Trigger leads, Twitter feeds, and the changing DC game
The headline in the June 24, 2025 Mortgage Bankers Association’s Newslink read, “Trigger Leads Bill Passes House; MBA Reacts.” Highlighting comments from MBA President and CEO Bob Broeksmit, MBA’s Newslink noted,
“After two years of unrelenting advocacy efforts, MBA and its members are more optimistic than ever that the abusive use of mortgage credit trigger leads is close to an end."
For well over 2 years, through numerous obstacles, MBA’s Capital Hill staff has worked tirelessly to get legislation passed that will prevent mortgage loan applicants from the annoyance of being inundated with offers from other lenders the minute their credit is pulled[1] through the sale of so-called “trigger leads” by the credit bureaus.[2] MBA’s members’ (and, particularly, many retail LOs) have been clammoring for a solution to this threat to thier business for years.
Trigger leads have been perhaps MBA’s biggest priority since the latter years of the Biden administration. Unfortunately, the mortgage industry’s ability to influence legislation and policy was severely damaged by industry (mis)behavior prior to the 2008 financial crisis. So, MBA has had to play “whack-a-mole catch-up” over the past 15+ years to rebuild the credibility and image of the industry with lawmakers and regulators.[3] As a result, after tremendous effort by MBA with several near misses, almost getting a bill to prohibit trigger leads over the goal line is something worth trumpeting.[4]
What’s a trade association to do?
In event-laden times like these in Washington DC,[5] however, I truly feel sorry for MBA, ABA (bankers), and other financial trade associations. These are great advocates for the industry who invest tremendous time and resources into their congressional lobbying and regulatory policy-shaping efforts. MBA clearly wants its members to know that they are not just sitting back and acting as bystanders in this new DC environment and touting progress on the trigger lead legislation is one way to demonstrate that. It also offers an opportunity to remind its members of the importance of contributing to MBA’s lobbying efforts through the Mortgage Action Alliance and MORPAC.
Playing Nice with CFPB
Perhaps inspired by the mortgage industry’s guilt hangover from the Great Recession, but in seeking to influence regulatory policy at CFPB, (at least from my observations), MBA has been 100% committed to maintaining a cooperative and respectful relationship with the “new” consumer protection agency.[6] Long term, I think that a cooperative relationship between industry and regulators like that is the best policy for a trade association, but it takes two to tango and CFPB never embraced that kind of culture in return.[7]
Requests by MBA to CFPB for regulatory changes were always narrowly tailored and highlighted consumer benefits from the reform requests over economic efficiency or cost-saving arguments.[8] Unfortunately, even a strategy emphasizing consumer benefits never seemed to sway CFPB. As a practical matter, playing nice with CFPB resulted in very little, if any, changes to regulations or even commonsensical consumer benefits or recognition of unnecessary duplication.[9] The best thing the mortgage industry ever got from the CFPB was the RESPA FAQ’s: basically an accurate restatement of the law after the PHH case was decided.[10] The agency simply believed regulation is a zero sum game (the regulatory arrow goes in one direction only) and with all the cards, they were willing to give up nothing; always keeping maximal enforcement power in thier pocket, and leaving industry in a perpetual state of doubt about permissible activities.
The DC game has changed
As a MAA and MORPAC contributor, I see tremendous value in having a trade association’s voice and influence enhanced through the realities of political contributions, constituent communications and long-developed relationships with policymakers. But, in observing what should have been a slam dunk bi-partisan issue like trigger leads encounter so many challenges, it appears that old school ways of influencing regulatory policy through lobbying Congress, political party positions, and plying the executive branch/independent regulatory agencies[11] with sound consumer friendly arguments, leaning on relationships, and/or campaign contributions are less effective in the current environment to achieve industry goals.
Meanwhile, over at CFPB where the humble regulatory mantra of “first, do no harm”[12] was never embraced, under current leadership the administrative and regulatory war cry now seems to be, “just do the bare minimum required by Courts.” Perhaps under Trump 2.0 CFPB will get a “do-over” and a chance to reciprocate a cooperative relationship with industry, but the outcome for durable change at CFPB remains cloudy.
Twitter Feeds?
What makes traditional relationship-based lobbying efforts so difficult today is that it is nearly impossible to effectively influence policy when the key political, legislative and regulatory policymakers are one or more of: (a) no longer employed in the job, (b) fearing a job loss (or a primary challenge) if they displease “the boss” (or he changes his mind), (c) hostile to all regulations, (d) beholden to parochial issues that only seem important in the rarified air of Twitter (X),[13] (e) brazenly corrupt,[14] or (f) just mean-spirited,[15] coupled with a penchant for “retribution/punish the enemy” thrown in for good measure. The normal Washington DC lobbying game seems to have been largely upended, to where the important things are (i) relationships with certain influencers (often online or on certain platforms or cable channels), and/or (ii) a willingness/desire to have the judicial branch decide the issue.
ABA has been playing it differently
In 2008-2009, I was co-chair of the American Banker’s Association (ABA) Mortgage Markets Committee [16] (still brilliantly led on the ABA staff side by longtime Musings reader and former HUD and MBA staffer, Rod Alba). At that time, ABA’s philosophy seemed to be similar to MBA’s in terms of maintaining cooperation with the banking regulators (CFPB did not yet exist). The Dodd/Frank’s “Sword of Damocles”, however, was hanging over the banking industry and it was clear that one way or another, the banking industry was going to get a lot more regulation and supervision on consumer protection issues. Banks generally felt it was best to deal with prudential regulators like OCC, FDIC, and the Federal Reserve in a mostly cooperative and always respectful fashion, but CFPB was a new regulator designed to be entirely focused on consumer interests. I think the ABA’s attitude was to wait and see with CFPB, but CFPB proved time and again that they were not willing to play ball with industry and, other than during the Kraninger era, didn’t care what industry had to say about anything.
Fast forward to today and ABA has been playing the game entirely differently with CFPB. As clear as it was that Rohit Chopra was unwilling to play nice with his banking regulatory brethren like the FDIC or be respectful with regulatory attorneys who disagreed with his interpretations, it is clear that, eventually, ABA was disinterested in playing nice with CFPB.[17] Frustrated by CFPB shortcutting the APA’s regulatory process in numerous instances in which CFPB sought to change regulations through enforcement and guidance without industry input or comment, ABA began seeking to further its members’ interests with an aggressive litigation and advocacy strategy. A series of successful banker led lawsuits in the 5th Circuit (including the 2023 CFPB funding case which was ultimately unsuccesful) exemplified this strategy. I’m curious to see how ABA will approach the CFPB in the Trump 2.0 era and beyond.
Fair lending politics
One area in particular that the financial trade associations have traditionally treaded lightly is with respect to the use of disparate impact analysis in fair lending. Despite variation in its members’ opinions on the topic,[18] ABA has been quick to highlight misuse of disparate impact and fair lending overreach. First, when CFPB sought to equate unfair and deceptive practices with fair lending through a change to its exam manual, ABA (and several other large financial and business trade associations) sprung to work; issuing a white paper detailing the legal infirmities of equating fair lending and UDAAP and backing that up with litigation in the 5th Circuit which was ultimately successful. More recently, in the wake of several anti-DEI Executive Orders, ABA has issued another white paper taking aim at the constitutionality behind the premise of the CFPB’s and Biden Administration’s DOJ “modern day redlining” initiatives. Readers of this blog will recall I too have taken issue with the theory behind modern day redlining.
Further to these issues, I plan to interview Kitty Ryan, ABA’s SVP for Fair and Responsible Banking, along with the ABA’s most recent fair lending white paper author, former Department of Justice and current K&L Gates attorney Paul Hancock, on the next edition of Chrisman Commentary’s Mortgage Law Today webshow on July 15, 2025 at 2:00 pm Central. I was recently installed as host of the Mortgage Law Today show and look forward to an engaging and enlightening discussion along with “usual suspect” guests Marty Green and Loretta Salzano. Please sign up at the link above to listen live.
[1] Admittedly, this is as much an inter-lender issue as it is a consumer issue. Some would argue consumers actually benefit from being annoyed by numerous phone calls/texts or other communications making competitive offers because of enhanced competition. Given the exemptions in the proposed legislation for servicers, prior originators and especially depository banks, there will be winners and losers among MBA’s membership ranks.
[2] I have no sympathy for the credit bureaus’ revenue streams on this issue and only worry that leaving compliance with the certification requirements to enable exceptions in their largely unsupervised hands won’t go well.
[3] Like it or not, the court of public opinion placed the blame for the economic pain caused by the Great Recession/Mortgage Meltdown squarely on the mortgage lending industry. I think lenders deserve some grace for how the pandemic was handled, but almost 20 years later even the new CFPB leadership puts mortgage lending as its top priority issue. I still can’t believe Elizabeth Warren was invited to speak at the MBA’s Advocacy Conference this year, but maybe MBA is the only financial trade association still feeling guilty enough to take her scolding. I heard MBA’s audience was asked in advance not to boo (and they didn’t).
[4] We’ve heard we were close before, so let’s hope this isn’t the same old Lucy and the football trick, Charlie Brown.
[5] Who am I kidding? Has anyone ever seen times like these in DC? Events like the Dodd-Frank responses to the Great Recession, COVID-19, and 9/11 reflected examples of government working to address problems. Today, we are seeing Congressional inaction and government bureaucracy basically unwinding itself to see what problems are revealed.
[6] Perhaps most exemplified by the MBA’s amicus brief to the Supreme Court in support of the CFPB in the 2023 funding case. See mention in footnote #12 in Musing Ed. #68.
[7] There is a danger in too much coziness between regulator and regulated, but there are ways to control for that concern (rotating examiners, overlapping regulators, revolving door rules, etc.) that do not require an adversarial relationship. Kathleen Kraninger’s tenure moved CFPB closer to a cooperative culture, but an adversarial enforcement-first ethos has always dominated the agency and its actions.
[8] CFPB never gave an inch on reform requests related to the LO Compensation Rule or RESPA regardless of consumer benefits and, under Chopra, sought to double down on enforcing regulations without consumer harm.
[9] E.g., why do we need cost range estimates in the affiliated business disclosure when we have TRID and no GFE anymore?
[10] Of course, the FAQs never mentioned the PHH case (or mortgage brokering) and still had an enforcement-driven sentence letting them drive a truck through a hole if they think you have a “disguised referral agreement”.
[11] I’m not going to get into another Humphrey’s Executor discussion just yet, but I’m certain I will have to in the next year or so. (see fn. 8 and 21 in Musings #91)
[12] Or was that the “Prime Directive” from Star Trek? Please don’t @me Trekkies. I know that’s not the Prime Directive. “Do no harm” isn’t even a regulatory Prime Directive, but it absolutely should be. Kirk, out.
[13] According to Inside Mortgage Finance on June 26, 2025, “Federal Housing Finance Agency Director Bill Pulte’s decision Wednesday to direct the government-sponsored enterprises to consider cryptocurrency holdings in calculations of borrowers’ reserves followed two days of back and forth on X between Pulte and commenters urging him to embrace crypto in the mortgage space.” I don’t recall cryptocurrency as reserves appearing on MBA’s priority list, but someone at MBA ought to be paying close attention to Director Pulte’s Twitter feed.
[14] https://americanoversight.org/trumps-free-jet-from-qatar-and-corruptions-slippery-slope/
[15] See, e.g., https://travel.state.gov/content/travel/en/passports/passport-help/sex-marker.html
[16] ABA had recently completed the merger with the legacy America’s Community Bankers organization of mostly the old US Savings and Loan League membership.
[17] At least the CFPB as it was constituted before the most recent administration change.
[18] Back in Edition #14 from August 2020, I discussed how and why large lenders often have different views on disparate impact than smaller lenders. As a trade association for both large and small banks, ABA often needs to thread a fine needle on its members’ preferences.