Community Financial Services Association of America, Limited, et al. v. Consumer Financial Protection Bureau, et al.

This case involves a challenge to the validity of a single regulation promulgated by the Consumer Financial Protection Bureau (CFPB or Bureau). As relevant here, the Rule prohibits a covered lender from continuing to make preauthorized attempts to withdraw loan repayments from a consumer’s bank account after two consecutive attempts are denied for insufficient funds. 82 Fed. Reg. 54,472, 54,877-79 (Nov. 17, 2017). Cross-Petitioners (the Lenders) claimed that the Rule is unlawful on several grounds, and the court of appeals vacated the Rule on one ground after rejecting the others. In No. 22-448, the Bureau has filed a certiorari petition seeking review of the holding below that the Rule should be vacated because the statute authorizing the agency’s funding violates the Appropriations Clause. This Court should deny that petition for the reasons explained in the Lenders’ opposition brief. If the Court grants the Bureau’s petition, however, it should either grant this cross-petition or add to the Board’s petition two antecedent questions that also are presented by the judgment under review:

1. Whether the Rule should be vacated because it was promulgated by Director Cordray while shielded from removal by President Trump under a statutory provision this Court later held is unconstitutional.

2. Whether the Rule should be vacated because the prohibited conduct falls outside the statutory definition of unfair or abusive conduct.