Scouring Muddied Waters: Towards Clarifying the CFPB\u27S Abusive Practices

While this Article was pending publication, several events unfolded altering the landscape of the abusive power. As a preliminary note, during the pendency of publication several dispositions changed-either by court order or agreement between the parties. Next, in June 2019, Director Kraninger kicked off the Bureau\u27s symposium series by holding an open forum over the abusive power. The symposium consisted of two panels: one focusing on policy, composed of law professors, and one focusing on practical application, comprised of practicing attorneys in private and government practice. Both panels were intellectually stimulating and presented diverging views. In the policy panel, major disagreement arose in two areas: (1) whether the abusive prong required consumer harm and (2) whether abusive contains a scienter requirement. Further, the practical panel debated on the issue of whether the abusive power needs clarification right now. The panel did not come to an agreement, however, it made one thing clear: there is widespread disagreement on whether rulemaking is necessary to clarify the abusive power. This Article will address that disagreement. Finally, on September 7, 2019, Kraninger brought her first abusive (with deceptive) action against Certified Forensic Loan Auditors, LLC. This case shows Kraninger\u27s willingness to use the abusive power. This action, though, leaves open the question of whether she should, as a practical matter, continue to allow abusive allegations without further clarification. Thus, the era of regulation by enforcement continues