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Federal Deception Law: 3.1.1a.5 The Fifth Circuit Is in the Minority

Community Financial Services Ass’n of America v. Consumer Financial Protection Bureau does not bind courts in other circuits. The Fifth Circuit is the only court that has found the CFPB’s funding mechanism to be unconstitutional. The Second Circuit and the en banc D.C.

Federal Deception Law: 3.1.1a.8 Warning Courts of the Economy-Wide Impact If Eleven Years of CFPB Rulemaking Actions Are Subject to Challenge

If a court finds the CFPB’s funding structure to be unconstitutional, practitioners should push for a narrow remedy and explain that CFPB rules do not just protect consumers. CFPB rules offer clear standards for financial service providers, explain how these providers must comply with the law, shed light on ambiguous statutory provisions, provide model disclosures to use, exempt small entities from statutory requirements, offer safe harbors, or otherwise clarify that certain practices are allowed.

Federal Deception Law: 3.1.1a.9 Most CFPB Regulations Still Apply Even in the Fifth Circuit

Even if a court in the Fifth Circuit or elsewhere were to strike down CFPB rules, most consumer protection regulations should still survive such a ruling. With a few exceptions, the CFPB’s current rules were transferred wholesale from other agencies (most commonly the Federal Reserve) to the CFPB when the CFPB opened its doors in 2011. While changes to those rules since 2011 were promulgated using CFPB funding, the CFPB’s funding structure had nothing to do with rules that were adopted before that time.

Federal Deception Law: 3.1.1a.10 Claims Should Focus on Statutory Violations, Not Violations of The Statute’s Implementing Regulations

While courts consistently uphold the CFPB’s funding mechanism, there is a risk that a court, faced with a challenge to the CFPB’s funding, will stay litigation based on a CFPB rule until the Supreme Court decides the issue, rather than a trial court making its own judgment.35 This delay can be avoided by basing the litigation not on a CFPB rule, but on the underlying statute that the rule is implementing. Any ruling on the CFPB’s funding has no impact on the underlying statute.

Federal Deception Law: 3.1.1a.11 UDAP and Other State Statutory and Common Law Claims as Alternatives

The CFPB’s analysis in the supplemental information accompanying a rule provision may indicate why a practice is unfair, deceptive, or abusive. This same analysis may prove convincing to a court that the practice violates a state unfair and deceptive acts and practices (UDAP) statute. Every state has enacted a UDAP statute that prohibits deceptive and often unfair practices, and some have added a prohibition on abusive or unconscionable conduct. UDAP statutes were designed to be liberally and expansively interpreted.

Home Foreclosures: Missouri

Mo. Rev. Stat. §§ 443.290 to 443.454

Most Common Method of Foreclosure: Power of sale.

Preforeclosure Notice:

Number of Notices: One.

Amount of Notice Required: Twenty days. §§ 443.310, 443.325. Last publication not more than one week before sale. § 443.320.

HUD Housing Programs: Tenants’ Rights (The Green Book): 14.1 Introduction

This chapter provides a starting point for advocates researching certain basic legal issues that appear repeatedly in federal housing litigation. Please refer to the Table of Contents for a list of the subjects covered in this chapter. While housing cases are mentioned whenever available, the discussion on some issues draws more generally on other federal cases and treatises. Since none of these issues have been researched exhaustively, do not rely on the illustrative information provided here as anything more than a place to begin your research.

HUD Housing Programs: Tenants’ Rights (The Green Book): 14.2.2 Accessing Records without a FOIA Request

Since FOIA requires agencies to publish actively and keep current certain information,6 advocates may be able to find what they need without submitting a formal FOIA request. For example, HUD’s E-FOIA reading room can provide important information.7 The E-FOIA reading room contains documents such as frequently requested materials, final opinions and orders, housing policies, administrative staff manuals, HUD’s online library, and HUD’s annual FOIA report.

HUD Housing Programs: Tenants’ Rights (The Green Book): 14.3.2.4 Filing a HUD Administrative Complaint

In complex cases, a formal administrative complaint is more appropriate than requesting an opinion letter. Tenants and advocates with fair housing complaints may submit an online form to HUD’s Office of Fair Housing and Equal Opportunity (FHEO).95 Advocates and voucher tenants or residents in HUD multifamily housing may also report fair housing concerns to HUD by email, mail, or speaking with somone at FHEO.96 Generally, there is no required format for administrative complaints.

HUD Housing Programs: Tenants’ Rights (The Green Book): 14.3.2.5 Sending HUD the Court Complaint before Filing

Advocates who want to file a lawsuit against a PHA or owner could also send HUD a copy of the complaint to be filed in court. The approach may help get HUD to convince the PHA or owner to settle out of court. This strategy was successful in cases challenging inadequate utility allowances98 and HUD’s preliminary position that a PHA could no longer include the cost of air conditioning in the utility allowance.99

HUD Housing Programs: Tenants’ Rights (The Green Book): 14.3.3 Exhaustion of Administrative Remedies

Advocates should consider pursuing administrative relief with HUD or the PHA before filing litigation. Courts generally look more favorably on the claims of a plaintiff who has been unable to secure adequate administrative relief despite good faith efforts.100 In some situations, an agency’s repeated failures to respond to reasonable requests by tenants can convince the court that judicial involvement is necessary.

HUD Housing Programs: Tenants’ Rights (The Green Book): 14.3.5 Involving the Press

Finally, effective advocacy may include using the press to assist in providing well-documented criticism of improper operation of the housing programs.117 For example, tenants organizing in Hawaii used the media in their struggle to gain recognition by the PHA as a resident advisory board.118 Tenants and advocates should carefully consider the potential benefits and costs to engaging the press.

HUD Housing Programs: Tenants’ Rights (The Green Book): 14.4.1 Overview

The law of standing derives from the “case and controversy” requirement of Article III of the United States Constitution.119 As Justice Douglas wisely stated, “[g]eneralizations about standing to sue are largely worthless as such.”120 Taking this cue, this section addresses only the basic principles of standing, and raises some suggestions for overcoming a standing defense, based upon those housing cases involving standing.

HUD Housing Programs: Tenants’ Rights (The Green Book): 14.4.3 “Prudential” Standing Limitations

In addition to the three-pronged constitutional minimum, the Supreme Court has imposed three “prudential” limitations on standing, to ensure the plaintiff is sufficiently connected with the controversy and thus appropriately suited to bring the claim.129 First, the plaintiff’s claim must be within the zone of interest protected by the statute or constitutional guarantee in question.130 Second, the plaintiff generally must assert her own rights and not those of third parties.