CFPB Interprets the FDCPA to Prohibit Debt Collectors from Charging “Pay-To-Pay” Or “Convenience” Fees—Are Creditors Next?

Stroock & Stroock & Lavan LLP

On June 29, 2022, the CFPB issued an advisory opinion interpreting Section 808 of the Fair Debt Collection Practices Act to prohibit debt collectors from charging or receiving  “convenience” fees or “pay-to-pay” fees.  Section 808 declares it an unfair practice to collect “any amount (including any interest, fee, charge, or expense incidental to the principal obligation) unless such amount is expressly authorized by the agreement creating the debt or permitted by law.”[1]

In a novel interpretation, the Bureau reasoned that Section 808 prohibits debt collectors from collecting any amount, unless: (i) the agreement creating the debt expressly permits the debt collector to collect such amount, and there is no law that prohibits the debt collector from collecting that amount; or (ii) some other law expressly permits the collection of that amount.[2] As the Bureau further explained, “any amount” should be interpreted expansively; literally any amount not expressly permitted by the agreement or permitted by law amounts to an unfair practice within the meaning of Section 808.  Accordingly, convenience fees are an “amount” that debt collectors may not charge unless expressly authorized. 

The CFPB further emphasized that the absence of a law prohibiting collection of a particular fee is not tacit authorization to charge or accept such fees.  The opinion also emphasizes that debt collectors may be in violation of Section 808 if they accept any portion of an impermissible fee from a third-party processor who assists in a debt collection.

Clearly, in connection with its mission to eradicate “junk fees” the Bureau has singled out debt collectors who charge convenience fees for certain payment methods.[3] Those subject to the FDCPA should quickly evaluate their fee structures in order to ensure prompt compliance with the Bureau’s novel interpretation of Section 808.

But what implications does the Bureau’s interpretation have for first-party creditors who service their own accounts? While they are not subject to the FDCPA, the Bureau has repeatedly emphasized that first-party creditors possibly engage in unfair, deceptive, or abusive practices if they violate the substantive provisions of the FDCPA.[4] Creditors would therefore be well-served to incorporate the Bureau’s most-recent pronouncement into their compliance program and evaluate whether consumers agree to and are advised of the charges they may incur during the collections cycle. With the interpretive guidance issued, the CFPB’s supervisory and enforcement functions cannot be far behind.


[1]  15 U.S.C. § 1692f(1).

[2] Id; CFPB Moves to Reduce Junk Fees Charged by Debt Collectors, June 29, 2022, https://www.consumerfinance.gov/about-us/newsroom/cfpb-moves-to-reduce-junk-fees-charged-by-debt-collectors/.

[3] Consumer Financial Protection Bureau Launches Initiative to Save Americans Billions in Junk Fees, Jan. 26, 2022, https://www.consumerfinance.gov/about-us/newsroom/consumer-financial-protection-bureau-launches-initiative-to-save-americans-billions-in-junk-fees/.

[4]  CFPB Compliance Bulletin 2013-07 (July 10, 2013), https://files.consumerfinance.gov/f/201307_cfpb_bulletin_unfair-deceptive-abusive-practices.pdf.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Stroock & Stroock & Lavan LLP | Attorney Advertising

Written by:

Stroock & Stroock & Lavan LLP
Contact
more
less

Stroock & Stroock & Lavan LLP on:

Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
- hide
- hide

This website uses cookies to improve user experience, track anonymous site usage, store authorization tokens and permit sharing on social media networks. By continuing to browse this website you accept the use of cookies. Click here to read more about how we use cookies.