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ABA: The American Bankers Association
Amicus Brief

Rebuttal ISO ABA's Motion for Preliminary Injunction

MISSISSIPPI BANKERS ASSOCIATION, CONSUMER BANKERS ASSOCIATION, AMERICAN BANKERS ASSOCIATION, AMERICA’S CREDIT UNIONS, ARVEST BANK, BANK OF FRANKLIN, THE COMMERCIAL BANK, Plaintiffs,

v. CONSUMER FINANCIAL PROTECTION BUREAU and ROHIT CHOPRA in his official capacity as Director of the CFPB, Defendants.

The CFPB agrees that, for the Final Rule to be valid, discretionary overdraft services must meet TILA’s definition of “credit,” which requires a “right” to “incur debt” or “defer payment.” Its argument for why that definition is met, however, ignores both the common meaning of “right” and the express language in deposit agreements denying such a “right.” The CFPB separately fails to adequately explain how its general rulemaking authority to further TILA’s disclosure purpose authorizes it to impose substantive limits on discretionary overdraft services, including a fee cap. Finally, the CFPB makes meritless challenges to the admissibility and sufficiency of Plaintiffs’ proffered evidence of irreparable harm. The Court should grant injunctive relief.

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