Consumer Financial Services Law Blog
Dykema Gossett PLLC
Dykema Gossett PLLC

Consumer Financial Services Law Blog

Consumer Financial Services Law Blog

News and analysis regarding Consumer Financial Services litigation and regulation, and activities of the Consumer Financial Protection Bureau


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Showing 7 posts in Preemption.

4th Circuit Holds No Preemption of Misleading Disclosures Claims, But Confirms Dodd-Frank Not Retroactive

Dodd-Frank may have changed the landscape of federal preemption of state laws regulating national banks and federal thrifts, but it does not apply retroactively. The old rules still prevail for loans originated prior to July 21, 2010, or so everyone assumes, but many courts have now confirmed it. That makes McCauley v. Home Loan Investment Bank, F.S.B. & Deutsche Bank National Trust Company, an opinion recently issued by the Fourth Circuit, an interesting development. The Fourth Circuit joined many others in holding that federal preemption bars claims against federal thrifts to the extent the claims would effectively regulate lending practices, but it held that traditional common law fraud claims are not preempted. Other courts have said as much, but the McCauley opinion leaves relatively little room for federal preemption when fraud is alleged compared to other circuits. Read More ›

Ninth Circuit on High-Low Postings: National Bank Act Preempts California’s Unfair Competition Law as to Transaction Posting Practices but not as to Misrepresentation of Transaction Posting Methods

In Gutierrez v. Wells Fargo, --- F.3d ----, 2012 WL 6684748 (9th Cir. Dec 26, 2012), the Ninth Circuit has recently held that the federal National Bank Act  “preempts state regulation of transaction posting practices and any obligation for national banks to make specific, affirmative disclosures to their customers.”  A national bank’s decision to post payments to checking accounts in a particular order “is a federally authorized pricing decision” which “is within the exclusive purview of the [Office of the Comptroller of the Currency (OCC)]”.  Accordingly, federal law preempts state law that “prevents or significantly interferes with a national bank’s federally authorized power to choose a posting order,” including California’s Unfair Competition Law (UCL) with respect to “unfair” business practices. Read More ›

Court Grants Preliminary Injunction That Prevents CFPB From Enforcing TILA Rules on Credit Card Fees

A federal district court in First Premier Bank v. U.S. Consumer Financial Protection Bureau (D.S.D.) granted a preliminary injunction to First Premier Bank (“Premier”) to block the CFPB’s enforcement of an amendment to Regulation Z, which would narrow the scope of fees credit card companies can impose on the type of cards typically offered to subprime borrowers. The injunction, based in part on the finding that the Federal Reserve Board (“FRB”) had exceeded its authority, prevents the CFPB from enforcing the amendment until a final decision is made in the case. Read More ›

Senate Committee Approves Cordray to Head Consumer Financial Protection Bureau

The Senate Banking Committee voted 12-10 to approve Richard Cordray’s nomination to be the first director of the CFPB. Cordray is a former Ohio attorney general who currently leads the Bureau’s enforcement division. The committee voted along party lines, with no Republican committee member voting to approve the nomination. Cordray’s nomination now proceeds to the full Senate for a vote. Read More ›

Date Calls for Greater Transparency in Checking Account Fees

On the heels of Bank of America’s announcement that it will impose a monthly fee on debit card users, the Consumer Financial Protection Bureau (“CFPB”) has signaled that it will work toward increasing transparency regarding checking account fees and might require more simplified checking account disclosures. Raj Date, special advisor to the Secretary of the Treasury on the CFPB, recently issued a statement noting that “checking accounts often come with a wide variety of unexpected costs that can quickly add up for consumers.” Read More ›

CFPB Drafting Qualified Mortgage Regulations in Hopes of Expanding Mortgage Loan Originations

The CFPB is currently drafting regulations that define the requirements of a Qualified Mortgage (“QM”) and the benefits to lenders whose loans fall within the QM parameters. Recognizing that “[t]here can be little or no access to credit unless suppliers of capital are willing to finance home mortgages,” Patricia McCoy, the CFPB’s assistant director for mortgage markets, is appreciative of the hundreds of extremely thoughtful comment letters received that will inform this “critical and difficult rulemaking.” Read More ›

CFPB Releases Mortgage Servicing Examination Procedures and Manual

The Consumer Financial Protection Bureau (“CFPB” or the “Bureau”) announced its initial approach to supervising mortgage servicers. Specifically, the Bureau released its Mortgage Servicing Examination Procedures (the “Procedures”), along with its CFPB Supervision and Examination Manual (the “Manual”). The devotion of CFPB resources to servicer regulation was foreshadowed by a speech from Raj Date, special advisor to the Secretary of the Treasury, on September 20, 2011. The CFPB, of course, was the brainchild of Professor Elizabeth Warren, who argued in a November 2008 law review article for the creation of a “single, highly motivated federal regulator” to police mortgage servicing activity. The Manual and the Procedures constitute the CFPB’s first broad attempt to implement that vision. Read More ›