On April 12, the U.S. Court of Appeals for the D.C. Circuit held oral arguments in the case PHH Corporation v. CFPB. The primary issue in the case is whether the CFPB is constitutionally and statutorily authorized to assess a $109 million penalty against the petitioner, a nonbank mortgage lender (Lender), for allegedly violating Section 8 of the Real Estate Settlement Procedures Act (RESPA) by referring customers to certain mortgage insurance companies that purchased mortgage reinsurance at fair market value from an affiliate of the Lender. According to CFPB Director Richard Cordray, this practice was a violation of Section 8’s prohibition on kickbacks for referrals, because the mortgage insurers allegedly only purchased mortgage reinsurance in order to receive customer referrals from the Lender.

In appealing the CFPB’s action, counsel for the Lender argued that the CFPB is attempting to effectively rewrite Section 8 to prohibit activities expressly permitted by the statute’s implementing regulation, Regulation X, as well as prior agency guidance and the plain language of the statute itself. According to the Lender, its mortgage reinsurance practices had long been understood to be legal, were widespread throughout the country, and aligned with existing HUD guidance. The Lender further argued that Section 8(c)(2) permits entities to refer business so long as the referrals are not compensated, and any payments are equal to the market value cost of services actually provided. In the Lender’s case, counsel argued that the mortgage reinsurance premiums could not have been compensation for referrals, because mortgage reinsurance premiums received by the Lender’s affiliate were equal to the fair market value of mortgage reinsurance services actually rendered. The Lender further argued that the CFPB improperly ignored RESPA’s statutorily-prescribed statute of limitations (SOL) of three years when, under Section 15, RESPA clearly applies the SOL to “any action” – which, in the Lender’s view, would include an administrative action. Finally, the Lender argued that the CFPB’s structure and funding under the Dodd-Frank Act was unconstitutional in that it violated the requirement for separation of powers by, among other things, (i) restricting the President’s removal power to “for cause” removal; (ii) concentrating power in one individual; and (iii) funding the CFPB outside of the Congressional appropriations process.

Counsel for the CFPB responded that, during the period in question, mortgage insurance companies only purchased reinsurance from affiliates of lenders who referred them business. According to the CFPB, this type of quid pro quo arrangement is a violation of Section 8 even if the reinsurance premiums were equal to the fair market value of a service rendered. Counsel for the CFPB said that, notwithstanding the fact that the Lender’s conduct was common throughout the financial services industry, it had never expressly been blessed by prior agency guidance, and resulted in the type of market distortion that RESPA was designed to prevent. The CFPB also defended its position that its administrative actions are not subject to an SOL by noting that the Consumer Financial Protection Act, which authorizes the CFPB to take enforcement actions against regulated entities, does not include an SOL for such actions. In response to the challenge to the constitutionality of its structure, the CFPB pointed to the diversity of agency structures throughout the executive branch, including single-headed agencies and agencies that do not rely on Congress for appropriations funding.

The panel consisted of Judges Kavanaugh, Randolph, and Henderson; Judge Henderson was not present.