In a post on its blog, the CFPB writes that it’s looking for suggestions for cases in which the CFPB should consider filing amicus briefs. The post describes the six amicus briefs filed so far by the CFPB, four of which were in Truth in Lending cases and two of which were in Fair Debt Collection Practices Act cases.
In the four TILA cases, the CFPB supported the consumers’ position that notice alone within the three-year period is sufficient to validly exercise a right to rescind. (The CFPB’s position has been rejected by the Third, Ninth and Tenth Circuits. The Fourth Circuit, in Gilbert v. Residential Funding LLC., is the only federal appellate court to hold to the contrary. After the Gilbert decision was issued, Ballard Spahr was asked to act as co-counsel to the defendants in filing a petition in the Fourth Circuit asking for a rehearing by the panel or before the full court.)
With regard to the FDCPA cases, in one such case the CFPB supported the consumers’ interpretation of the FDCPA prohibition of third party contacts and the FDCPA provision concerning recovery of costs by a defendant who wins an FDCPA suit. In the other FDCPA case, the CFPB supported the consumers’ position that certain foreclosure-related activity is subject to the FDCPA.
As we have previously observed, the CFPB’s proactive approach stands in stark contrast to the approach taken by the Federal Reserve Board when it was charged with implementing federal consumer financial protection statutes such as TILA. When the Fed felt the courts were incorrectly interpreting the statute in question, the Fed would generally address the issue by proposing revisions to the implementing regulation or official staff commentary rather than by submitting an amicus brief.
So far, all of the amicus briefs filed by the CFPB have supported the position taken by the consumers in the cases. Having stated in its blog posting that the CFPB’s amicus briefs “help ensure that consumer financial protection statutes and regulations are correctly and consistently interpreted by the courts,” we hope the CFPB will also be willing to use its amicus filings to advocate for interpretations advanced by industry.