Collector - August 2017 - 43

IAP

that is sufficient. The CFPB acknowledged,
however, that after the director's fiveyear term expires, he is removable by the
president at will.
The CFPB further stated that a president
will have an 80 percent chance of replacing
the CFPB director under the current
structure and that a president exercises
no less control over a single-director
agency than he does over a multi-member
commission. In terms of the statutory
issues, the CFPB briefly argued that
the CFPB is covered by the statute of
limitations in the judicial code and that a
party could have known that the conduct at
issue in the PHH Corp. case was unlawful
by looking at the statute itself.
During the oral arguments, Judge
Brett Kavanaugh, author of the majority
opinion in the October 2016 panel ruling,
took an active role in framing the issues
and posing several questions. Kavanaugh
pointed out that although agencies
historically turn over immediately or
pretty quickly to the party of the president,
that transition is not true with the CFPB
and this seems to result in a significant
diminishment of presidential power.
He noted that under the current
structure, Trump could appoint a new
CFPB director in July 2018. However, if
the 2020 presidential election produces
a new president from a different party,
that new president could be stuck with a
CFPB director who could potentially be
at odds with his or her platform for three
years. Kavanaugh described this result as
"crazy" in terms of history, constitutional
structure, presidential power and
common sense.
Finally, although the parties were asked
to address in their briefs the potential effect
of a decision in Lucia v. SEC, which raises
the issue of the constitutionality of using
administrative law judges that are not
appointed by the president or the federal
courts, this issue did not come up in oral
argument. Notably, however, Lucia v. SEC
was argued in front of the D.C. Circuit
immediately before the PHH Corp. case.

COLLECTOR 08.17

ACA filed an amicus brief on March
10, 2017, in the PHH Corp. case to share
with the appellate court its unique and
direct perspective on why it believes
the bureau's powers must be reined in
within constitutional bounds to ensure
accountability and transparency.
In its brief, ACA argued that "[t]he
Bureau's structure and function -wielding
power over a broad swath of Americans'
lives, concentrating power in the hands
of a single Director, insulated from
democratic accountability-is ripe for
the arbitrary and unrestrained exercise of
power in disregard for due process, and
for the constitutional rights of the objects
upon whom that power is exercised."

Although a decision by the D.C. Circuit
could come at any time, it is not expected
until the first part of 2018. ACA will
continue to follow the PHH Corp. case
and will keep its members posted on any
additional new developments.
If you want to read more about the
most recent significant judicial decisions
involving the credit and collection industry,
ACA members can always find concise case
summaries at www.acainternational.org/
industry-advancement-program.
Maria Wolvin is ACA International's vice
president and senior counsel of regulatory
affairs. Karen Scheibe Eliason is ACA
International's corporate counsel.

43


http://www.acainternational.org/industry-advancement-program http://www.acainternational.org/industry-advancement-program http://www.webrecon.com

Table of Contents for the Digital Edition of Collector - August 2017

President's Page
Industry News
Best Practices
FYI
Collection Tips
Window of Opportunity
A Rising Tide Lifts All Boats
Setting Things in Motion
Calendar
Honor Roll
ACA Members Contribute to Successful Collectors Challenge Month
School Tides
Finding Balance
D.C. Circuit Court Holds Oral Argument in Appeal Over Constitutionality of CFPB
Compliance
ACA SearchPoint
Last Word
Collector - August 2017 - Cover1
Collector - August 2017 - Cover2
Collector - August 2017 - 1
Collector - August 2017 - 2
Collector - August 2017 - President's Page
Collector - August 2017 - Industry News
Collector - August 2017 - 5
Collector - August 2017 - Best Practices
Collector - August 2017 - 7
Collector - August 2017 - FYI
Collector - August 2017 - 9
Collector - August 2017 - Collection Tips
Collector - August 2017 - 11
Collector - August 2017 - Window of Opportunity
Collector - August 2017 - 13
Collector - August 2017 - 14
Collector - August 2017 - 15
Collector - August 2017 - 16
Collector - August 2017 - 17
Collector - August 2017 - A Rising Tide Lifts All Boats
Collector - August 2017 - 19
Collector - August 2017 - 20
Collector - August 2017 - 21
Collector - August 2017 - 22
Collector - August 2017 - 23
Collector - August 2017 - 24
Collector - August 2017 - 25
Collector - August 2017 - Setting Things in Motion
Collector - August 2017 - 27
Collector - August 2017 - Calendar
Collector - August 2017 - Honor Roll
Collector - August 2017 - 30
Collector - August 2017 - 31
Collector - August 2017 - ACA Members Contribute to Successful Collectors Challenge Month
Collector - August 2017 - 33
Collector - August 2017 - 34
Collector - August 2017 - 35
Collector - August 2017 - School Tides
Collector - August 2017 - 37
Collector - August 2017 - Finding Balance
Collector - August 2017 - 39
Collector - August 2017 - 40
Collector - August 2017 - 41
Collector - August 2017 - D.C. Circuit Court Holds Oral Argument in Appeal Over Constitutionality of CFPB
Collector - August 2017 - 43
Collector - August 2017 - Compliance
Collector - August 2017 - 45
Collector - August 2017 - ACA SearchPoint
Collector - August 2017 - 47
Collector - August 2017 - Last Word
Collector - August 2017 - Cover3
Collector - August 2017 - Cover4
http://online.collector.com/collectormagazine/201910/
http://online.collector.com/collectormagazine/201909/
http://online.collector.com/collectormagazine/201908/
http://online.collector.com/collectormagazine/201907/
http://online.collector.com/collectormagazine/201906/
http://online.collector.com/collectormagazine/201905/
http://online.collector.com/collectormagazine/201904/
http://online.collector.com/collectormagazine/201903/
http://online.collector.com/collectormagazine/201902/
http://online.collector.com/collectormagazine/201901/
http://online.collector.com/collectormagazine/201812/
http://online.collector.com/collectormagazine/201811/
http://online.collector.com/collectormagazine/201810/
http://online.collector.com/collectormagazine/201809/
http://online.collector.com/collectormagazine/201808/
http://online.collector.com/collectormagazine/201807/
http://online.collector.com/collectormagazine/201806/
http://online.collector.com/collectormagazine/201805/
http://online.collector.com/collectormagazine/201804/
http://online.collector.com/collectormagazine/201803/
http://online.collector.com/collectormagazine/201802/
http://online.collector.com/collectormagazine/201801/
http://online.collector.com/collectormagazine/201712/
http://online.collector.com/collectormagazine/201711/
http://online.collector.com/collectormagazine/201710/
http://online.collector.com/collectormagazine/201709/
http://online.collector.com/collectormagazine/201708/
http://online.collector.com/collectormagazine/201707/
http://online.collector.com/collectormagazine/201706/
http://online.collector.com/collectormagazine/201705/
http://online.collector.com/collectormagazine/201704/
http://online.collector.com/collectormagazine/201703/
http://online.collector.com/collectormagazine/201702/
http://online.collector.com/collectormagazine/201701/
http://online.collector.com/collectormagazine/201612/
http://online.collector.com/collectormagazine/201611/
http://online.collector.com/collectormagazine/201610/
http://online.collector.com/collectormagazine/201609/
http://online.collector.com/collectormagazine/201608/
http://online.collector.com/collectormagazine/201607/
http://online.collector.com/collectormagazine/201606/
http://online.collector.com/collectormagazine/201605/
http://online.collector.com/collectormagazine/201604/
http://online.collector.com/collectormagazine/201603/
http://online.collector.com/collectormagazine/201602/
http://online.collector.com/collectormagazine/201601/
http://online.collector.com/collectormagazine/201512/
http://online.collector.com/collectormagazine/201511/
http://online.collector.com/collectormagazine/201510/
http://online.collector.com/collectormagazine/201509/
http://online.collector.com/collectormagazine/201508/
http://online.collector.com/collectormagazine/201507/
http://www.nxtbookMEDIA.com