Mortgage lender PHH landed a knock-down blow against the CFPB yesterday when three justices from the U.S. Court of Appeals for the D.C. circuit – in a 110-page decision – unanimously declared the bureau’s leadership structure unconstitutional and vacated a $103 million fine against the lender.

All eyes in the industry have been on the case since June 2015, when PHH challenged the CFPB’s $103 million increase to a $6.4 million fine for PHH illegally accepting kickbacks for referring customers to specific mortgage insurers.

PHH challenged the fine and the constitutionality of the structure of the CFPB, specifically the fact that director Richard Cordray is not subject to presidential supervision.

The decision, which discusses the separation of powers in the three branches of government, went all the way back to the framers of the Constitution and said, “To carry out the executive power and be accountable for the exercise of that power, the president must be able to control subordinate officers in executive agencies.”

Banking consultant Ben Giumarra of Spillane Consulting is still distilling yesterday’s decision. He acknowledged the impact is enormous and that the news is good for lenders, but like the rest of the industry, he’s still parsing just how good.

“Did the court find the CFPB unconstitutional? Yes. They basically said the CFPB director has too much power,” he wrote in an email. “But that didn’t make as much of a difference as you might think – it just means that now the president will be able to fire the director more easily (currently he’s very much independent from the president).”

PHH said in a statement, “We are extremely gratified that the D.C. Circuit Court of Appeals overturned the director’s decision related to our former mortgage reinsurance activities. We are hopeful that the court’s opinion will provide greater certainty to the entire mortgage industry regarding the industry’s reliance on longstanding regulation as to how to conduct business consistent with RESPA.”

David Beats Goliath: Mortgage Lender Takes Down CFPB

by Banker & Tradesman time to read: 1 min
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