Wednesday, May 27, 2015

Notes from MBA Legal Issues & Regulatory Compliance Conference

By K.J. Miller and Amy Sabbota Gottlieb

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.