FinCEN Rule Will Cause “Irreparable Damage.”
The lawsuit, filed in May 2025, names FinCEN and its director, Andrea Gacki, as well as the Ministry of Finance and his secretary, Scott Bessent, as defendants. In the lawsuit, FNF claims the rule, which was promulgated under the Biden administration, is “arbitrary and capricious” and will cause it “irreparable harm.”
The rule requires title firms to report specific details on all-cash home purchase transactions. These include the names, addresses, dates of birth, citizenship and ID numbers of all persons involved – including minors, payment details and information about trusts and entities purchasing the property.
In its latest filing, FNF claims that the FinCEN rule “treats an estimated 800,000 to 850,000 legal, unfinanced home sales each year as ‘suspicious’ and ‘relevant to a potential violation of law,’” and that it “forces title firms to collect and report more than a hundred data points for each transaction… all at a government-estimated cost of half a billion dollars per year without any meaningful evidence of favorable impact.”
As a result, and despite the magistrate judge’s report, FNF argues that the rule violates “the administrative statute and the big questions doctrine,” in addition to being “arbitrary and capricious.” As such, the FNF tells the court that the magistrate judge’s report upholding the rule should be reversed.
FNF argues that the magistrate’s report errs in all of its evaluations of the company’s claims, including claiming that FinCEN has no legal authority to impose this rule and that the report improperly authorizes a rule whose costs outweigh its benefits.
FinCEN had a choice about who to target
“FinCEN had choices. It could have focused on factual evidence of crime, such as transactions involving criminals. It could have asked Congress to expand the geographic and temporal boundaries for GTOs,” the filing said. “That didn’t happen either. Instead, it declared millions of common transactions ‘suspicious’ simply because they exist and are not already subject to anti-money laundering rules. The report blessed this approach.”
In addition to these objections, the FNF has also requested oral arguments regarding its objections to the recommendations of the subdistrict court judge. According to FNF, oral arguments are warranted because the case “presents issues of national importance regarding the legality of the FinCEN rule.”
It remains to be seen how Judge Wendy Berger will evaluate the magistrate judge’s recommendations and how she will rule on the cross-claim for summary judgment.
In late September, FinCEN announced it would delay implementation of the policy from December 1, 2025 to March 1, 2026.
At the time, FinCEN said the decision was made to “reduce operating costs and ensure effective regulation.”
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