On July 9, the U.S. Supreme Court granted the two petitions for certiorari in Collins v. Mnuchin, the en banc Fifth Circuit decision which held that the FHFA’s structure is unconstitutional because the Housing and Economic Recovery Act of 2008 (HERA) only allows the President to remove the FHFA’s Director “for cause.” In addition
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CFPB and FHFA announce launch of Borrower Protection Program
By Barbara S. Mishkin on
The CFPB and the Federal Housing Finance Agency (FHFA) have announced a new joint initiative, the “Borrower Protection Program.” The initiative is intended to enable the agencies to share mortgage servicing information during the COVID-19 pandemic.
According to the CFPB’s press release, the CFPB will make complaint information and analytical tools available to the…
No action from SCOTUS on Collins cert petitions
By Alan S. Kaplinsky on
Posted in Regulatory and Enforcement
The orders released today by the U.S. Supreme Court from its January 10 conference did not include any orders regarding the petition for a writ of certiorari filed by the plaintiffs in Collins v. Mnuchin or the petition filed by the FHFA and Treasury Department. The case dockets indicated that briefing on the petitions was…
SCOTUS to consider Collins cert petitions on Jan. 10
By Alan S. Kaplinsky on
Posted in Regulatory and Enforcement
At its conference this Friday, January 10, the U.S. Supreme Court is expected to consider the petition for a writ of certiorari filed by the plaintiffs in Collins v. Mnuchin and the petition filed by the FHFA and Treasury Department. The case dockets indicate that briefing on the petitions was submitted for Friday’s conference.
In…
Fifth Circuit panel in All American Check Cashing asks parties to brief impact of en banc Fifth Circuit decision holding FHFA structure unconstitutional
By Alan S. Kaplinsky on
Posted in Regulatory and Enforcement
The issue of the CFPB’s constitutionality is currently before the Fifth Circuit in the interlocutory appeal of All American Check Cashing from the district court’s ruling upholding the CFPB’s constitutionality. Oral argument was held in March 2019 and no decision has yet been issued.
At oral argument, the panel asked the parties whether it should…
En banc Fifth Circuit decision holding FHFA structure unconstitutional could presage similar fate for CFPB and circuit split
By Alan S. Kaplinsky on
Posted in Regulatory and Enforcement
The en banc Fifth Circuit has ruled in Collins v. Mnuchin that the FHFA is unconstitutionally structured because it is excessively insulated from Executive Branch oversight and that the appropriate remedy for the constitutional violation is to sever the provision of the Housing and Economic Recovery Act of 2008 (HERA) that only allows the President…
FHFA reverses position (again) on its constitutionality
By Alan S. Kaplinsky on
Posted in Federal Agencies, Regulatory and Enforcement
In an interesting twist, the FHFA has informed the Fifth Circuit in Collins v. Mnuchin, that despite having previously advised the en banc court that it would not defend the FHFA’s constitutionality, it has reconsidered its position under the leadership of its new Director and will take the position going forward that the agency’s…
CFPB defends its constitutionality to Ninth Circuit panel: will Kraninger have a change of heart?
By Alan S. Kaplinsky on
Posted in Regulatory and Enforcement
The pendency of three cases in circuit courts challenging the CFPB’s constitutionality has given rise to speculation as to whether the CFPB will continue to defend its constitutionality under Director Kraninger’s leadership. The CFPB continued to defend its constitutionality in these cases while under former Acting Director Mulvaney’s leadership. It did so, however, as a…
Petitions for rehearing en banc filed in Fifth Circuit case finding FHFA is unconstitutionally structured
By Alan S. Kaplinsky on
Posted in Federal Agencies, Regulatory and Enforcement
In July 2018, in Collins v. Mnuchin, a Fifth Circuit panel found that the Federal Housing Finance Agency (FHFA) is unconstitutionally structured because it is excessively insulated from Executive Branch oversight. It determined that the appropriate remedy for the constitutional violation was to sever the provision of the Housing and Economic Recovery Act of…
Does the Fifth Circuit’s decision finding the FHFA is unconstitutionally structured presage a similar fate for the CFPB?
By Alan S. Kaplinsky on
Posted in CFPB General, Regulatory and Enforcement
The issue of the CFPB’s constitutionality is currently before the Fifth Circuit in the interlocutory appeal of All American Check Cashing from the district court’s ruling upholding the CFPB’s constitutionality. As a result, the Fifth Circuit’s decision issued earlier this week which found that the Federal Housing Finance Agency (FHFA) is unconstitutionally structured because it…