In the past several months, the federal agency has claimed authority over three litigation funders, sending a signal that it is investigating the industry and intends to rein in excesses. The bureaus latest case is a joint complaint against the funder RD Legal , filed Tuesday in Manhattan federal court by the CFPB and the New York attorney general. The suit won headlines because of who RD Legal allegedly scammed – 9/11 first responders and NFL retirees awaiting payouts from settlement funds. For the litigation funding industry, though, the RD Legal case is shaping up as a test of the CFPBs power over businesses that have previously operated out of the reach of federal regulators. In anticipation of the CFPBs suit, RDs lawyers at Caldwell Leslie & Proctor brought a declaratory judgment case against the bureau in Manhattan federal court. (RD brought a parallel suit against New York AG Eric Schneiderman, but Im focusing on RDs dispute with the CFPB.) RD argued that the CFPB does not have jurisdiction over its cash advances because it is not extending loans or credit to its customers. Its advances are structured as assignment and sale transactions in which plaintiffs awaiting settlement sell an interest in the proceeds they expect to collect. Those transactions, RD said, are not consumer financial products or services under the Consumer Protection Act, the Truth in Lending Act or any other federal law. The litigation financier J.G. Wentworth has also challenged the CFPBs regulatory power.
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