The CFPB has been quietly taking an active role in federal appellate cases initiated by private litigants. Since late 2011, the CFPB has filed six amicus curiae briefs in federal appellate cases. The CFPB’s position in each amicus curiae brief is the same: steadfast consumer advocate. In several of its amicus curiae briefs, the CFPB has even sought to reverse a general consensus among the federal appellate courts.
Four of the federal appellate cases address the question of whether a consumer’s Truth in Lending Act (TILA) claim is time-barred in situations where the consumer previously gave a timely notice of rescission to the lender, but filed the TILA action more than three years after loan closing. Prior to the CFPB’s amicus curiae briefs, the Ninth and Third Circuit held that the TILA claims were time-barred. The CFPB’s position, however, is that the claims should not be time-barred.
The two other federal appellate cases address alleged violations of the Fair Debt Collection Practices Act (FDCPA). The CFBP argues that a loan servicer pursuing foreclosure activity is not exempt from the FDCPA.
To date, the CFPB has had marginal success in influencing the federal appellate courts. The federal appellate courts have issued opinions in three out of the six cases (one TILA case and two FDCPA cases), one of which was in favor of the CFBP. The Tenth Circuit rejected the CFBP’s position in a TILA and FDCPA case. The Eleventh Circuit agreed with the CFBP in a FDCPA case, but relied on other precedential cases as opposed to the CFBP’s amicus curiae brief in reaching its holding.
The CFPB’s amicus curiae briefing also appears to be affecting federal appellate opinions in cases that have not been briefed by the CFPB. For example, the Fourth Circuit held (in a case not briefed by the CFPB) that the TILA claims would not be time-barred. Thus, it appears that the federal appellate courts are aware of the CFPB’s activity and are taking the CFPB’s position into consideration even in cases where the CFPB has not sought to file an amicus curiae brief.
The Bureau now appears to be going public with its amicus brief activity. It has publicized its amicus brief program and is actively seeking case referrals, so we can expect to see more Bureau activity in connection with private litigation.