DC Circuit Hears Oral Arguments in PHH Rehearing

On Wednesday, May 24, 2017, the U.S. Court of Appeals for the D.C. Circuit held en banc oral argument in the rehearing of PHH Corp., et al. v. Consumer Financial Protection Bureau (PHH).  On October 11, 2016, Court held that the structure of the CFPB, headed by a single director removable only for cause, is unconstitutional.  The decision also overturned the CFPB interpretation of the anti-kickback provision of the Real Estate Settlement Procedures Act (RESPA), held that the CFPB’s attempt to retroactively apply its interpretation of RESPA to PHH in an enforcement proceeding violated due process, and determined that RESPA’s three-year statute of limitations applied to administrative proceedings.

 

Argument focused almost exclusively on the constitutionality of the CFPB.  The RESPA and statute of limitation issues that occupied much of the panel opinion were each the subject minimal argument.  The Judges of the panel seemed to be split, at best, on the issue and a final decision is not expected until late 2017 at the earliest.