consumer laws or touch upon services regulated under the CFP Act, the Bureau will retain authority. For example, an attorney representing a secured creditor in a foreclosure proceeding would be subject to CFPB oversight through the Fair Debt Collection Practices Act even though the core business activity itself would otherwise be exempt from the Bureau s authority. Alternatively, if an attorney regularly converts structured legal settlements to lump sum payments for non-clients, he would likely be subject to CFPB oversight. Similarly, a real estate broker advertising the sale of a real estate with suggested credit terms available may find himself facing scrutiny from the CFPB for potential violations of the Truth in Lending Act. B. How the CFPB Exercises Its Powers The CFPB has the authority to file civil actions in federal district court or state court and may also commence administrative enforcement proceedings. Further, the Bureau has authority to conduct investigations to determine whether persons or entities have engaged in conduct that violates one of the enumer- 116 Professional Liability Seminar December 2012

9 ated consumer laws. See 12 U.S.C. 5512(c)(4)(A). Of note, the CFPB has advised that its investigatory powers extend to materials and information that would otherwise be protected under the attorney-client privilege. See Bulletin 12-01, Recently adopted rules promote a selective waiver clause and declare that a covered person does not waive any applicable privilege with respect to third parties by providing privileged information to the CFPB or when the CFPB shares the information with any other agency. See 12 C.F.R In order to enforce these laws, the CFPB is able to autonomously issue rules, orders, guidance, interpretations, statements of policy, examinations and enforcement actions. Included in its authority is the ability to: Conduct hearings and adjudication proceedings, Issue cease-and-desist orders, Penalize covered persons upward of $1 million for each day an individual is in violation of a consumer law, 12 U.S.C.A. 5565(c)(2)(C), Bring a bank directly to court on any fair-lending matter, rather than go through the Justice Department, and File charges pursuant to 12 U.S.C.A If any person violates a federal consumer financial law, the CFPB, in its own name and through its own attorneys, may commence a civil action against such person to impose a civil penalty, or seek all appropriate legal and equitable relief, including, but not limited to the following: Permanent or temporary injunction, Recession or reformation of contracts, Refund of money or return of real property, Restitution, Disgorgement or compensation for unjust enrichment, Payment of damages and other monetary relief, Public notification regarding the violation, Limits on the activities or functions of the person against whom the action is brought, and Civil monetary penalties (which can go either to victims or to financial education). 12 U.S.C The provisions that allow the Bureau to seek restitution and damages are significant because other regulators, such as the SEC, currently lack such power. When commencing a civil action, the CFPB must notify the Attorney General before proceeding. The CFPB, however, is unable to prosecute criminal charges, and must transmit any evidence of a violation of criminal law to the Attorney General. 12 U.S.C Additionally, the applicable penalties through the CFP Act are substantial. The CFPB may impose civil penalties up to $5,000 per day for the violation of a rule imposed by the Bureau and up to $25,000 per day for the reckless violation of a federal consumer protection law. In the event of a knowing violation of a federal consumer protection law, the CFPB may seek to impose penalties up to $1,000,000 per day. A list of enforcement actions, including penalties imposed, is available through the Bureau s website: blog/category/enforcement/. The Consumer Financial Protection Bureau: The Government s Increased Role in... Sayles 117

10 III. Recent Issues Concerning the CFPB A. Attorney-Client Privilege The Bureau has the ability to request and share any privileged information from a covered person or service provider. 12 U.S.C. 5512(c)(6)(B). The CFPB will request privileged information only when it determines that such information is material to its supervisory objectives and that it cannot practicably obtain the same information from non-privileged sources. The CFPB can share the privileged material, excluding personally identifiable financial information about a consumer, with state law enforcement agencies, including state attorney generals. However, financial institutions and individuals falling in the CFPB s purview should be aware that although privileged information can be seen by other regulators, CFPB rules prevent that information from being used in any enforcement proceeding. Recently, on June 28, 2012, the CFPB adopted a new regulation, 12 C.F.R , based on the doctrine of selective waiver, which specifies that a supervised entity does not waive any applicable privilege with respect to third parties by providing privileged information to the CFPB. The rule further clarifies 12 C.F.R (c), stating that the sharing of any privileged information by the CFPB with any federal or state agency will not waive any applicable privileges. This provision covers both information submitted to the CFPB by supervised entities and privileged information created by the CFPB in its supervisory rule. However, the doctrine of selective waiver is not uniformly accepted among federal courts and has been outright rejected as preserving a privilege. See In re Steinhardt Partners, L.P., 9 F.3d 230 (2d Cir. 1993); In re Qwest Communications Intern. Inc. Sec. Litig., No , 2006 WL (10th Cir. 2006); In re Columbia/HCA Healthcare Corp., 293 F.3d 289 (6th Cir. 2002); United States v. Massachusetts Institute of Technology, 129 F.3d 681 (1st Cir. 1997); Westinghouse Elec. Corp. v. Republic of the Philippines, 951 F.2d 1414 (3d Cir. 1991); In re Martin Marietta Corp., 856 F.2d 619 (4th Cir. 1988); Permian Corp. v. United States, 665 F.2d 1214 (D.C. Cir. 1981). See also, Police & Fire Ret. Sys. of the City of Detroit v. SafeNet, Inc., No. 06 Civ. 5797, 2010 WL (S.D.N.Y. Mar. 12, 2010)(preserving privilege despite disclosure of internal report and investigation). B. Larger Participant On July 16, 2012, the Bureau adopted a rule to begin to supervise larger consumer reporting agencies, which include credit reporting companies. It marks the first time these companies will be supervised at the federal level. The rule outlining the CFPB s supervision of this market will be effective September 30, The CFPB plans to finalize its larger participant rule on debt collection in the fall 2012 and plans to propose additional larger participant rules in the future. C. Constitutionality of the CFPB and its Actions On June 21, 2012, a suit was filed in the U.S. District Court in Washington, D.C. seeking to overturn the creation of the CFPB and prevent its director, Richard Cordray, from using any powers of the director s job, the result of a possible unconstitutional recess appointment. See State National Bank of Big Spring et al. v. Geithner et al., Civil Action No. 1:12-cv Although it is rare for courts to strike down an office or agency created by Congress, pundits believe the suit could work its way to the Supreme Court on the issue of Cordray s appointment. IV. Conclusion The passing of the Dodd-Frank Act and the creation of the CFPB marks a stark change from the prior federal regulatory and enforcement scheme concerning consumer financial products and services. Vested with broad regulatory, investigatory and enforcement authority, the Bureau will have a significant impact on entities and individuals associated with the financial services industry. As noted above, while the CFP Act generally exempts professionals from CFPB oversight, the exceptions to that exemption are substantial and broad thereby requiring vigilance by professionals providing services that may fall within one of the enumerated consumer laws of 12 U.S.C. 5531(12). 118 Professional Liability Seminar December 2012

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