The Department of Justice (DOJ) has filed an amicus brief defending the holding that the unaccountable single-director structure of the Consumer Financial Protection Bureau (CFPB) is unconstitutional in the case of PHH Corp. v. CFPB. In reversal of support, the DOJ adopts the U.S. Court of Appeals for the D.C. Circuit’s three-judge panel finding that the Dodd-Frank Act’s for-cause removal restriction for the CFPB director was unconstitutional. The DOJ compared multi-member regulatory commissions to the single-director structure of the CFPB, arguing that current removal restrictions are “an unwarranted limitation on the President’s executive power.”
The DOJ filing was prompted by the court’s granting of the CFPB’s request for rehearing en banc, vacating the three-judge panel decision. The CFPB’s brief is due by the end of the month and oral argument of the case is scheduled for May 24, 2017. NAR filed an amicus brief in support of PHH (along with several other trade groups) focusing on the Real Estate Settlement Procedures Act (RESPA) Section 8(c)(2) safe harbor issue related to referrals where there is a federally related mortgage. The DOJ did not address the RESPA issues.
For a brief overview of the case, see NAR's Issue Summary.
For best practices on MSAs, see NAR’s RESPA Do’s & Don’ts for MSAs.
For more background on the case, view NAR's Window to the Law analysis.