Mortgage assistance services rule still can’t regulate attorneys practicing law - FINANCIAL-24 - FINANCIAL-24, we has prepared this article well for you to read and retrieve information in it. Okay, happy reading.

Mortgage assistance services rule still can’t regulate attorneys practicing law - FINANCIAL-24

By Andrew A. Turner, J.D.

A district judge has refused to reconsider an earlier ruling that the Consumer Financial Protection Bureau’s Reg. O—MortgageAssistance Relief Services (12 CFR Part 1015) cannot be applied to attorneys who are performing services that are part of the licensed practice of law. The court expressed concern that a contrary ruling relied upon by the CFPB could open a “can of worms” if federal courts were called upon to decide what constitutes the unlawful practice of law in each state (CFPB v. The Mortgage Law Group, LLC).

Even if the challenge had not been waived due to a failure to seek reconsideration until the eve of trial, a new judge in the case could find no basis for rescinding the earlier ruling that the regulation’s exemptions for attorneys are too narrow because they would permit the CFPB to regulate the practice of law, which the Dodd-Frank Actplaced beyond the bureau’s authority. Regulatory provisions that conditioned exemptions on the attorney’s compliance with state lawswere too restrictive, in the court’s view.

Subsequently, the judge said the rule provisions that are permissible retain their effectiveness, without deciding whether the attorneys and their affiliated companies actually had violated either the rule or the Dodd-Frank Act ban on unfair, deceptive, and abusive acts or practices. Now, the court was unwilling to eliminate the primary defense in a case set to go to trial in a week.

CFPB rulemaking authority. The CFPB sought reconsideration, citing a later decision by a different court agreeing with its reading of the statute, that the bureau inherited the Federal Trade Commission’s authority to regulate attorneys engaged in the practice of law based on a 2009 Omnibus Act which authorized the FTC to regulate mortgage lending practices. Refusing to rely on the contrary opinion, the court pointed to direct conflict with the 2010 Consumer Financial Protection Act’s general prohibition against regulating attorneys engaged in the practice of law and the failure of the Omnibus Act to address the regulation of attorneys. As a result, the court could not find “clear error” in the earlier rejection of the CFPB’s rulemaking authority in this area.

For more information about CFPB oversight of conduct involving mortgage issues, subscribe to the Banking and Finance Law Daily.

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