K.J. Miller and Amy Sabbota Gottlieb both have extensive
experience in commercial and business litigation. Today, their practices center
on consumer finance litigation, including federal lending laws and regulations
like TILA, RESPA, FDCPA and FCRA, and state consumer protection laws. They
represent a number of lenders, ranging from national banks to local credit
unions, investors, and servicers in actions pending in MI, IL, TN, NV, OH, MN,
IN and KY. Both Amy and K.J. handle large caseloads, supervising a number of
attorneys in various DW offices, and consistently meet the needs of their
clients in an ever-changing and demanding financial industry.
K.J. and Amy recently attended the Mortgage Bankers
Association’s Legal Issues and Regulatory Compliance Conference. The housing
market has improved and purchases are up, while foreclosures are down. However,
mortgage lenders and servicers are under increased scrutiny and have more
regulations than ever by which they must comply. A central topic of discussion
was the Consumer Finance Protection Bureau’s (CFPB’s) interpretative authority
over consumer regulations and the impact on everyone from large financial
institutions to used car dealers. One of the many challenges associated with the
new regulations is trying to help clients predict how the CFPB will enforce its
rules. Unlike other regulatory agencies, the CFPB is not issuing Official
Agency Interpretations; instead, the CFPB is using enforcement actions and
consent orders to provide guidance to the industry. But consent orders only
legally bind the parties to the order, and are often factually specific (and
not all the facts are disclosed!), making it hard to generalize their impact on
other entities. Plus, consent orders have no legal precedential value on any
company that was not a party to the order.
But clients need to be aware of how the CFPB is treating
other entities, because making the same or similar mistakes as those entities
can have costly consequences. Counsel should try to determine which parts of a
consent order may have general applicability, and try to gather more detail on
the evidence the CFPB gathered on the alleged violations before the Consent
Order was created. With the assistance of their clients and other knowledgeable
and trusted experts, counsel can help clients minimize risks and better defend
against claims.
