Federal Judge's Decision May Bind CFPB to Previously Withdrawn Guidance Documents

U.S. District Court Judge Barbara J. Rothstein granted, in part, the CFPB's motion to withdraw its amicus brief filed by the Biden-era CFPB regarding the "proper interpretation of the Fair Debt Collection Practices Act's prohibition on the collection of unauthorized amounts." Although the brief will be withdrawn, its substance may still influence the ultimate resolution of the matter.  

Salom et al. v. Nationstar Mortgage LLC, pending before the U.S. District Court for the Western District of Washington, challenged the legality of fees charged for mortgage payoff statements. The CFPB previously defended the Fair Debt Collection Practices Act (FDCPA) claim brought by an affected homeowner, emphasizing the fact that Nationstar could be liable for charging fees that are not "expressly authorized" by the FDCPA, a position published in the agency's Pay-to-Pay Advisory Opinion. However, the Trump-era CFPB has since withdrawn the Pay-to-Pay Advisory Opinion. In light of the withdrawal of the guidance document upon which the amicus brief was based, the CFPB requested leave to withdraw the amicus brief.

In a June 10, 2025, order, Judge Rothstein allowed the CFPB to withdraw the amicus brief but reserved the right to "consider its contents to the extent they remain consistent with operative statutes, regulations, and case law." The CFPB had requested that the amicus brief be struck from the record, which would have precluded Judge Rothstein from considering its contents in further proceedings. Judge Rothstein's refusal to ignore the previous position taken by the CFPB is in line with the plaintiff's position that "there is no basis to disregard the amicus brief altogether just because there has been a change of leadership" and "the operative laws, promulgated regulations and case law remain unchanged."

Judge Rothstein's order somewhat stymies the Trump Administration's pattern of requesting federal courts around the nation to allow the Trump-era CFPB to take positions contrary to those taken to the Biden-era CFPB. As Holland & Knight has previously reported, this has been a successful strategy to eliminate pending litigation and curtail the scope of the agency's authority outside of staff reductions and terminating agency contracts. Though Judge Rothstein's decision is not binding on other federal courts, it could be persuasive to judges considering attempts to turn on prior litigation strategies by not only the CFPB, but litigants nationwide.  

The CFPB has rescinded more than 60 documents providing guidance and interpretations of agency rules since May 2025. Although the guidance documents themselves have been withdrawn, they have been relied on by courts and regulators as the basis of legal theories. Though the CFPB may wish to unilaterally rescind the effect of these guidance documents, the content permeates judicial precedent, which is not affected by the CFPB's change in position. In light of this, and based on federal judges' interpretation of the longevity of guidance documents, the CFPB's previous positions may infiltrate decisions rendered in pending as well as future matters.

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