1

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

National Association of

 Mortgage Brokers, 

 Plaintiff, 

v. 

Board of Governors of

 the Federal Reserve System, et al.,

Defendants. 

Civil Action No. 1:11-cv-00506 (BAH)

Judge Beryl A. Howell

National Association of Independent

 Housing Professionals, Inc., 

Plaintiff, 

v. 

Board of Governors of

 the Federal Reserve System,

Defendant. 

Civil Action No. 1:11-cv-0489 (BAH)

Judge Beryl A. Howell

MEMORANDUM OPINION

Over the past few years, this country has grappled with an extended economic crisis, the 

roots of which have been attributed to failures in the home mortgage industry. In an effort to 

understand and correct failures in this market, Congress and the regulatory agencies overseeing 

the home mortgage industry held hearings, conducted studies, and ultimately proposed laws and 

regulations prohibiting industry practices deemed to be deceptive or unfair. In the case currently 

before the Court, two national trade organizations representing mortgage brokers and other 

independent housing professionals challenge the Federal Reserve Board’s authority and 

reasoning in promulgating certain prohibitions. The National Association of Independent 
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Housing Professionals, Inc. (hereinafter “NAIHP”) and the National Association of Mortgage 

Brokers (hereinafter “NAMB”) have requested the Court to issue a temporary restraining order 

and preliminary injunction to enjoin the Board of Governors of the Federal Reserve System 

(hereinafter “the Board”)1 from implementing a Final Rule, effective on April 1, 2011, that 

restricts certain compensation practices of loan originators relating to mortgage loans 

(hereinafter “the Rule”), 12 C.F.R. § 226.36(a), (d), (e); Federal Reserve System Final Rule 

Amending Regulation Z, 75 Fed. Reg. 58,533 (Sept. 24, 2010) (to be codified at 12 C.F.R. pt. 

226). NAIHP Appl. TRO and Mot. Prelim. Inj., No. 11-cv-489, Mar. 7, 2011, ECF No. 3; 

NAMB Mot. TRO and Mot. Prelim. Inj., No. 11-cv-506, Mar. 9, 2011, ECF Nos. 3, 4. The 

plaintiffs allege that in promulgating this Rule, the Board exceeded its authority under the Truth 

in Lending Act (“TILA”) and the Home Ownership and Equity Protection Act (“HOEPA”), and, 

if the Board did have authority to issue the Rule, the plaintiffs allege that the Rule is arbitrary 

and capricious. NAIHP Mem. Supp. Mot. Prelim. Inj., ECF No. 3 (hereinafter “NAIHP Mem.”), 

at 14-19; NAMB Mem. Supp. Mot. Prelim. Inj., ECF No. 4 (hereinafter “NAMB Mem.”), at 24-

39; see also 5 U.S.C. § 706(2). 

After reviewing NAIHP and NAMB’s motions for injunctive relief, the defendants’ 

opposition papers, amicus briefs,

2 as well as the record currently before the Court,

3 accompanying 

 1 NAMB also named in its Complaint the Board’s Chairman, Ben Bernanke, and the Board’s Director of the 

Division of Consumer and Community Affairs, Sandra Braunstein. 

2 On March 24, 2011, the Court granted the Center for Responsible Lending and the National Consumer Law 

Center’s request for leave to file a joint amicus brief in support of the defendants. Minute Order, No. 11-cv-506, 

Mar. 24, 2011. On March 25, 2011, the Court granted the Community Mortgage Banking Project and Community 

Mortgage Banking Research Fund’s request for leave to file a joint amicus brief in support of the plaintiffs. Minute 

Order, No. 11-cv-489, Mar. 25, 2011. 

3 At the time of this decision, the Court has yet to receive the full administrative record associated with the 

challenged Rule. Under Local Rule 65.1(d), the Court is urged to resolve motions seeking injunctive relief within 

21 days from the date of filing, which is particularly important here since the parties seek to enjoin implementation 

of an agency rule that is effective April 1, 2011. The current record before the Court, however, includes the Board’s 

notice of proposed rulemaking, Federal Reserve System Proposed Rule, 74 Fed. Reg. 43,232 (proposed August 26, 
3

declarations4 and applicable law, and following oral argument, the Court denies NAIHP and 

NAMB’s motions for a temporary restraining order and preliminary injunction. 

I. FACTUAL AND PROCEDURAL BACKGROUND

The plaintiffs claim that the Board’s Rule exceeds its authority and is arbitrary and 

capricious. A general description of the industry and practices that prompted the Board’s concern 

to promulgate the Rule provides a valuable context in evaluating these challenges. 

A. The Work of Mortgage Loan Originators and Mortgage Brokers

Mortgage brokers are independent financial professionals who work with consumers and 

lenders to obtain mortgage loans. NAIHP Mot. Prelim. Inj., ECF No. 3, Ex. 1, Marc S. Savitt 

Aff. (hereinafter “Savitt Aff.”), ¶ 3. Mortgage brokers are typically small businesses, employing

individual brokers and loan officers who “work with consumers to help them with the 

 

2009) (to be codified at 12 C.F.R. pt. 226), as well as the Board’s notice of the final rule, Federal Reserve System 

Final Rule Amending Regulation Z, 75 Fed. Reg. 58,509 (Sept. 24, 2010) (to be codified at 12 C.F.R. pt. 226). Cf. 

Am. Bioscience, Inc. v. Thompson, 243 F.3d 579, 582 (D.C. Cir. 2001) (remand of district court’s denial of 

preliminary injunction relief because “rather than calling for the administrative record, the district court appears to 

have relied on the parties’ written or oral representations to discern the basis on which the FDA acted. Surely that 

was not sufficient. For all we know, the attorneys were merely speculating.”); Citizens to Preserve Overton Park, 

Inc. v. Volpe, 401 U.S. 402, 419 (1971) (remanding to district court when “there is an administrative record that 

allows the full, prompt review of the Secretary’s action that is sought without additional delay which would result 

from having a remand to the Secretary.”). 

4 The plaintiffs submitted a total of thirteen affidavits: NAIHP submitted five affidavits, including affidavits from 

NAIHP’s President, two industry analysts, a survey research consultant, and a former employee of a company 

specializing in software for mortgage brokers. NAIHP Mot. Prelim. Inj., No. 11-cv-489, ECF No. 3, Ex. 1, Marc S. 

Savitt Aff. (President of NAIHP); NAIHP Reply Defs.’ Opp. Pls.’ Mot. Prelim. Inj., No. 11-cv-489, ECF No. 22, 

Exs. 1-4, Paul Muolo Aff. (employee of SourceMedia, which publishes quarterly rankings of residential originators); 

William F. Kidwell, Jr. Aff. (President of Impact Mortgage Management Advocacy and Advisory Group 

(“IMMAAG”)); Sarah Butler Aff. (Senior Consultant at NERA Economic Consulting); Rick Roque Aff. (former 

employee of Calyx Software, a mortgage originator software company). NAMB submitted eight affidavits, three 

from NAMB Board Members, and five from individuals running mortgage brokerage firms across the country. 

NAMB Mot. Prelim. Inj., No. 11-cv-506, ECF No. 4, Exs. 4-10, Michael D’Alonzo Aff. (President of the NAMB); 

Michael Anderson Aff. (NAMB Board Member and Chair of the NAMB Governmental Affairs Committee); Terry 

Clark Aff. (CEO of Platinum Mortgage in Madison, Alabama); Carlos Gutierrez Aff. (owner and President of CNC 

Mortgage, LLC in Minnetonka, Minnesota); Belinda M. Janecke Aff. (owner and managing partner of Pinnacle 

Mortgage Group, LLC in Mandeville, Louisiana); Residential Mortgage of South Carolina, LLC Aff. (affiant Kevin 

M. Breeland, General Manager of Residential Mortgage of South Carolina, LLC in Mt. Pleasant, South Carolina); 

Walter Financial, Inc. Aff. (affiant Richard F. Walter, President of Walter Financial, Inc. in Doylestown, 

Pennsylvania); NAMB Reply Defs.’ Opp. Pls.’ Mot. Prelim. Inj., No. 11-cv-506, ECF No. 25, Ex. 1, Michael 

Anderson Supplemental Aff..
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complexities of home purchases by taking the applications; performing financial and credit 

evaluations; collecting and preparing documents; working with realtors; ordering title searches, 

appraisals, and pay-off letters; assisting in remedying faulty credit reports or title problems; and 

facilitating loan closings.” Id.; see also NAMB Mot. Prelim. Inj., ECF No. 3, Michael J. 

D’Alonzo Aff. (hereinafter “D’Alonzo Aff.”), ¶ 9. 

For many consumers, an obstacle to getting a home loan is the upfront cost of obtaining a 

mortgage. Mortgage brokers have thus created mechanisms to defer such costs. One method of 

deferring upfront cost is by utilizing a “yield spread premium” (“YSP”). A YSP is the present 

dollar value of the difference between the lowest interest rate a lender would have accepted for a 

particular transaction and the interest rate the consumer ultimately agreed to pay to the lender. 

See Federal Reserve System Final Rule Amending Regulation Z, 75 Fed. Reg. 58,511 (Sept. 24, 

2010) (to be codified at 12 C.F.R. pt. 226) (hereinafter “Board Notice of Final Rule”); see also 

Savitt Aff., ¶ 4; NAIHP Mem., at 6; D’Alonzo Aff., ¶ 17. YSPs can be used to reduce the 

consumer’s upfront closing costs, compensate loan originators for their services, or both. Board 

Notice of Final Rule, 75 Fed. Reg. 58,511; see also Savitt Aff., ¶¶ 4, 6.

Mortgage brokers may receive compensation for their services through YSPs, the loan 

proceeds, or from the consumer’s preexisting resources. Board Notice of Final Rule, 75 Fed. 

Reg. 58,511; D’Alonzo Aff., ¶¶ 14-15. This compensation is provided either by the consumer, in 

“Consumer Pay Transactions,” by the lender in “Lender Pay Transactions,” or both. D’Alonzo 

Aff., ¶¶ 14-16. Most loan officers who work for mortgage brokers are compensated by their 

employers on a commission basis. Id. at ¶¶ 18-19. The commission-based compensation model 

for loan officers has been used in the industry for “decades, and it works well.” Id. at ¶ 19. The 

commission-based system is also pervasive because “many mortgage brokers are small 
5

businesses [and] [t]hese businesses often lack the capital reserves or transaction volume to justify 

paying loan officers on a salaried basis.” Id.

In recent years, the mortgage industry has transformed considerably. Savitt Aff., ¶¶ 5, 8. 

Previously, mortgage brokers would facilitate a consumer’s purchase of a loan, with the loan 

ultimately residing with a specific lender. Today, lenders themselves often re-package, sell, and 

securitize loans for the secondary market. Id. Thus, “originators who in the past may have been 

distinguishable from mortgage brokers increasingly function as brokers.” NAIHP Mem., at 7; see 

also Savitt Aff., at ¶ 5 (“Mortgage markets have evolved in recent years and consequently 

mortgage professionals and entities may work in multiple capacities. Lenders often know at the 

time of closing that they will promptly sell the loan and they know how much they will make 

from that sale.”). 

B. Regulation of Mortgage Brokers 

Since 1996, mortgage brokers and non-bank loan originators (independent loan 

originators) have been required to disclose to consumers the details of their compensation and 

their relationship with creditors. Savitt Aff., ¶ 7. Standard disclosure forms inform consumers

that the loan originator is “acting as an independent contractor and not as [the consumer’s] 

agent.” Savitt Aff., Ex. A, Mortgage Loan Origination Agreement. The disclosure forms further 

indicate that the loan originator “cannot guarantee the lowest price or best terms available in the 

market.” Id. These disclosure statements also provide details regarding the mortgage broker’s 

potential compensation, stating, inter alia, that “the retail price we offer you – your interest rate, 

total points and fees – will include our compensation. . . . In some cases, we may be paid all of 

our compensation by either you or the lender. . . . Alternatively, we may be paid a portion of our 

compensation by either you and the lender.” Id. 
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C. History and Promulgation of Board’s Rule on Loan Originator 

Compensation

Since 2006, the Board has examined loan originator compensation and its effect on 

consumers. Over the course of four Board hearings, an advanced notice of proposed rulemaking, two proposed rule-makings, and various studies, the Board reviewed options for 

protecting consumers from perceived unfair practices, and ultimately determined that the 

prohibitions reflected in the Rule would best protect consumers. See Federal Reserve System 

Notice of Public Hearing on the Home Equity Lending Market, 72 Fed. Reg. 30,380 (May 31, 

2007); Federal Reserve System Notice of Public Hearing on the Home Equity Lending Market, 

71 Fed. Reg. 26,513 (May 5, 2006); Federal Reserve System Proposed Rule Amending 

Regulation Z, 73 Fed. Reg. 1,673 (proposed Jan. 9, 2008) (to be codified at 12 C.F.R. pt. 226);

Federal Reserve System Final Rule, 73 Fed. Reg. 44,522 (July 30, 2008) (to be codified at 12 

C.F.R. pt. 226); Federal Reserve System Proposed Rule, 74 Fed. Reg. 43,232 (proposed August 

26, 2009) (to be codified at 12 C.F.R. pt. 226) (hereinafter “Board Notice of Proposed Rule”);

Federal Reserve System Final Rule Amending Regulation Z, 75 Fed. Reg. 58,509 (Sept. 24, 

2010) (to be codified at 12 C.F.R. pt. 226); NAIHP Mot. Prelim. Inj., Ex. 2, Macro International,

Summary of the Findings: Consumer Testing of Mortgage Disclosures (hereinafter “Macro

Study”) (July 10, 2008); Board Notice of Final Rule, 75 Fed. Reg. 58,511 n.4 (referencing Kellie 

K. Kim-Sung & Sharon Hermanson, Experiences of Older Refinance Mortgage Loan Borrowers: 

Broker- and Lender-Originated Loans, Data Digest No. 83, 3 (AARP Public Policy Inst., Jan. 

2003), available at http://assets.aarp.org/rgcenter/post-import/dd83_loans.pdf.). The Board held 

hearings regarding loan originator compensation in 2006 and 2007, and in December 2007 

proposed a rule that would “prohibit creditors from paying a mortgage broker more than the 

consumer had agreed in advance that the broker would receive.” Federal Reserve System 
7

Proposed Rule Amending Regulation Z, 73 Fed. Reg. 1,672, 1,673 (proposed Jan. 9, 2008). The 

proposed rule would also have required the written agreement between the consumer and broker 

to contain disclosures which the Board subsequently subjected to consumer testing.5

On July 30, 2008, the Board published a notice of a final rule that was intended to

implement new consumer-protection regulations for mortgage lending and servicing. When 

proposing these rules, the Board withdrew its previous proposal to “prohibit creditors from 

paying a mortgage broker more than the consumer had agreed in advance that the broker would 

receive” and the associated model disclosures because it concluded that additional testing was 

needed on the issue. Federal Reserve System Final Rule, 73 Fed. Reg. 44,522, 44,523 (July 30, 

2008) (to be codified at 12 C.F.R. pt. 226). Specifically, the Board found that the proposed 

disclosures did not reduce consumer confusion, but rather “presented a significant risk of 

misleading consumers regarding both the relative costs of brokers and lenders, and the role of 

brokers in their transactions.” Board Notice of Final Rule, 75 Fed. Reg. 58,511. The Board 

indicated its intent to explore other options to address potential unfairness associated with loan 

originator compensation arrangements, such as Yield Spread Premiums. Id.; see also Federal 

Reserve System Final Rule, 73 Fed. Reg. 44,563 (July 30, 2008).

On August 26, 2009, the Board published another notice of proposed rulemaking in 

which it again proposed to add and amend several sections of Regulation Z, the Board’s 

 5 In order to gauge the effectiveness of the model language for mortgage broker disclosure statements, the Board 

contracted with Macro International to conduct “a series of cognitive in-depth interviews with consumers” to 

evaluate “how clearly the model language communicated the intended content, and to help the Board make any 

necessary revisions to make the language more effective.” Macro Study, at 1. This testing revealed significant 

consumer confusion regarding mortgage brokers’ compensation and mortgage brokers’ relationship with other 

actors in the mortgage loan industry. Id. at ii. For example, “despite repeated attempts to address [consumer 

confusion] through revisions of the [supplied broker’s] agreement” most participants “did not understand how lender 

payments to brokers created a financial incentive for brokers to provide loans with higher interest rates. . . . [T]his 

fact was extremely counter-intuitive to participants – many of whom had previously assumed that a broker would 

work in their best interest.” Id. As a result of this confusion, “a significant number [of participants] either did not 

believe or ignored the conflict of interest described in the agreement.” Id. at 26. A “key reason” for this confusion 

was that these consumers “did not realize that brokers have influence over the [interest] rates they offer their 

customers.” Id. at ii.
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regulations implementing the Truth In Lending Act (“TILA”). Board Notice of Proposed Rule, 

74 Fed. Reg. 43,232. Pursuant to its authority under TILA Section 129(l)(2), (codified at 15 

U.S.C. §1639(l)(2)), to prohibit unfair and deceptive practices “in connection with” mortgage 

loans and mortgage refinancing, the Board sought to prohibit certain forms of mortgage broker 

compensation. Id. at 43,282-86. On September 24, 2010, the Board issued its Final Rule, which 

retained only those provisions from its 2009 notice of proposed rulemaking that prohibited

“unfair” loan originator compensation practices. Board Notice of Final Rule, 75 Fed. Reg. 

58,509. Specifically, the Rule prohibits (1) basing loan originator compensation on a loan’s 

terms or conditions, other than loan amount, (2) compensating a loan originator from both the

consumer and any third party for the same transaction (the “anti-split compensation provision”); 

and (3) a loan originator from steering a consumer to a particular loan in order to receive greater 

compensation (the “anti-steering provision”).

6

 Id.

 6 The Final Rule states in pertinent part: 

(d) Prohibited payments to loan originators. 

(1) Payments based on transaction terms or conditions. 

(i) In connection with a consumer credit transaction secured by a dwelling, no 

loan originator shall receive and no person shall pay to a loan originator, directly 

or indirectly, compensation in an amount that is based on any of the transaction's 

terms or conditions.

. . .

(2) Payments by persons other than consumer. If any loan originator receives 

compensation directly from a consumer in a consumer credit transaction secured by a 

dwelling:

(i) No loan originator shall receive compensation, directly or indirectly, from 

any person other than the consumer in connection with the transaction; and

(ii) No person who knows or has reason to know of the consumer-paid 

compensation to the loan originator (other than the consumer) shall pay any 

compensation to a loan originator, directly or indirectly, in connection with the 

transaction.

. . . 

(e) Prohibition on steering. (1) General. In connection with a consumer credit transaction secured 

by a dwelling, a loan originator shall not direct or “steer” a consumer to consummate a transaction 

based on the fact that the originator will receive greater compensation from the creditor in that 

transaction than in other transactions the originator offered or could have offered to the consumer, 

unless the consummated transaction is in the consumer’s interest.

Id. at 58,534.
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In issuing this rule, the Board stated that its purpose “is to protect consumers in the 

mortgage market from unfair or abusive lending practices that can arise from certain loan 

originator compensation practices, while preserving responsible lending and sustainable 

homeownership.” Id. at 58,509. These three new prohibitions are intended to eliminate 

incentives for mortgage brokers to offer consumers loans with less favorable terms. Id. at 

58,514-15. The Final Rule becomes effective on April 1, 2011. Id. at 58,530. 

D. NAIHP AND NAMB LAWSUITS

On March 7, 2011, twenty-five days before the Rule’s effective date, NAIHP filed a 

Complaint challenging the Board’s authority and reasonableness in prohibiting the loan 

originator compensation practices set forth in 12 C.F.R. § 226.36(d) and (e). Plaintiff NAIHP is 

a trade corporation that represents independent housing professionals, including loan originators, 

across the country. Savitt Aff., ¶ 1. NAIHP’s specifically challenges the prohibition on (1) basing

loan originator compensation on a loan’s terms or conditions, other than the loan amount; (2) 

loan originator compensation from both the consumer and any third party for the same 

transaction; and (3) a loan originator from steering a consumer to a particular loan in order to 

receive greater compensation. NAIHP moved for a temporary restraining order and a 

preliminary injunction to enjoin the Board from implementing the Rule. No. 11-cv-489, ECF 

No. 3. At the Court’s request, the parties filed a Joint Stipulation agreeing to a prompt briefing 

schedule, which the Court ordered. Minute Order, No. 11-cv-489, March 10, 2011.

Two days after NAIHP filed its Complaint, on March 9, 2011, NAMB filed its own 

challenge of the Board’s Rule, but contested only the Board’s authority and reasonableness in 

promulgating § 226.36(d)(2), the provision prohibiting loan originators from receiving other 

compensation when they are compensated by a consumer. NAMB Compl., ¶ 1. NAMB is also a 
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national trade organization, but represents only the interests of the mortgage broker industry. 

D’Alonzo Aff., ¶ 4. Like NAIHP, NAMB immediately requested a temporary restraining order 

and preliminary injunction. No. 11-cv-506, ECF Nos. 3, 4. NAMB also moved for expedited 

discovery, seeking the Board’s production of the entire administrative record and “any 

documents (electronic or hard copy) relating to the Rule’s restrictions on loan originator 

compensation.” NAMB Mem. Supp. Mot. Expedited Disc., No. 11-cv-506, ECF No. 5, at 3. 

On March 10, 2011, the Board filed a notice of related case and a motion to consolidate 

NAIHP and NAMB’s suits on the basis that both plaintiffs were challenging the same Rule on 

the same bases, namely, that the Board violated the Administrative Procedure Act by 

promulgating the Rule without statutory authority and, in any event, acted arbitrarily and 

capriciously. Board’s Mot. to Consolidate the Civil Actions, Nos. 11-cv-489, 11-cv-506, March 

10, 2011, ECF No. 10, at 3. The Court granted defendants’ motion, consolidated the cases, and 

ordered all parties to abide by the expedited briefing schedule previously ordered to resolve the 

motions for injunctive relief. Minute Order, Nos. 11-cv-489, 11-cv-506, dated March 11, 2011. 

Following consolidation of the cases, NAMB requested the Court to reconsider 

consolidation, arguing that NAMB’s challenge is narrower in scope as it “is only seeking to 

challenge a small sub-section of the Board’s final rule” and that abiding by the briefing schedule 

set forth in the NAIHP matter would cause “NAMB’s members significant and irreparable harm 

and prejudice.” NAMB Mem. Supp. of Mot. Expedited Recons., March 14, 2011, ECF No. 11, at 

2. The Court denied NAMB’s motion, explaining that NAIHP and NAMB’s legal challenge 

involved the same questions of law and fact, and that consolidation of the cases will expedite, 

rather than delay, judicial review. Memorandum Opinion and Order, Nos. 11-cv-489, 11-cv-506, 

Mar. 21, 2011. In its opinion declining to reconsider consolidation of the cases, the Court also 
11

addressed NAMB’s Motion for Expedited Discovery, granting in part and denying in part the 

latter motion. Specifically, the Court ordered the defendants to expeditiously produce the 

administrative record, but denied the NAMB’s request for “any documents (electronic or hard 

copy) relating to the Rule’s restrictions on loan originator compensation.” Id.; NAMB Mem. 

Supp. of Mot. Expedited Recons., ECF No. 11, at 3.

The Court now considers both NAIHP and NAMB’s motions for injunctive relief from 

the Board’s Rule prohibiting certain loan originator compensation practices. 

II. PLAINTIFFS’ MOTIONS FOR TEMPORARY RESTRAINING ORDER AND 

PRELIMINARY INJUNCTION

The court may issue a temporary restraining order (“TRO”) when a movant is faced with 

the possibility that irreparable injury will occur even before the hearing for a preliminary 

injunction required by Federal Rule of Civil Procedure 65(a) can be held. FED. R. CIV. P.

65(b)(1). The purpose of a TRO is to maintain the status quo of a case until the court has an 

opportunity to hear a request for fuller relief. Id.; see, e.g., Hosp. Res. Pers., Inc. v. United 

States, 860 F. Supp. 1554, 1556 (S.D. Ga. 1994) (explaining that the purpose of a TRO is to 

preserve the status quo pending a hearing for a preliminary or permanent injunction). The factors 

that apply in evaluating requests for a temporary restraining order are identical to those that 

apply in evaluating requests for preliminary injunctions. See Al-Fayed v. C.I.A., 254 F.3d 300, 

303 n.2, (D.C. Cir. 2001); Sobin v. Bechtol, 168 Fed. Appx. 452, 452 (D.C. Cir. 2005) (citing 

Jacksonville Port Auth. v. Adams, 556 F.2d 52, 57 (D.C. Cir. 1977)); Beattie v. Barnhart, 663 F. 

Supp. 2d 5, 8 (D.D.C. 2009); Morgan Stanley DW, Inc. v. Rothe, 150 F. Supp. 2d 67, 72 (D.D.C. 

2001). In this case, the Court considers the motions for both the TRO and preliminary 

injunction together. 

A. STANDARD OF REVIEW
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To warrant injunctive relief, the plaintiff “must establish that he is likely to succeed on 

the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the 

balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. 

Natural Res. Def. Council, 129 S.Ct. 365, 374 (2008); Gordon v. Holder, No. 10-cv-5227, 2011 

WL 559002, at *1 (D.C. Cir. Feb. 18, 2011). The purpose of a preliminary injunction “is merely 

to preserve the relative positions of the parties until a trial on the merits can be held.” Univ. of 

Tex. v. Camenisch, 451 U.S. 390, 395 (1981). It is an extraordinary form of interim relief, 

however, and “should not be granted unless the movant, by a clear showing, carries the burden of 

persuasion.” Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (internal citations omitted). 

These four preliminary injunction factors “interrelate on a sliding scale,” and the Court 

must balance the strengths of the factors against each other. Ass’n of Cmty. Orgs. for Reform 

Now v. FEMA, 463 F. Supp. 2d 26, 33 (D.D.C. 2006)(citing Serono Labs v. Shalala, 158 F.3d 

1313, 1318 (D.C. Cir. 1998)). A particularly weak argument for one factor may be more than the 

other factors can compensate for, however. See, e.g., Taylor v. Resolution Trust Corp., 56 F.3d 

1497, 1507 (D.C. Cir. 1995) (finding that given the inadequacy of the plaintiff’s prospects for 

success on the merits, there may be no showing of irreparable injury that would entitle him to 

injunctive relief). In meeting the requisite burden for injunctive relief, “it is particularly 

important for the movant to demonstrate a likelihood of success on the merits.” Konarski v. 

Donovan, No. 10-cv-1733, 2011 WL 383995, at *2 (D.D.C. Feb. 7, 2011). Without a 

“substantial indication” of the plaintiff’s likelihood of success on the merits, “there would be no 

justification for the court’s intrusion into the ordinary processes of administration and judicial 

review.” Elite Entm’t, Inc. v. Reshammiya, No. 08-0641, 2008 U.S. Dist. LEXIS 31580, at *4

(D.D.C. Apr. 18, 2008)(citing Am. Bankers Ass’n v. Nat’l Credit Union Admin., 38 F. Supp. 2d 
13

114, 140 (D.D.C. 1999)). Assessing the likelihood of success on the merits, particularly where, 

as here, the full administrative record is not before the Court, “does not involve a final 

determination of the merits, but rather the exercise of sound judicial discretion on the need for 

interim relief.” Nat’l Org. for Women, Wash. D.C. Chapter v. Soc. Sec. Admin. of the Dep’t of 

Health and Human Servs., 736 F.2d 727, 733, (D.C. Cir. 1984) (footnote and internal quotation 

marks omitted).

For the following reasons, the Court DENIES plaintiffs’ motions for injunctive relief 

because they have failed to establish a likelihood of success on the merits. 

B. DISCUSSION

Plaintiffs’ motions for injunctive relief require the Court to prospectively assess the 

merits of the plaintiffs’ cases and their need for immediate judicial intervention. Although 

plaintiffs’ affiants claim irreparable harm if the Rule becomes effective, the grounds plaintiffs 

have proffered for challenging the Rule do not appear to have a high likelihood of success. 

Judicial review of agency action is afforded considerable deference; and even though mortgage 

brokers will be substantially affected by the Rule, this injury cannot overcome plaintiffs’ failure 

to show that the Rule was issued without authority or is arbitrary or capricious. 

1. Plaintiffs Have Associational Standing

At the outset, in evaluating plaintiffs’ likelihood of success on the merits, the Court must 

first determine that these two associations have standing to bring this action challenging the Final 

Rule.7

 “An association has standing to bring suit on behalf of its members when its members 

would otherwise have standing to sue in their own right, the interests at stake are germane to the 

 7 While the Board raises no issue concerning the plaintiffs’ standing, the Court must satisfy itself that it may 

properly exercise jurisdiction over the action. See Summers v. Earth Island Inst., 129 S.Ct. 1142, 1152 (2009) (“it is 

well established that the court has an independent obligation to assure that standing exists, regardless of whether it is 

challenged by any of the parties”); Fund Democracy LLC v. SEC, 278 F.3d 21, 25 (D.C. Cir. 2002); Am. Chem.

Council v. Dep’t of Transp., 468 F.3d 810, 814-15 (D.C. Cir. 2006).
14

organization’s purpose, and neither the claim asserted nor the relief requested requires the 

participation of individual members in the lawsuit.” Friends of the Earth, Inc. v. Laidlaw Envtl. 

Servs. (TOC), Inc., 528 U.S. 167, 169 (2000); see also Bhd. of R.R. Signalmen v. Surface Transp. 

Bd., No. 11-cv-1138, slip op. at 2 n.2 (D.C. Cir. Mar. 29, 2011) (quoting Ass’n of Flight 

Attendants-CWA, AFL-CIO v. U.S. Dep’t of Transp., 564 F.3d 462, 464 (D.C. Cir. 2009). Thus, 

in analyzing standing, the pertinent inquiry is whether the underlying three-pronged requirement 

for associational standing has been met: namely, whether plaintiffs’ members would have 

standing to sue in their own right; whether the interests at stake are germane to the organization’s 

purpose; and whether the claim or relief requested requires the participation of individual 

members in the lawsuit. Am. Chem. Council v. Dep’t of Transp., 468 F.3d 810, 815 (D.C. Cir. 

2006)(citing United Food and Commercial Workers Union Local 751 v. Brown Grp., Inc., 517 

U.S. 544, 553 (1996) (quoting Hunt v. Wash. State Apple Adver. Comm’n, 432 U.S. 333, 343 

(1977))).

As to the first prong, an association’s members “have standing to sue in their own right,” 

when they have (1) “suffered an injury in fact--an invasion of a legally protected interest which 

is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical”; (2) 

“the injury has to be fairly traceable to the challenged action of the defendant”; and (3) “it must 

be likely, as opposed to merely speculative, that the injury will be redressed by a favorable 

decision.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) (quotations and citations 

omitted); see also Fund Democracy LLC v. SEC, 278 F.3d 21, 25 (D.C. Cir. 2002)(citing 

Florida Audubon Soc’y v. Bentsen, 94 F.3d 658, 663 (D.C. Cir. 1996) (en banc)). The record on 

the standing issue consists of the Complaints and affidavits filed by both plaintiffs. In its 

Complaint, plaintiff NAIHP avers that it is a for-profit corporation representing thousands of 
15

independent housing professionals from around the country, including mortgage brokers and at 

least one member who has standing to sue in its own right. NAIHP Compl., ¶¶ 6, 9, 12; see also

Savitt Aff., ¶ 1. The NAIHP Complaint further alleges that its members will be harmed by the 

Final Rule, which will “limit [] the compensation of loan originators who are independent 

mortgage brokers,” “effectively prevent mortgage brokers from competing for business in certain 

instances and force brokers to choose which regulations to violate in other instances.” Id. at ¶¶ 

39, 41. Likewise, plaintiff NAMB alleges that it is a not-for-profit trade association representing 

6,000 mortgage broker members. NAMB Compl., ¶ 5. NAMB alleges that the portion of the 

Final Rule that prohibits “mortgage brokers from paying their employee/loan officers a 

commission in a Consumer Pay Transaction has already begun to and will continue to cause 

immediate, catastrophic and far-reaching harm.” Id. at ¶ 40.

The Board’s “Supplementary Information” in connection with publication of the Final 

Rule acknowledged the real, concrete and directly traceable impact of this Rule on the members 

of both associations that are mortgage brokers and loan originators. The Board acknowledged 

that, “the Board believes that this Final Rule will have a significant economic impact on a 

substantial number of small entities,” and recognized that many of these entities would be “small 

mortgage broker entities.” Board Notice of Final Rule, 75 Fed. Reg. 58,530, 58,532. The Board 

further found that “these smaller entities may experience relatively higher costs to implement the 

final rule,” but nevertheless concluded that “the benefits of the [loan originator compensation] 

prohibition outweigh the associated compliance costs.” Id. at 58,518.

As to the second prong, NAMB states that in representing mortgage brokers, it 

“advocates for public policies that serve the mortgage consumer by promoting competition, 

facilitating homeownership and ensuring quality service.” NAMB Compl., ¶ 5. NAIHP similarly 
16

“represents the interests of homebuyers and advocates for public policies that serve the mortgage 

consumer by promoting competition, facilitating homeownership and ensuring quality service.” 

NAIHP Compl., ¶ 12. Both associations have purposes that are focused on the policy issues 

affecting mortgage brokers and loan originators that are at stake in this litigation. 

Finally, the relief sought by both plaintiffs to enjoin enforcement of the Final Rule does 

not require the participation of individual members of either association for this relief to be 

effective. Thus, the Court finds that the Complaints’ allegations, together with the supporting 

affidavits submitted by the plaintiffs, sufficiently establish associational standing by both NAIHP 

and NAMB to challenge the Final Rule. 

2. Plaintiffs Have Not Demonstrated Their Likelihood of Success on the 

Merits

In order to succeed on the merits, plaintiffs must demonstrate under the Administrative 

Procedure Act (“APA”) that the Board’s action in promulgating the Rule was arbitrary or 

capricious, or in excess of statutory authority. 5 U.S.C. § 706(2)(A),(C). Plaintiffs assert two 

principal grounds for challenging the Board’s Rule: First, plaintiffs argue that the Board does 

not have statutory authority to regulate the compensation of loan originators under TILA. 

Second, even if the Board does have authority to promulgate the Rule, plaintiffs contend that the 

Rule is arbitrary and capricious. Plaintiffs’ arguments are likely to be unavailing on both counts. 

As discussed more fully below, the Court holds that TILA grants the Board broad 

authority to regulate unfair and deceptive practices in connection with consumer mortgage loans, 

and this authority includes the power to issue regulations pertaining to loan originator 

compensation practices that it perceives to be unfair. Further, the current record before the Court

does not support the plaintiffs’ contention that the Board acted arbitrarily or capriciously in 

promulgating the Rule. Rather, the Rule has rational support and explanation. 
17

 The plaintiffs’ likelihood of success on the merits is therefore low. Given this low 

probability of success on the merits, even when balanced against the potential irreparable harm 

the plaintiffs’ members may face, the plaintiffs have not met their burden of persuading the 

Court that injunctive relief is necessary.

a. The Board’s Authority to Promulgate the Rule Under TILA

Plaintiffs argue that the Board exceeded its authority under TILA when it undertook to 

regulate compensation for loan originators. Specifically, NAIHP argues that the “Board is 

without authority to regulate the compensation of non-bank loan originators or to apply 

provisions of 15 U.S.C. §1639 (l)(2)(A) [the TILA section relied upon by the Board to 

promulgate the Final Rule] to mortgages other than those covered by Section 1639.” NAIHP 

Mem., at 2, 14-17. NAMB further argues that the Board exceeds its authority in attempting to

regulate mortgage brokers, “who are not subject to the restrictions and requirements of TILA.” 

NAMB Mem., at 35. The Court disagrees. 

Under the APA, the Court must set aside agency actions that are in excess of the 

agency’s statutory jurisdiction, authority, or limitations. 5 U.S.C. § 706(2)(C). To determine 

whether an agency exceeded its statutory authority, the Court must engage in the two-step 

inquiry established by the Supreme Court in Chevron U.S.A. Inc. v. Natural Res. Defense 

Council, Inc., 467 U.S. 837 (1984). See FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 

120, 132 (2000); Bhd. of R.R. Signalmen v. Surface Transp. Bd., No. 11-cv-1138, slip op. at 7 

(D.C. Cir. Mar. 29, 2011). Chevron directs the Court first to ask “whether Congress has directly 

spoken to the precise question at issue.” Bhd. of R.R. Signalmen, No. 11-cv-1138, slip op. at 7 

(quoting Chevron, 467 U.S. at 842). If so, the inquiry is at an end; the court “must give effect to 

the unambiguously expressed intent of Congress.” Id. (quoting Chevron, 467 U.S. at 843). If the 
18

statutory text is silent or unclear with respect to the particular question, the Court must then 

evaluate whether the agency’s action is based upon a permissible construction of the statute. Id.

(quoting Chevron, 467 U.S. at 843). For this second step of the Chevron analysis, the Court 

notes that the Board has been granted a special degree of deference in its administration of the 

TILA. See Anderson Bros. Ford v. Valencia, 452 U.S. 205, 219 (1981) (“absent some obvious 

repugnance to the statute, the Board’s regulation implementing [TILA] should be accepted by the 

courts . . .”); Ford Motor Credit Co. v. Milhollin, 444 U.S. 555, 559-60 (1980); Mourning v. 

Family Publ’n Serv., Inc., 411 U.S. 356, 369-71 (1973). Congress delegated “expansive 

authority” to the Board in order to “elaborate and expand the legal framework governing 

commerce in credit.” Milhollin, 444 U.S. at 559-60. As such, the Congress gave the Board 

“broad administrative lawmaking power” and “designated [the Board] as the primary source for 

interpretation and application of the truth-in-lending law.” Id. at 566.

In promulgating the challenged Rule, the Board relied on the authority granted to the 

agency under TILA,8 15 U.S.C. §1639 (l)(2).9 Board Notice of Final Rule, 75 Fed. Reg. 58,509. 

This provision authorizes the Board to “prohibit acts or practices in connection with -- (A) 

mortgage loans that the Board finds to be unfair, deceptive, or designed to evade the provisions 

 8 On July 21, 2011, pursuant to the Dodd-Frank Wall Street Reform and Consumer Act, Pub. L. No. 111-203, 124 

Stat. 1376 (2010) (the “Dodd-Frank Act”), the newly formed Consumer Financial Protection Bureau (“CFPB”) will 

assume primary regulatory authority over the mortgage industry and exclusive rulemaking authority under TILA and 

HOEPA. Bureau of Consumer Financial Protection, Designated Transfer Date, 75 Fed. Reg. 57,252 (Sept. 20, 

2010); see also Dodd-Frank Act, § 1002(12), 124 Stat. 1957; §1012(a)(10), 124 Stat. 1965. Plaintiffs contend that 

the imminent transfer of the Board’s authority to promulgate regulations under TILA and HOEPA should weigh in 

favor of temporarily enjoining the Rule. As the Board indicated at oral argument, however, until the CFPB assumes 

its authority the Board has power to promulgate rules and regulations under TILA and HOEPA. See Transcript of 

Oral Argument at 41-43, NAIHP v. Bd. of Governors of the Federal Reserve Sys., No. 11-cv-489, NAMB v. Bd. of 

Governors of the Fed. Reserve Sys., No. 11-cv-506 (Mar. 29, 2011). If Congress had intended to limit the Board’s 

power to promulgate such rules before the CFPB assumes authority, it could have done so.

9 Section 1639(l)(2) was enacted in 1994 under the Home Ownership and Equity Protection Act (HOEPA), Pub.L. 

103-325, 15 U.S.C. § 1639 et seq., which amended TILA to add protections for borrowers involved in “high cost” 

loan transactions and, more generally, to prevent abusive lending practices. See generally Cooper v. First Gov’t 

Mortg. and Investors Corp., 238 F. Supp. 2d 50, 54 (D.D.C. 2002) (“Faced with increasing reports of abusive 

practices in home mortgage lending, Congress enacted HOEPA in 1994 as an amendment to TILA.”).
19

of this section; and (B) refinancing of mortgage loans that the Board finds to be associated with 

abusive lending practices, or that are otherwise not in the interest of the borrower.” 15 U.S.C. § 

1639(l)(2). 

NAIHP contends that Section 1639(l)(2) “applies only to the high-cost mortgages and the 

creditors using such mortgages that are described in 15 U.S.C. § 1602(aa).”10 NAIHP Mem., at 

16. The text of Section 1639(l)(2), however, indicates no such limitation. Other subsections of

Section 1639 apply only to high cost mortgages, as defined in Section 1602(aa), and the text of 

those subsections contain language indicating that the provisions apply to mortgages “referred to 

in section 1602(aa).” See, e.g., 15 U.S.C. §§ 1639 (a)(1); (c)(1)(A); (d)-(h). Noticeably absent 

from Section 1639(l), however, is any reference to Section 1602(aa) mortgages. Rather, Section 

1639(l)(2) instructs the Board to regulate unfair and deceptive practices “in connection with” 

“mortgage loans” and “mortgage refinancing.” The text of Section 1639(l)(2) is broad and 

provides no indication that it is to be limited in scope, let alone limited to high cost mortgages

under section 1602(aa). If Congress intended such a limitation on the Board’s authority in

Section 1639(l)(2), Congress would and could have included within the text of that subsection

language referring to Section 1602(aa) high-cost mortgages, just as it did for other subsections in 

Section 1639. The Court will not read into 15 U.S.C. § 1639 (l)(2) language that is simply not 

there. See Russello v. United States, 464 U.S. 16, 23 (1983) (“[W]here Congress includes 

particular language in one section of a statute but omits it in another section of the same Act, it is 

generally presumed that Congress acts intentionally and purposely in the disparate inclusion or 

exclusion.”)(quoting United States v. Wong Kim Bo, 472 F.2d 720, 722 (5th Cir. 1972); see also 

 10 Section 1602(aa) defines high-cost mortgages, which Congress initially described as those in which “the annual 

percentage rate at consummation of the transaction will exceed by more than 10 percentage points the yield on 

Treasury securities having comparable periods of maturity. . . or . . . the total points and fees payable by the 

consumer at or before closing will exceed the greater of (i) 8 percent of the total loan amount; or (ii) $400.” 15 

U.S.C. § 1602(aa)(1)(A). Congress authorized the Board to adjust these cost-thresholds every two-years. 15 U.S.C. § 

1602(aa)(2).
20

Milhollin, 444 U.S. at 565 (“[L]egislative silence is not always the result of a lack of prescience; 

it may instead be betoken permission or, perhaps, considered abstention from regulation. In that 

event, judges are not accredited to supersede Congress or the appropriate agency by embellishing 

upon the regulatory scheme.”); see also TRW, Inc. v. Andrews, 534 U.S. 19, 21 (2001) (“[I]t is a 

cardinal principle of statutory construction that the statute ought, upon the whole, be so 

construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void or 

insignificant.”)(internal quotations and citations omitted).

 Plaintiff NAMB alternatively contends that the Board is without authority to regulate 

mortgage brokers’ compensation because TILA and HOEPA “apply only to ‘creditors,’ as that 

term is defined in 15 U.S.C. § 1602(f),” and this definition cannot include mortgage brokers. 

NAMB Mem., at 36. NAMB is correct that ‘creditor,’ as defined in Section 1602(f), does not 

include mortgage brokers.11 See Cetto v. LaSalle Bank Nat’l Ass’n, 518 F.3d 263, 273 (4th Cir. 

2008); Robey-Harcourt v. Bencorp Fin. Co., 326 F.3d 1140, 1142 (10th Cir. 2003); Davis v. 

Wilmington Fin. Inc., No. 09-cv-1505, 2010 WL 1375363, at *4 (D. Md. May 26, 2010). The 

TILA provision, Section 1639(l)(2), which is relied upon by the Board in promulgating the Rule, 

grants broad discretionary authority to the Board without any reference or limitation to 

“creditors.” In short, there is no textual basis for NAMB’s assertion that the Board’s authority 

under Section 1639(l)(2) is limited only to creditors. Rather, the language of the statute is clear 

 11 TILA defines a creditor as “a person who both (1) regularly extends, whether in connection with loans, sales of 

property or services, or otherwise, consumer credit which is payable by agreement in more than four installments or 

for which the payment of a finance charge is or may be required, and (2) is the person to whom the debt arising from 

the consumer credit transaction is initially payable on the face of the evidence of indebtedness or, if there is no such 

evidence of indebtedness, by agreement.” 15 U.S.C. § 1602(f). Mortgage brokers are not persons to whom the 

consumer’s debt is initially payable. See Cetto v. LaSalle Bank Nat’l Ass’n, 518 F.3d 263, 269 (4th Cir. 2008) (“It is 

undisputed that [the mortgage broker] is not a “creditor” according to § 1602(f)’s first sentence, because [the 

mortgage broker] is not ‘the person to whom the debt arising from [the loan] is initially payable’ on the face of the 

loan documents.”) (emphasis in original).
21

that the Board has power to regulate all practices “in connection” with mortgage loans that the 

Board finds to be unfair, deceptive, or designed to evade disclosure requirements. 

The statute the Board relies upon for authority to promulgate the Rule grants the agency 

broad authority to do so. Section 1639(l)(2) is not limited to high-cost mortgages as defined in 5 

U.S.C. §1602(aa), nor does the Board’s authority under that section apply only to “creditors” as 

defined in 1602(f). Given that the language of Section 1639(l)(2) is broad and unambiguous on 

its face, the Court need not move to the second-step of the Chevron analysis because “that is the 

end of the matter, for the court as well as the agency, must give effect to the unambiguously 

expressed intent of Congress.” Chevron, 467 U.S. at 842-43.

b. The Rule is Not Arbitrary and Capricious

Plaintiffs next contend that the Rule should be set aside because it is arbitrary and 

capricious. The APA instructs the Court to set aside agency actions that are found to be

“arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. 

§ 706(2)(A). Examination of the Board’s rationale for issuance of the Rule -- even based upon 

the limited record before the Court at this stage of the case -- makes clear that the Rule is not 

unreasonable, without factual basis, or irrational, and that, therefore, the plaintiffs are unable to 

demonstrate a substantial likelihood of success in challenging the Rule on this basis.

i. “Arbitrary or Capricious” Standard of Review

In evaluating agency actions under the “arbitrary or capricious” standard, the Court must 

consider “whether the [agency’s] decision was based on a consideration of the relevant factors 

and whether there has been a clear error of judgment.” Marsh v. Oregon Natural Res. Council,

490 U.S. 360, 378 (1989) (internal quotation marks and citation omitted). The scope of this 

review “is narrow and a court is not to substitute its judgment for that of the agency.” Motor 
22

Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). The Court must 

look to see “whether the decision was based on a consideration of the relevant factors and 

whether there was clear error of judgment.” DIRECTV, Inc. v. FCC, 110 F.3d 816, 826 (D.C.

Cir. 1997) (quoting Motor Vehicle Mfrs., 463 U.S. at 43).

At the very least, the agency must have reviewed relevant data and articulated a 

satisfactory explanation establishing a “rational connection between the facts found and the 

choice made.” Motor Vehicle Mfrs., 463 U.S. at 43 (internal quotation omitted); see also Pub. 

Citizen, Inc. v. Fed. Aviation Admin., 988 F.2d 186, 197 (D.C. Cir. 1993)(“The requirement that 

agency action not be arbitrary or capricious includes a requirement that the agency adequately 

explain its result.”). If an agency “failed to provide a reasoned explanation, or where the record 

belies the agency’s conclusion, [the court] must undo its action.” Cnty. of Los Angeles v. 

Shalala, 192 F.3d 1005, 1021 (D.C. Cir.1999). Agency actions are found to be arbitrary and 

capricious if the agency “relied on factors which Congress has not intended it to consider, 

entirely failed to consider an important aspect of the problem, offered an explanation for its 

decision that runs counter to the evidence before the agency, or is so implausible that it could not 

be ascribed to a difference in view or the product of agency expertise.” Motor Vehicle Mfrs., 463 

U.S. at 43. The agency’s explanation cannot “run [ ] counter to the evidence,” id., but Courts 

should “uphold a decision of less than ideal clarity if the agency’s path may reasonably be 

discerned.” Bowman Transp. Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 286 (1974). 

The Court starts with the assumption that the agency action is valid. Envtl. Def. Fund, 

Inc. v. Costle, 657 F.2d 275, 283 (D.C. Cir. 1981). In cases involving scientific or technical 

decisions within the agency’s area of expertise, an informed agency decision is entitled to a 

“high level of deference.” Serono Labs., Inc. v. Shalala, 158 F.3d 1313, 1320 (D.C. Cir. 1998). 
23

This is particularly true when the Court reviews the Board’s actions with respect to TILA. 

“Deference is especially appropriate in the process of interpreting the Truth and Lending Act and 

Regulation Z. Unless demonstrably irrational, [the Board’s] opinions construing the Act or 

Regulation should be dispositive . . . .” Milhollin, 444 U.S. at 565. “Thus, while not abdicating 

their ultimate judicial responsibility to determine the law, judges ought to refrain from

substituting their own interstitial lawmaking for that of the Federal Reserve, so long as the 

latter’s lawmaking is not irrational.” Id. at 568 (internal citations omitted). 

As discussed above, the Board promulgated its Rule pursuant to 15 U.S.C. § 1639(l)(2), 

which authorizes the Board to proscribe practices in connection with mortgage loans that are 

found to be “unfair” or “deceptive.” Plaintiffs argue that the Board’s Rule is arbitrary and 

capricious because the Board failed to substantiate its claim that the prohibited loan originator 

compensation practices are “unfair” or “deceptive” under Section 1639(l)(2). The Court does not 

believe the plaintiffs have shown a likelihood of prevailing on the merits of this challenge to the 

Rule. 

TILA and HOEPA do not set forth a standard to determine what constitutes “unfair” or 

“deceptive” under Section 1639(l)(2). Rather, the Board must demonstrate that the practices it 

prohibits fall within the meaning of those terms as interpreted by Section 5 of the FTC Act. 

Board Notice of Final Rule, 75 Fed. Reg. 58,513 (“. . . in determining whether a practice in 

connection with mortgage loans is unfair or deceptive, the Board [looks] to the standards 

employed for interpreting state unfair and deceptive trade practices statutes and the Federal 

Trade Commission Act (FTC Act), Section 5(a), 15 U.S.C. § 45(a).”); see also 15 U.S.C. § 

45(a); NAIHP Mot. Prelim. Inj., Ex. 2, Board of Governors of the Federal Reserve System, 
24

Unfair or Deceptive Acts or Practices by State-Chartered Banks (Mar. 11, 2004)(elaborating on 

Board’s interpretation of Section 5 of the FTC Act) (hereinafter “Board FTC Statement”). 

The Board justifies the Rule under the “unfairness” prong of its authority. Under the FTC 

Act, a practice is unfair if it “causes or is likely to cause substantial injury to consumers which is 

not reasonably avoidable by consumers themselves and not outweighed by countervailing 

benefits to consumers or to competition.” Board FTC Statement, at 2; see also 15 U.S.C. § 45(n). 

An injury may be considered substantial even if it “causes a small amount of harm to a large 

number of people.” Board FTC Statement, at 3; see also Board Notice of Final Rule, 75 Fed. 

Reg. 58,513. A practice is not unfair, however, if consumers can “reasonably avoid” injury. 

Board FTC Statement, at 3. “Consumers cannot reasonably avoid injury from an act or practice 

if it interferes with their ability to effectively make decisions.” Id. That said, to be “unfair”

within the meaning of the FTC Act, “the practice must be injurious in its net effects” and not 

“outweighed by any offsetting consumer or competitive benefits.” Id.

To assess whether the Board failed to adequately justify its decision to implement the 

Rule, the Court reviews each of the three challenged regulations prohibiting types of loan 

originator compensation and evaluates the Board’s rationale for each. 

ii. § 226.36(d)(1) – Prohibition on Loan Originator 

Compensation Based on the Terms of a Mortgage Loan 

Transaction

NAIHP challenges proposed regulation 226.36(d)(1), which prohibits “any person from 

compensating a loan originator, directly or indirectly, based on the terms or conditions of a loan 

transaction secured by real property or a dwelling.” Board Notice of Final Rule, 75 Fed. Reg. 58, 

516, 58,534. The Board explains that this provision is aimed at preventing consumers from 

unsuspectingly agreeing to loans with higher interests rates and less favorable terms, an injury 
25

that consumers cannot reasonably avoid given current industry practices. Id. at 58,514-15. The 

record currently before the Court supports this reasoning, and adequately demonstrates that the 

practice the Board is seeking to prohibit through § 226.36(d)(1) could be viewed as unfair. The 

Court therefore concludes that NAIHP does not have a likelihood of success on the merits of its

challenge to this provision of the Rule. 

In its commentary regarding § 226.36(d)(1), the Board explains its view that the specific 

prohibition on loan originator compensation based on the terms or conditions of the transaction,

would help correct “misaligned incentives that currently exist in the mortgage marketplace 

between loan originators and consumers.” Id. at 58,514. Clearly, a number of public and private 

stakeholders concur in this assessment, since the Board notes that “consumer groups, state and 

Federal regulators, state attorneys general, and several members of Congress strongly supported 

the proposed prohibition.” Id. 

Based upon information received at hearings, in comments, from studies, and its own 

analysis, the Board stated that the current compensation structure in which a mortgage broker’s 

payment is tied to loan terms, creates “an incentive [for loan originators] to provide consumers 

loans with higher interest rates or other less favorable terms.” Id. at 58,515. This incentive is 

particularly strong when mortgage brokers receive yield spread premiums (YSPs) for providing 

consumers with loans above a lender’s “par rate.”12 The Board concluded that the YSP 

 12 As noted earlier in this opinion, consumers may opt to purchase loans above a lender’s par rate, with YSPs, when 

they are unable to pay the upfront cost associated with a loan, in which case these upfront costs are spread over the 

course of the loan in return for a higher interest rate on the overall transaction. The Rule does not affect the ability of 

consumers to choose this option as a means of reducing the upfront costs of a home mortgage. See Board Notice of 

Final Rule, 75 Fed. Reg. 58,516 (“. . . the final rule still afford creditors flexibility to structure loan pricing to 

preserve the potential consumer benefit of compensating an originator, or funding third-party closing costs, through 

the interest rate.”). When a mortgage broker or loan originator, however, controls the YSP that applies to a particular 

transaction, and uses the YSP, in whole or part, as compensation for the broker’s services, consumers may be 

unaware of the amount of the YSP attributable to the broker’s compensation. The Rule addresses only this use of a 

YSP. See Board Notice of Proposed Rule, 74 Fed. Reg. 43,282 (“. . .the Board is proposing a rule that prohibits any 

person from basing a loan originator’s compensation on the loan’s rate or terms but still affords creditors the 
26

compensation practice “present[s] a significant risk of economic injury to consumers” who 

“typically are not aware of the practice or do not understand its implications.” Id. Consumers

lack knowledge and understanding regarding how YSPs operate to provide compensation to 

brokers and loan originators, and are thus “unable to engage in effective negotiation. Instead they 

are more likely to rely on the loan originator’s advice, and, as a result, may receive a higher rate 

or other unfavorable terms solely because of greater originator compensation.” Id. Under the 

FTC Act, an injury is considered substantial even if it “causes a small amount of harm to a large 

number of people.” Board FTC Statement, at 3. The Board has adequately reasoned that 

consumers face such harm when they “incur[] greater costs for mortgage credit than they would 

otherwise be required to pay.” Board Notice of Final Rule, 75 Fed. Reg. 58,514. 

The Board has further adequately reasoned that this injury is not reasonably avoidable. 

Even though mortgage brokers operate on behalf of neither the consumer nor the creditor, 

“reasonable consumers [may] erroneously [] believe that loan originators are working on their 

behalf, and are under a legal or ethical obligation to help them obtain the most favorable loan 

terms and conditions. Consumers may regard loan originators as ‘trusted advisors’ or ‘hired 

experts,’ and consequently rely on originators’ advice.” Id.; see also id. at 58,511 (“Several 

commenters in connection with the 2006 hearings suggested that mortgage broker marketing 

cultivates an image of the broker as a ‘trusted advisor’ to the consumer.”). Due to this “trusted 

advisor” perception of loan originators; the lack of transparency in creditor payments to loan 

originators, “especially in the case of mortgage brokers;” the lack of consumers’ understanding 

of YSP and their consequent inability to “engage in effective negotiation,” the Board found that 

consumers suffered a significant risk of economic injury from YSPs used to compensate loan 

 

flexibility to structure loan pricing to preserve the potential consumer benefit of compensating an originator through 

the interest rate.”). 
27

originators based on a transaction’s terms and conditions. Id. at 58,515. Moreover, based on 

consumer testing the Board concluded that relying on increased disclosures would not be 

sufficient to protect consumers from the “conflict of interest” and incentive that loan originators 

have to “provide consumers loans with higher interest rates or other less favorable terms” in 

order to increase their commissions based upon terms other than the amount of the loan. Id. at

58,514-15 (disclosure insufficient for YSPs, which “are complex and may be counter-intuitive 

even to well-informed consumers, . . . to overcome the gap in consumer comprehension 

regarding this critical aspect of the transaction.”). 

The Board acknowledged that YSPs may be beneficial to those consumers who use this 

mechanism to reduce the upfront closing costs, including originator compensation, and therefore 

“the final rule still afford creditors the flexibility to structure loan pricing to preserve the 

potential consumer benefit of compensating an originator, or funding third-party closing costs, 

through the interest rate.” Id. at 58,516. The Rule, however, prohibits any compensation paid to 

the loan originator from being based upon any terms or conditions of the loan other than the 

credit extended. The record before the Court supports the Board’s reasoning, and this reasoning 

is not arbitrary and capricious. The Court therefore concludes that the NAIHP does not have a 

likelihood of success in its challenge of this provision of the Rule.

iii. Proposed § 226.36(d)(2) – Anti-Split Compensation 

Both plaintiffs challenge proposed regulation § 226.36(d)(2), which provides that, if a 

loan originator is compensated directly by the consumer for a transaction secured by real 

property or a dwelling, no other person may pay any compensation to the originator for that 

transaction. The Board contends that proscribing loan originators from receiving payments from 

other industry actors, even by their own employer on a commission basis, further eliminates a 
28

loan originator’s incentive to direct consumers toward unfavorable loans. Board Notice of Final 

Rule, 75 Fed. Reg. 58,524-25. Based upon the current record, the Board had an adequate basis 

in promulgating this regulation and in concluding that the split-compensation model for loan 

originators is an unfair practice warranting the prohibition. The plaintiffs therefore do not 

ultimately have a likelihood of success in their argument that the Board’s decision to prohibit 

this practice is arbitrary and capricious.

Under 12 CFR § 226.36(d)(2), a “loan originator” is not allowed to be compensated by 

any other person if he or she receives compensation directly from a consumer. The proposed 

rule defines “loan originator” as “any person who for compensation or other monetary gain 

arranges, negotiates, or otherwise obtains an extension of consumer credit for another person.” 

Id. at 58,534-35. This definition is not limited to natural persons and, thus, necessarily includes 

mortgage brokerage companies as well as the brokerages’ individual employee-loan officers. 

Given the potentially broad reach of a literal reading of § 226.36(d)(2), the Board clarified that 

“compensation paid by a mortgage broker company to an employee in the form of a salary or 

hourly wage, which is not tied specifically to a single transaction, does not violate § 

226.36(d)(2).” Board Notice of Proposed Rule, 74 Fed. Reg. 43,409. The effect of § 

226.36(d)(2) is that it prohibits mortgage brokers from paying their own employee-loan officers 

a commission if the broker or employee “receives compensation directly from a consumer.” 

Although the definition of “loan originator” also applies to a creditor’s employees, it does not 

generally apply to the creditor itself. Board Notice of Final Rule, 75 Fed. Reg. 58,533-34. 

Creditors are therefore free to pay their employees, who also originate loans, on a commission 

basis as long as the commission is not based on the terms of the loan, as prohibited by § 

226.36(d)(1).
29

To evaluate whether the Board was authorized to promulgate 12 CFR § 226.36(d)(2) the 

Court must consider whether the Rule regulates an unfair practice within the understanding of 

the FTC Act and is aimed to prevent a substantial injury. The record before the Court indicates 

that the regulation was promulgated to prevent loan originators from directing consumers toward 

unfavorable loans for the loan originator’s personal benefit. Board’s Notice of Proposed Rule, 74 

Fed. Reg. 43,282. Proposed § 226.36(d)(2) would purportedly prevent this injury “because the 

loan originator could not receive compensation based on the interest rate or other terms, the 

originator would have no incentive to alter the terms made available by the creditor to deliver a 

more expensive loan.” Id. The Board reasoned that without prohibiting loan originators from 

receiving split-compensation for a specific loan transaction, loan originators would still be 

inclined, even with the other prohibitions, to direct consumers to unfavorable loans because they 

could receive increased compensation from other sources, including their employer, for doing 

so.13 Without subsection (d)(2), the Board was concerned that “loan originators [could] evade the 

prohibition on loan originator compensation based on the terms and conditions of a transaction [§ 

226.36(d)(1)].” Board Notice of Final Rule, 75 Fed. Reg. 58,525 (further stating that “[a]llowing 

the originator to receive compensation directly from the consumer while also accepting payment 

from the creditor in the form of a yield spread premium would enable the originator to evade the 

prohibition in § 226.36(d)(1).”). As discussed above, when consumers are directed toward 

 13 At oral argument, the Board provided additional detail that this rule would eliminate a loan originator’s incentive 

to “steer” a consumer to a “consumer pay” transaction, in which the more experienced broker would be able to 

negotiate a larger broker payment on which the loan officer could obtain a larger commission, since, under this Rule,

the broker is barred from paying any commission to the loan officer on a “consumer pay” transaction. Transcript of 

Oral Argument at 56-57, NAIHP v. Bd. of Governors of the Federal Reserve Sys., No. 11-cv-489, NAMB v. Bd. of 

Governors of the Fed. Reserve Sys., No. 11-cv-506 (Mar. 29, 2011)(“ . . . the reason behind the portion of the reg 

that NAMB is concerned with has to do with steering consumers between the consumer-pay and the creditor-pay 

transaction. Because in the consumer-pay transaction, the mortgage brokerage company is able to negotiate anything 

it can with the consumer, and it's not limited by the (d)(1) provisions. . . . So the only thing that keeps the mortgage 

broker employee from steering towards consumer-pay and away from any creditor-pay transaction is requiring that 

the mortgage broker employees can’t get a piece of what the mortgage broker gets on that transaction.”).
30

unfavorable loan transactions, the harm constitutes a substantial injury under the terms of the 

FTC Act. The Court must now inquire whether this injury is reasonably avoidable. 

The Board believes that “consumers generally are not aware of creditor payments to

originators and may reasonably believe that when they pay a loan originator directly, that amount 

is the only compensation the loan originator will receive.” Id. Even when consumers are aware 

that a loan originator is receiving compensation from other sources, the Board contends that “the 

consumer could reasonably expect that making a direct payment to an originator would reduce or 

eliminate the need for the creditor to fund the originator’s compensation through the consumer’s 

interest rate. Because yield spread premiums are not transparent to consumers, however, 

consumers cannot effectively negotiate the originator’s compensation.” Id. Thus, the Board 

reasons that even with disclosure of a loan originator’s alternate sources of compensation, the 

consumer’s injury is not reasonably avoidable. 

The Court finds that the overall reasoning of § 226.36(d)(2) is supported in the record 

before the Court, which indicates that the anti-split compensation provision is directed toward 

preventing substantial injury that is not reasonably avoidable. The Court must address, however, 

NAMB’s contention that this Rule is nonetheless arbitrary and capricious because of the Board’s 

determination that § 226.36(d)(2) should also prohibit mortgage brokers from compensating their 

employees on a commission basis when the mortgage broker is compensated directly by a 

consumer. According to NAMB, the bar on commissions “micromanages how a mortgage 

brokerage company can distribute[] its portion of the single origination fee it receives from a 

consumer to its own loan officer.” NAMB Resp. to Amicus Curiae Br., ECF No. 27, at 5 

(emphasis in original). NAMB additionally argues that this prohibition will effectively destroy 

the business of the independent mortgage broker, who can no longer employ loan officers on a 
31

commission-basis, and must compete with banks that, as creditors, are exempt from this part of 

the Rule and permitted to continue paying loan officers on a commission-basis. According to 

NAMB, loan officers are leaving independent mortgage companies in droves in order to continue 

being paid on a commission basis with banks or other creditors. NAMB Mem., at 10 (“Loan 

officers are already being solicited by banks who are telling them that all mortgage brokers will 

be out of business after April 1, 2011 because they have no economically viable business model 

to turn to. The exodus of these loan officers, who are the life-blood of the industry . . . , [is]

causing and will continue to cause severe and irreparable harm to mortgage brokers.”).14 NAMB 

further states that this apparent inequity in treatment between independent mortgage brokers and 

“creditors,” including banks, will result in less competition and consumers being provided fewer 

financing choices. Id. 

The Board, however, explains that § 226.36(d)(2)’s associated bar on mortgage broker 

commissions in consumer pay transactions is necessary to prevent mortgage brokerages from 

evading the prohibitions of § 226.36(d)(1) by structuring commission payments that, while not 

based on the terms of a loan, nonetheless provide incentives for their employees to steer 

consumers toward particular loans. The reason why creditors are exempt from § 226.36(d)(2), 

according to the Board, is “simple: because all transactions are subject to the Rule’s restrictions 

on ‘creditor-pay’ transactions, any compensation paid to the creditor from any source is limited 

by this Rule,” i.e., § 226.36(d)(2) prevents unfair practices when a consumer pays a mortgage 

broker directly, and a creditor’s employee never has the option of receiving direct compensation 

from a consumer. Thus, proposed regulation § 226.36(d)(1), which prevents any compensation 

 14 The Board acknowledges that another federal agency, the Small Business Administration (SBA) had cautioned 

that this part of the proposed rule “would disproportionately affect small brokerage firms and create an unlevel 

playing field...[L]arge brokerage firms would be ‘creditors’ who are not subject to the compensation restrictions 

because they can and would fund loans out of their own resources, ...[T]he proposal would force small brokerage 

firms who are unable to fund loans out of their own resources out of the marketplace.” Board Notice of Final Rule, 

75 Fed. Reg. 58,517. 
32

model based on the terms of the transaction, by itself, ensures that creditors’ employees have no 

direct monetary incentive to direct consumers toward loans with higher rates or more adverse 

terms. Defs’ Mem., at 36-37. The same is not true, however, for mortgage brokers. Although § 

226.36(d)(1) prevents mortgage brokers from receiving compensation tied to the terms of a loan, 

it does not prevent them or their employees from creating incentives for a loan officer to guide 

consumers toward certain loans and or to certain lenders. The anti-split compensation provision, 

§ 226.36(d)(2), therefore forces loan officers to abandon all other sources of compensation tied 

to a particular transaction, including commission from their employers, when a consumer 

compensates a broker and assumes that the broker will guard his or her interests. 

Regarding the Rule’s likely adverse effect on small mortgage brokers, the Board 

concluded that “the benefits of the prohibition to consumers outweigh the associated compliance 

costs.” Id. at 58,518. In reaching this conclusion, the Board considered studies about the benefits 

of independent mortgage brokers to consumer choice and costs, but found them “not 

dispositive.” It also indicated its belief that the Rule would not “require small brokerage firms to 

go out of business,” since creditors rely on them, and its optimistic view that “new business 

models” will allow them to compete.15 Id. at 58,517-18. 

 15 The Board contends that the anti-split compensation provision does not bar mortgage brokers from structuring 

commission based on loan or transaction volume. See Transcript of Oral Argument at 64-65, NAIHP v. Bd. of 

Governors of the Federal Reserve Sys., No. 11-cv-489, NAMB v. Bd. of Governors of the Fed. Reserve Sys., No. 

11-cv-506 (Mar. 29, 2011). In their briefs and at oral argument, plaintiffs argued that the Real Estate Settlement 

Procedures Act (“RESPA”), 12 U.S.C. §§ 2601 et seq, prevents mortgage brokers from compensating their 

employees with commissions based on loan volume. See id. at 72-73. To support this position, NAIHP’s counsel 

provided the Court with a RESPA compliance guide published by the U.S. Department of Housing and Urban 

Development in response to the Board’s Rule, which he argued supported plaintiffs’ position. U.S. DEP’T OF HOUS.

AND URBAN DEV., RESPA ROUNDUP: COMPLIANCE GUIDE FOR RESPA AS IT APPLIES TO THE FEDERAL RESERVE 

BOARD’S MLO COMPENSATION RULES PUBLISHED ON SEPTEMBER 24, 2010 (MAR. 2011). This compliance guide, 

however, states that “[i]f a lender is basing its compensation to mortgage brokers on loan volume” a RESPA 

violation may exist under 12 U.S.C. § 2607. Id. at 7 (emphasis added). The compliance guide does not suggest that 

RESPA prevents mortgage brokers from compensating its employees based on loan volume. The Board maintains 

that RESPA does not prevent mortgage brokers from paying its employees commissions based on loan volume; and 

the Court similarly has not been informed of a specific RESPA provision prohibiting this practice.
33

The Court is required to defer to the Board’s considered judgment and rulemaking 

authority. The Board provided a rational explanation for proposing § 226.36(d)(2), sufficiently 

explained its reasoning in barring mortgage brokers from receiving commissions in consumer 

pay transactions, and has also explained the creditors’ exemption from this prohibition. 

Proposed regulation § 226.36(d)(2) may have a substantial adverse effect on the mortgage broker 

industry, but the record before the Court does not indicate that the Rule is illogical or 

unsupported. Plaintiffs therefore do not have a high likelihood of success when they ultimately 

argue that this provision is arbitrary and capricious. 

iv. Proposed Regulation § 226.36(e) – Anti-Steering and Safe Harbor

NAIHP also challenges proposed regulation § 226.36(e), which prohibits loan originators 

from directing or “steering” consumers to loans based on the fact that the originator will receive 

additional compensation, when that loan may not be in the consumer’s interest. The Board 

explains that this rule is promulgated to “prevent circumvention of the prohibition in § 

226.36(d)(1), which could occur if the loan originator steered the consumer to a loan with a 

higher interest rate or higher points to increase the originator’s compensation.” Id. at 58,527; id 

at 58,528 (the anti-steering rule prevents loan originators from directing consumers to “a single 

creditor that offers greater compensation to the originator, while ignoring possible transactions 

having lower interest rates that are available from other creditors.”). This “anti-steering” 

regulation contains safe-harbor provisions, §§ 226.36(e)(2) and (3), so that loan originators 

would be deemed to comply with the Rule if, under specified conditions, the consumer is 

presented with a choice of loan options that include (1) the lowest interest rate, (2) the second 

lowest interest rate, and (3) the lowest total dollar amount for origination points or fees and 

discount points. Id. Given these safe-harbors, proposed § 226.36(e) effectively operates more as 
34

a requirement that loan originators disclose to the consumer the most objectively favorable 

financing products. 

In promulgating this rule, the Board reasoned that the anti-steering rule was “necessary to 

prevent the harm that results if loan originators steer consumers to a particular transaction based 

on the amount of compensation paid to the originator when that loan is not in the consumer's 

interest.” Id. at 58,528. The Board concluded that consumers cannot reasonably avoid being 

misled by mortgage brokers given the incentives for steering consumers toward loans that 

provide a personal benefit to the loan originator. Id. Consumers “generally are unaware of yield 

spread premiums and are unable to appreciate the incentives such compensation creates 

regarding the loan options a loan originator may choose to present to consumers.” Id. Due to 

consumers’ lack of experience in this industry and with mortgage compensation practices, 

“consumers are more likely to rely on a loan originator’s advice regarding which loan transaction 

will be in their interest.” Id. Nonetheless, the Board reasons that consumers could avoid injury

when loan originators disclose the most objectively favorable financial products, and thus fall 

into § 226.36(e)’s safe harbor. The Board’s reasoning in regards to proposed regulation § 

226.36(e) is rational and supported in the record before the Court. The Court therefore finds that 

plaintiff NAIHP does not have a high likelihood of success when it challenges this provision on 

the grounds that the promulgated rule is arbitrary and capricious. 

Based on the current record, the Court believes that proposed regulations §§ 226.36(d)

and (e) are rational and directed toward preventing unfair practices, within the meaning of that 

term in Section 5 of the FTC Act. The Congress delegated the Board broad authority under TILA 

and HOEPA. As the Supreme Court noted, a Court that disregards the Board’s views with 

regard to TILA “embarks on a voyage without a compass” because proper regulation of the 
35

lending industry “is an empirical process that entails investigation into consumer psychology and 

that presupposes broad experience with credit practices. Administrative agencies are simply 

better suited than courts to engage in such a process.” Milhollin, 444 U.S. at 568-59.

c. Plaintiffs Have Not Demonstrated the Board’s Failure to Comply with 

RFA and SBREFA

Pursuant to the Regulatory Flexibility Act (“RFA”), Pub.L. No. 96-354, 94 Stat. 1165-70 

(1980), codified at 5 U.S.C. §§ 601-612, as amended by the Small Business Regulatory 

Enforcement Fairness Act of 1996 (“SBREFA”), Pub.L. No. 104-121, 110 Stat. 864 (1996), 

agencies are required to prepare an initial regulatory flexibility analysis (“IRFA”) when they 

propose a rule that will have an impact on “small entities,” 5 U.S.C. § 603. In addition to an 

IRFA, when an agency promulgates a final rule, it must perform a Final Regulatory Flexibility 

Analysis (“FRFA”). This analysis is required to include: 

(1) a succinct statement of the need for, and objectives of, the rule;

(2) a summary of the significant issues raised by the public comments in response to the 

initial regulatory flexibility analysis, a summary of the assessment of the agency of such 

issues, and a statement of any changes made in the proposed rule as a result of such 

comments;

(3) a description of and an estimate of the number of small entities to which the rule will 

apply or an explanation of why no such estimate is available;

(4) a description of the projected reporting, recordkeeping and other compliance 

requirements of the rule, including an estimate of the classes of small entities which will 

be subject to the requirement and the type of professional skills necessary for preparation 

of the report or record; and

(5) a description of the steps the agency has taken to minimize the significant economic 

impact on small entities consistent with the stated objectives of applicable statutes,

including a statement of the factual, policy, and legal reasons for selecting the alternative 

adopted in the final rule and why each one of the other significant alternatives to the rule 

considered by the agency which affect the impact on small entities was rejected.
36

5 U.S.C. § 604(a) (prior to Sept. 27, 2010 amendment).

16 RFA does not “alter in any manner 

standards otherwise applicable by law to agency action.” 5 U.S.C. § 606. “[T]he Act’s 

requirements are ‘purely procedural’ [and] though it directs agencies to state, summarize, and 

describe, the Act in and of itself imposes no substantive constraint on agency decisionmaking.” 

Nat’l Tel. Co-Op. Ass’n v. FCC, 563 F.3d 536, 540 (D.C. Cir. 2009) (internal quotations 

omitted). Thus, RFA only requires agencies to “publish analyses that address certain legally 

delineated topics [and when an agency] address[es] all of the legally mandated subject areas, it 

complies with the Act.” Id. In addressing these topics, the agency “needn’t present its FRFA in 

any ‘particular mode of presentation,’ as long as the FRFA ‘compiles a meaningful, easily 

understood analysis that covers each requisite component dictated by the statute and makes the 

end product-whatever form it reasonably may take-readily available to the public.’” Nat’l Ass’n 

of Psychiatric Health Systems v. Shalala, 120 F. Supp. 2d 33, 42 (D.D.C. 2000) (quoting 

Associated Fisheries of Maine, Inc. v. Daley, 127 F.3d 104, 115 (1st Cir.1997)). If an agency 

fails to comply with RFA, however, the Court may remand the rule to the agency. 5 U.S.C. § 

611(a)(4)(A); see also Small Refiner Lead Phase-Down Task Force v. EPA, 705 F.2d 506, 538 

(D.C. Cir. 1983) (failure to comply with the RFA “may be, but does not have to be, grounds for 

overturning a rule.”). Additionally, when challenging an agency’s obligations under Section 604, 

parties may raise the “related but distinct claim” that an agency did not reasonably address the 

Rule’s impact on small businesses. Nat’l Tel. Co-Op. Ass’n,563 F.3d at 540. Such challenges 

require the Court to evaluate the agency’s FRFA under the arbitrary and capricious standard of 

review. Id. at 540; see also 5 U.S.C. § 611(a)(2); Nat’l Coal. For Marine Conservation v. Evans, 

 16 On September 27, 2010, after the Board issued its notice of final rulemaking and associated FRFA, Congress 

amended 5 U.S.C. § 604(a), Pub.L. 111-240, § 1601, 124 Stat. 2551 (Sept. 27, 2010). The amended § 604(a) now 

provides for additional detail in the FRFA.
37

231 F. Supp. 2d 119, 142 (D.D.C. 2002) (“The standard of review is the same as that under the 

APA, in that a court reviews the FRFA for arbitrary and capricious action.”). 

Plaintiffs argue that the Board failed to comply with RFA by not properly addressing the 

Rule’s impact on small businesses. Specifically, NAMB argues that the Board failed to provide 

a statement of the need for or objectives of the rule; failed to meaningfully analyze the Rule’s 

impact on small businesses; failed to respond to public comments; and failed to analyze 

alternatives to the proposed regulation. NAMB Mem., 28-34. The Court disagrees with each of 

these charges.

In its notice of final rulemaking, the Board supplied a complete and reasoned FRFA. 

Board Notice of Final Rule, 75 Fed. Reg. 58,530-33. The FRFA relayed that the Board is 

promulgating the Rule to “address problems that have been observed in the mortgage market” in 

order “to prohibit unfair and deceptive acts and practices in connection with mortgage loans.” Id. 

at 58,531. Further, the Board recognized that the regulation would have a “significant economic 

impact on a substantial number of small entities,” but the “precise compliance costs would be 

difficult to ascertain” because these costs would depend on “unknown factors” specific to each 

small business. Id. Nevertheless, the Board stated that “some small entities will be required, 

among other things, to alter certain business practices, develop new business models, re-train 

staff, and reprogram operational systems . . . .” Id. at 58,533. 

Despite NAMB’s assertion to the contrary, the FRFA discussed public comments and 

proposed alternatives to the regulations. See id. at 58,531-32. Specifically, the FRFA discussed a 

proposal to further increase disclosure for mortgage brokers and another regarding exemptions 

for creditors. Id. at 58,532. The Board stated why both proposals would not further the aims of 

the regulations, and would in fact undercut the aim of protecting consumers. Id. Although 
38

NAMB argues that the Board did not specifically address proposed regulation § 226.36(d)(2), the 

portion of the Rule that NAMB challenges, the FRFA addressed the effects of all of the Rule’s 

prohibitions regarding loan originator compensation collectively, and this satisfies the Board’s 

obligations under 5 U.S.C. § 604(a).17

The Board supplied a FRFA with its notice of final rulemaking that met the requirements 

of the RFA and the SBREFA. The plaintiffs’ argument that the Rule should be remanded 

because the Board failed to supply a proper FRFA is therefore unavailing. 

The record currently before the Court indicates that the plaintiffs have not demonstrated a 

likelihood of success on the merits. Congress granted the Board broad authority in TILA and 

HOEPA, and the Board relied on TILA’s Section 1639(l)(2) when it promulgated the Final Rule. 

Furthermore, the record before the Court indicates that the Board’s actions and intent in 

promulgating the Rule are supported in the record and have a reasonable basis. Although the 

plaintiffs have not demonstrated a likelihood of success on the merits, the Court nonetheless 

evaluates their claims of irreparable harm. 

3. Irreparable Harm

The D.C. Circuit “has set a high standard for irreparable injury.” Chaplaincy of Full 

Gospel Churches v. England, 454 F.3d 290, 297 (D.C. Cir. 2006). The injury “must be both 

certain and great; it must be actual and not theoretical.” Id (quoting Wisc. Gas Co. v. FERC, 758 

F.2d 669, 674 (D.C. Cir. 1985) (per curiam)). This requires the party moving for injunctive 

relief to demonstrate that “[t]he injury complained of is of such imminence that there is a ‘clear 

 17 Section 604(a) states that an agency is required to prepare a FRFA for the agency’s “final rule,” and Section 

604(a)’s subsections refer to the agency’s obligation to evaluate “the rule,” § 604(a)(1), (a)(4), (a)(5); “the proposed 

rule,” § 604(a)(2)-(3); and “the final rule,” § 604(a)(6). The text of the statute does not support the contention that 

the Board was required to analyze each proposed subpart of the regulation individually.
39

and present’ need for equitable relief to prevent irreparable harm.” Id. (citations omitted). In 

addition, “the injury must be beyond remediation.” Id. 

Under this Circuit’s irreparable harm standard, “harm that is ‘merely economic’ in 

character is not sufficiently grave.” Coal. For Common Sense In Gov’t Procurement v. United 

States, 576 F. Supp. 2d. 162, 168 (D.D.C. 2008); see also Wisconsin Gas, 758 F.2d at 674. For 

potential economic loss to constitute a showing of irreparable harm, “a plaintiff must establish 

that the economic harm is so severe as to ‘cause extreme hardship to the business’ or threaten its 

very existence.” Coal. For Common Sense In Gov’t Procurement, 576 F. Supp. 2d. at 168

(quoting Gulf Oil Corp. v. Dep’t of Energy, 514 F.Supp. 1019, 1025 (D.D.C.1981)); see also 

Wisconsin Gas, 758 F.2d at 674. “Recoverable monetary loss may constitute irreparable harm 

only where the loss threatens the very existence of the movant’s business.” Wisconsin Gas, 758 

F.2d at 674.

Economic harm may qualify as irreparable, however, “where a plaintiff’s alleged 

damages are unrecoverable.” Sterling Commercial Credit - Michigan, LLC v. Phoenix Indus. I, 

LLC, No. 10-cv-2332, 2011 WL 263674, at *7 (D.D.C. Jan. 28, 2011) (quoting Clarke v. Office 

of Fed. Hous. Enter., 355 F. Supp. 2d 56, 65 (D.D.C.2004)); see Bracco Diagnostics, Inc. v. 

Shalala, 963 F. Supp. 20, 29 (D.D.C.1997). The “mere fact that economic losses may be 

unrecoverable does not, in and of itself, compel a finding of irreparable harm.” Nat’l Mining 

Ass’n v. Jackson, No. 10-cv-1220, 2011 U.S. Dist. LEXIS 3710, at *46 (D.D.C. Jan. 14, 2011). 

Rather, the ability of a plaintiff to recover economic losses is “but one factor the court must 

consider” and these losses must nonetheless be certain and imminent. Id.
40

Plaintiffs NAMB and NAIHP both contend that without a preliminary injunction, the 

Rule will cause their members irreparable harm. However, they proffer different grounds to 

establish a showing of irreparable harm. The Court addresses each individually. 

a. NAIHP’s Showing of Irreparable Harm

NAIHP argues that its members will be irreparably harmed without an injunction in two

respects: First, NAIHP contends that the Board’s Rule conflicts with Department of Housing and 

Urban Development (“HUD”) regulations prescribed under the Real Estate Settlement 

Procedures Act (“RESPA”), 12 U.S.C. §§ 2601 et seq, which requires loan originators to pay a 

consumer in the event that the terms of a consumer’s loan exceeds certain defined tolerances. 

NAIHP argues that due to the alleged conflict between the two regulations, the Board’s rule 

“places the loan originator in a position of having to choose which rule to violate” and “places 

every mortgage broker and originator in jeopardy.” Savitt Aff., ¶¶ 16-17. NAIHP’s second 

contention is that the Board failed to properly consider the Rule’s effect on small businesses, 

which the Board itself acknowledges could have “a significant economic impact on a substantial 

number of small entities.” Board Notice of Final Rule, 75 Fed. Reg. 58,531. NAIHP’s affiant 

indicates that he will face unrecoverable costs complying with the Board’s regulation, due to its 

complexity and lack of Board guidance, as well as unrecoverable loss in revenue for his 

business. 

Both grounds NAIHP relies upon to demonstrate irreparable injury are insufficient to 

establish a need for extraordinary injunctive relief. While harmonization of requirements under 

RESPA and the Board’s Rule may be a challenge, the asserted injury is speculative. In its brief 

and during oral argument, the Board denied that there is any conflict between RESPA and the 

Rule. Defs.’ Opp. Pls.’ Mot. Prelim. Inj., at 18-19. NAIHP’s affiant does not assert that due to 
41

the conflict in the Rules he will certainly sustain irreparable harm, but rather that “with no clear 

instructions from the Board, small entities will surely sustain unaffordable and needless legal 

expenses.” Savitt Aff., ¶ 17 (emphasis added). This alleged injury, which may not even occur if 

the Board or HUD decides to provide additional guidance, is speculative and does not rise to the 

level of injury that constitutes irreparable harm in this Circuit. 

Similarly, NAIHP’s argument that small businesses will be adversely affected, while 

compelling, is not properly supported. NAIHP provides one affidavit to describe the Rule’s 

affect on small businesses and this affiant does not inform the Court that his business will be 

irreparably destroyed by the Board’s rule, but rather that “[a]s a small business owner, [he is] 

concerned that the lack of clarity on such a difficult rule to understand and made worse by 

various interpretations from wholesale lenders, will create an environment of noncompliance.” 

Id. at ¶ 13. Affiant does state that the Rule will “destroy various business relationships [he] has 

developed over the years,” id. at ¶ 20, but, again, he does not inform the Court that the Rule 

threatens the very existence of his business. See Wisconsin Gas, 758 F.2d at 674 (“Bare

allegations of what is likely to occur are of no value since the court must decide whether the 

harm will in fact occur.”). Rather, NAIHP argues that its members face irreparable harm because 

they face “unrecoverable and massive costs associated with attempting to comply [with the 

Rule.].” NAIHP Mem., at 22. Other than conclusory allegations, however, the plaintiff has 

failed to support this contention. NAIHP’s affiant states that because of the Rule, he will be 

unable to offer discounts through the “Community Heroes Program,” which will “destroy 

various business relationships,” Savitt Aff., ¶ 20, and will not be able to participate in the “West 

Virginia Housing Development Fund,” which will represents a “substantial amount of [his]

business.” Id. at ¶¶ 21-22. He does not provide specific details regarding the extent to which his
42

business will suffer or even assert that this unrecoverable monetary harm will be severe. See 

Sterling Commercial Credit, 2011 WL 263674 at *7 (“plaintiff has provided no information as to 

what effect the purported economic harm will have on its business. Thus, plaintiff has provided 

no reason for this Court to depart from the established rule “that economic harm does not 

constitute irreparable injury.”). Although NAIHP’s affiant states that NAIHP members face the 

“very real prospect of business being destroyed for lack of clarity” in the Rule, Savitt Aff., ¶ 26,

“‘[b]are allegations of what is likely to occur,’ couched . . . in mere possibilities [] ‘are of no 

value since the court must decide whether the harm will in fact occur.’” Sterling Commercial 

Credit, 2011 WL 263674 at *7 (quoting Wisconsin Gas, 758 F.2d at 674). 

Unrecoverable economic harm may constitute irreparable injury, but plaintiff has failed 

to adequately describe and quantify the level of harm its members face. The Court must therefore 

rule that the NAIHP has failed to demonstrate that its members will be irreparably harmed by the 

Board’s implementation of the Rule.

b. NAMB’s Showing of Irreparable Harm

In support of its motion for injunctive relief, NAMB argues that § 226.36(d)(2) 

effectively precludes mortgage brokerages from paying their loan originators on a commissionbasis, a compensation model used in the industry for decades and the “standard method of 

compensat[ion]” for independent mortgage brokers. NAMB Mot. Prelim. Inj., ECF No. 4, 

Michael Anderson Aff. (hereinafter “Anderson Aff.”), ¶ ¶19(i)-20; D’Alonzo Aff., ¶ 19. This 

prohibition, even before the Rule becomes effective on April 1, 2011, has “resulted in loan 

officers resigning from their positions and leaving for competitors, and will result in individual 

loan officers being terminated, mortgage brokers closing their doors and ceasing operations, 

wholesale lender operations being significantly diminished and less loan choices for consumers.” 
43

NAMB Mem., at 9. Specifically, NAMB argues that the Rule requires mortgage brokers to 

abandon compensation models that are tied to the terms of loan agreements, and small 

brokerages are “unable to compensate [their] loan officers in other manner [sic], such as salary or 

bonus rate” due to limitations on resources and capital. Anderson Aff., ¶ 28.; D’Alonzo Aff., ¶¶ 

20-21, 23 (“impossible for mortgage brokerages to provide a competitive, fixed salary-based 

compensation structure for their loan officers” and “the mortgage brokerage industry simply 

cannot adapt to this restriction on its compensation practices”); NAMB Mot. Prelim. Inj., ECF 

No. 4, Carlos Gutierrez Aff. (hereinafter “Gutierrez Aff.”), ¶18 (stating that other forms of 

compensation “not feasible” and “unworkable” in company’s business model). Unlike these 

brokerages, however, creditors are not subject to the Board’s Rule and are therefore free to pay 

their employees on a commission basis. “As a direct result . . . loan officers have already begun 

to resign their positions and leave for ‘creditors’ (lenders and banks), who are not prohibited 

from paying these loan officers commissions.” NAMB Mem., at 10; Anderson Aff., ¶ 30 (“Our 

loan officers are already being solicited by banks who are telling them that all mortgage 

brokerages will be out of business after April 1, 2011 because they have no economically viable 

business model to turn to in order to stay in business.”). One of NAMB’s affiants describes “at 

the end of the day [my brokerage firm] and other mortgage brokerage firms will not be able to 

retain any loan officers. This will leave these businesses to become one-man shops, which is 

neither feasible nor practical since companies [like mine] cannot support the required overheard 

and operational expense as a one-man operation. Thus, the only alternative for [my brokerage] 

and thousands of small business mortgage brokerages like it is to close their doors.” Anderson 

Aff., ¶ 33. 
44

To further support the contention that implementation of § 226.36(d)(2) will cause many 

mortgage brokers to lose their jobs or close their business, NAMB presents attestations from five

small business owners who state that that the prohibition on commission-based compensation has 

caused them to “come to a single sobering conclusion, that I have no choice but to lay off all of 

my originators and attempt to originate loans solely.” Gutierrez Aff., at ¶19; NAMB Mot. 

Prelim. Inj., ECF No. 4, Affs. of Belinda M. Janecke, at ¶ 20, Residential Mortgage of South 

Carolina, LLC, at ¶ 21; see also NAMB Mot. Prelim. Inj., ECF No. 4, Walter Financial, LCC 

Aff., at ¶ 24 (“After reviewing the type of compensation packages that would be necessary to 

retain my loan originators so that Walter Financial can generate loans, it is clear to me that 

shortly after April 1, 2011 Walter Financial will either lose its loan officers, or will have to 

terminate them.”); NAMB Mot. Prelim. Inj., ECF No. 4, Terry L. Clark Aff., at ¶ 13 (“result in a 

mass exodus or termination of licensed, professional loan officers and will result in the loss of 

thousands of additional jobs for the employees that support the mortgage loan process (i.e. Loan 

Processors, Underwrites, Loan Closers, etc.)”). 

NAMB has sufficiently demonstrated that its members will likely be irreparably harmed 

by the implementation of the Board’s Rule prohibiting dual compensation for loan originators 

who are paid directly by a consumer. Although NAMB members face purely economic injury,

they sufficiently assert that this injury will “result in the complete destruction of their business,” 

which certainly constitutes irreparable harm. Cf. United States v. Philip Morris USA, Inc., 449 F.

Supp. 2d 988, 991 (D.D.C. 2006) (“For example, Defendants do not contend that compliance 

with the Order will result in the complete destruction of their business, which is the legal 

standard applied by our Court of Appeals in determining whether economic loss constitutes 

irreparable harm,” citing Wis. Gas Co., 758 F.2d at 673-74). NAMB has therefore shown that its 
45

members would face an irreparable harm absent an injunction enjoining the Board from 

implementing § 226.36(d)(2). 

4. Balance of Equities and the Public Interest

The Board has admitted in the Rule’s supplementary comments that small independent 

brokerages and loan originators across the country will be substantially affected by the Rule and 

its prohibitions on certain compensation practices. See Board Notice of Final Rule, 75 Fed. Reg. 

58,531. Plaintiff NAMB has demonstrated that its members face irreparable harm absent an 

injunction enjoining the Final Rule. The Board counters that if the Court grants an injunction, 

the Court will “thwart TILA’s purpose of protecting customers” and will “substantially harm 

consumers nationwide by subjecting unsuspecting consumers to the existing practice of paying 

loan originators compensation that is tied to the terms and conditions of the loans being marketed 

to those consumers.” Defs.’ Opposition to Pls.’ Mot. Prelim. Inj., at 41. Although NAMB’s 

demonstration that its members face substantial irreparable harm is compelling, the Court must 

consider the plaintiff’s harm against both the public interest furthered through the Rule, and the 

fact that the plaintiffs have not demonstrated a likelihood of success on the merits. That said, the 

Board has reasonably concluded that the Rule will further public policy interests, a position that 

is further supported by the Dodd-Frank Act which also includes provisions restricting certain 

loan-compensation practices. See Dodd-Frank Act, § 1403, 124 Stat. 2139-40 (prohibitions on 

steering incentives for mortgage originators). Based upon the record, despite the harm plaintiffs’

members may face, the Court must deny the plaintiffs’ motions for injunctive relief. 

III. CONCLUSION
46

For the foregoing reasons, the plaintiffs NAIHP and NAMB’s motions for temporary 

restraining orders and preliminary injunctions are DENIED. An Order consistent with this 

Memorandum Opinion will be entered.

SO ORDERED.

DATED: March 30, 2011 /s/ Beryl A. Howell BERYL A. HOWELL

 United States District Judge