Written by Steve Van Beek
A ruling by the U.S. Court of Appeals for the District of Columbia (WashingtonPost.com) on the recess appointments of 3 National Labor Relations Board (NLRB) appointments caused quite a stir on Friday afternoon. Especially, considering CFPB Director Richard Cordray was appointed at the same time.
You are probably going to read quite a bit in the upcoming weeks (and months) about what this means for Cordray's appointment and - more importantly - the CFPB's recently released final mortgage regulations (and, the remittance transfer regulation). For credit unions, I want to point you back to one of my blog posts from June 2011 on the CFPB's Authority Without a Director. In that post, I looked at what the CFPB could do if it did not have a "Senate-confirmed director:"
Even without a Director, the CFPB can (among other powers):
- Write rules, orders and guidance regarding any of the consumer laws that transfer to the CFPB. This includes proposing new regulations as well as finalizing regulations (both its own and proposals it inherits from other agencies);
- Conduct examinations of and issue and enforce orders against banks, savings associations or credit unions with assets of greater than $10 billion; and
- Take over consumer protection issues related to RESPA and certain consumer rules previously under the authority of the Federal Trade Commission.
That post relied on a January 11, 2011 joint letter from the Inspector Generals of the Federal Reserve and Treasury Department - especially Question & Answer #5.
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So, What Should Credit Unions Do? Continue working on understanding and complying with the CFPB's regulations. The CFPB had authority to issue regulations under Regulation Z (TILA), Regulation X (RESPA) and Regulation E (EFTA - remittance transfers) even without the Senate-confirmed Director. Thus, if Cordray's recess appointment were overturned - the new requirements would still be mandatory. Now, there would likely be numerous nuances and intricacies that would pop up - but the best course of attack is to continue to work toward understanding and complying with the CFPB's regulations.
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Ironically, nonbank mortgage originators and servicers would be in a slightly different boat (as would nondepository providers of remittance transfers) as the CFPB wouldn't have authority over those entities without a proper Director. Of course, that isn't to say they would get off scot-free (in fact, it could turn out worse) - but it is a different analysis than for banks and credit unions who were already regulated at the federal level.
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Now is also a good time to remind readers of this blog's legal disclaimer:
LEGAL DISCLAIMER
This website is intended to provide general compliance information in regard to the subject(s) covered. It is provided with the intent and understanding that the publisher is not engaged in the act of rendering legal, accounting or any other professional advice. The information provided in this website is not intended nor should be used as a substitute for legal advice or other expert opinions and services in specific situations. NAFCU is not responsible for the content of comments and reserves the right to delete or block comments that it finds inappropriate.
Ah, that feels better. Have a great week everyone!
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