The Dodd-Frank Act's Expansion of State Authority to Protect Consumers of Financial Services

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  I. INTRODUCTION
 II. FEDERAL BANKING AGENCIES FAILED TO PROTECT CONSUMERS DURING THE
     HOUSING BOOM AND PREVENTED THE STATES FROM DOING SO
     A. The FRB Failed to Exercise Its Authority under HOEPA to Stop
        Predatory Lending
     B. The FRB Failed to Regulate Nonprime Lenders That Were
        Subsidiaries of Bank Holding Companies
     C. Federal Banking Agencies Issued Weak and Inadequate Guidance
        on nonprime Mortgages
     D. Federal Regulators Failed to Stop Predatory Lending Because of
        Their Belief in Deregulation and "Pushback" from the Financial
        Services Industry
        1. The FRB, the OTS and the OCC Followed Deregulatory Policies
           During the Nonprime Lending Boom
        2. The Financial Services Industry Strongly Resisted Efforts
           by Federal Regulators to Restrict Nonprime Mortgage Lending
     E. The OTS and the OCC Preempted Initiatives by the States to
        Stop Predatory Lending, Thereby Aggravating the Severity of
        the Financial Crisis
        1. Many States Adopted Laws and Brought Enforcement Actions to
           Stop Predatory Lending
        2. The OTS and the OCC Preempted State APL Laws and State
           Enforcement Efforts
        3. The Industry-Based Funding for the OTS and OCC Created a
           Conflict of Interest Between Their Supervisory Duties and
           Their Budgetary Concerns
        4. OTS and OCC Preemption Helped Federal Thrifts and National
           Banks to Establish Leading Positions as Subprime and Alt-A
           Mortgage Lenders
        5. The OTS, the OCC, and the FRB Failed to Prevent the
           Failures of Several Major Financial Institutions That Were
           Heavily Engaged in Originating and Securitizing Nonprime
           Mortgages
III. TITLE X OF DODD-FRANK GRANTS SUPPLEMENTAL LAWMAKING AND LAW
     ENFORCEMENT POWERS TO THE STATES AND IMPOSES SIGNIFICANT
     RESTRICTIONS ON THE OCC'S AUTHORITY TO PREEMPT STATE LAWS

     A. Title X Establishes a Federal "Floor" of Protection for
        Consumers of Financial Services
     B. Title X Empowers the States to Adopt Laws Providing Additional
        Protection to Consumers of Financial Services
     C. Title X Enables State Attorneys General to Enforce the CFP Act
        and the CFPB's Regulations
     D. Dodd-Frank Limits the Preemptive Authority of the OCC with
        Respect to National Banks and Federal Thrifts
        1. Dodd-Frank Establishes New Preemption Standards That Govern
           the Application of State Consumer Financial Laws to
           National Banks and Federal Thrifts
        2. Dodd-Frank's New Standards Significantly Limit the OCC's
           Authority to Preempt State Consumer Financial Laws
           a. Under Dodd-Frank, the OCC May Preempt a State Consumer
              Financial Law Only If That Law Prevents or Significantly
              Interferes With a National Bank's Exercise of Its Powers
           b. Dodd-Frank Requires the OCC to Act on a Case-by-Case
              Basis, to Show Substantial Evidence for Its Preemptive
              Determinations, and to Publish and Review Its
              Determinations Periodically
           c. Dodd-Frank Confirms that the NBA Is Governed by Conflict
              Preemption Rules, and that OCC Preemption Determinations
              Are Not Entitled to Chevron Deference
           d. Dodd-Frank Denies Preemptive Immunity to Most
              Subsidiaries, Affiliates and Agents of National Banks
        3. Dodd-Frank Requires the OCC to Rescind or Modify Its
           Existing Preemption Rules Except for the Regulation
           Governing the Charging of "Interest" under 12 U.S.C.
           [section] 85
           a. The OCC's Preemption Test Conflicts with the Barnett
              Bank Preemption Standard Incorporated by Dodd-Frank
           b. The OCC's Blanket Preemption Rules Are No Longer Valid
              in View of Dodd-Frank's Mandate for "Case-by-Case"
              Determinations Supported by "Substantial Evidence"
           c. …