In a little more than six years, the Consumer Financial Protection Bureau has returned billions of dollars to consumers while confronting abuses carried out by large banks, mortgage lenders and law firms—successes that are reflected in the agency's court record and settlements.

The CFPB this week announced a settlement that requires National Collegiate Student Loan Trusts, one of the nation's largest owners of private student loan debt, to pay at least $19.1 million to resolve the allegations the company filed illegal collection lawsuits. On Sept. 7, the bureau reached a settlement requiring a company and its owner to pay $350,000 over allegations they steered consumers into loans that were illegal or unlicensed in their home states.

But the CFPB has also suffered a string of setbacks this summer.

The agency lost a case against a small, family owned law firm in Louisville in July and was sanctioned last month for allegedly failing to follow a federal judge's orders in a case in Atlanta. This month, a federal judge in Maryland cleared an attorney of CFPB charges, and in San Francisco, the agency won only a fraction of the judgment it desired in a case involving deceptive advertising claims.

And all eyes will be on a federal appeals court in the coming weeks, when a decision could be released about the lawfulness of the Obama-era agency's single-director structure. It was nearly a year ago, in October, when a three-judge U.S. Court of Appeals for the D.C. Circuit panel inveighed against the “massive, unchecked” power of the agency's director.

“The [district court] judges presumably are aware of PHH and the political noise around the agency. Does that make them a little more free to strike down claims they think are excessive? Maybe. But to me, the reason we're starting to see this [recent stretch of court setbacks] is that there appears to be more willingness to litigate, and it takes time for these things to work through the court system, and now you're starting to see more decisions,” said Mayer Brown partner Ori Lev in Washington, a former deputy enforcement director at the CFPB.

“I suspect the agency's perspective is, 'If we don't reach for everything we might be able to get, we're self-censoring. It's better to win some and lose some than to not go for it, which is the same as not winning at all,'” Lev added.

Jason Doiy / The Recorder

On Sept. 8, a San Francisco federal judge refused to award the $74 million in restitution the CFPB wanted from Nationwide Biweekly Administration Inc. and its founder, Daniel Lipsky, over their allegedly deceptive marketing of a mortgage payment program. U.S. District Judge Richard Seeborg of the Northern District of California instead ordered them to pay a statutory penalty of $7.3 million.

The CFPB, Seeborg said, “has not proved that defendants engaged in the type of fraud commonly connoted by the well-worn phrase 'snake oil salesmen.'”

A week later, on Sept. 13, a federal judge in Maryland dismissed the CFPB's case against an attorney accused of aiding a scheme to scam victims of lead paint poisoning out of future settlement money. U.S. District Judge J. Frederick Motz of the District of Maryland found that the attorney, Charles Smith, qualified for a “practice of law exclusion, ” clearing him of the CFPB's allegations.

In the Atlanta case, U.S. District Judge Richard Story of the Northern District of Georgia rebuked agency lawyers for what he called their “blatant disregard” to follow orders to state the factual basis to support claims against four payment processors and a telemarketing company. Story dismissed several charges in the CFPB's case.

Story said the CFPB was obligated to sit for depositions and “needed to produce a witness prepared to apprise the defendants of the facts they would face at trial.” The agency, he said, “has put up as much opposition as possible at every turn. And in doing so, it has recycled many of the same arguments over and over.”

Those companies—represented by firms including Venable, Caplan Cobb and Lindquist & Vennum, among other firms—are now seeking legal fees from the CFPB. The companies have yet to specify a dollar figure for their fees request, and the CFPB's case against the debt collectors themselves remains pending.

“The CFPB has done some good for consumers, but it has also pushed the limits and over-reached at points,” said Paul Hastings LLP of counsel Gerry Sachs, a former CFPB enforcement director who was previously an Atlanta-based assistant U.S. attorney. “Only time will tell how this impacts its future.”

The CFPB Is 'Willing to Litigate'

Deepak Gupta, founding principal of Washington's Gupta Wessler, cautioned against drawing broad conclusions from a few losses or adverse rulings. But, he said, such setbacks could signal that the CFPB is willing to test the limits of its ability to protect consumers.