United States District Court, E.D. Missouri, Eastern Division
For Jessica Weast, Plaintiff: James W. Eason, LEAD ATTORNEY, EASON LAW FIRM, Clayton, MO.
For Rockport Financial, LLC, doing business as Regional Credit Services, Inc., Defendant: Dennis J. Barton, III, LEAD ATTORNEY, BARTON LAW GROUP, LLC, Chesterfield, MO.
MEMORANDUM AND ORDER
AUDREY G. FLEISSIG, UNITED STATES
This action, brought under the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 (" FDCPA" ), is before the Court on the motion of Defendant Rockport Financial, LLC, to dismiss Plaintiff Jessica Weast's first amended complaint, for failure to state a claim. For the reasons set forth below, Defendant's motion shall be denied in large part.
This case arises out of Defendant's attempt to collect on a debt of $896, allegedly owed by Plaintiff to another. Plaintiff claims that a collection letter Defendant sent to her violated the FDCPA in several ways. The letter, attached to Plaintiff's amended complaint, informed Plaintiff of her outstanding balance, and notified her that she would be charged an additional $3.00 " convenience fee" if she made a payment using a credit or debit card. The letter also stated, in bold and capital letters, " ALL CHECKS MUST BE MADE PAYABLE TO REGIONAL CREDIT SERVICES." Another portion of the letter stated, " If you are still unable to take care of this obligation, please call the office . . . so we are not forced to pursue other means to collect the debt." (Doc. No. 10-1 at 1.)
The one-count amended complaint claims that the convenience fee charge violates 15 U.S.C. § 1692f(1) (prohibiting the " collection of 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" ). She also claims that the letter violates § 1692e(2) (prohibiting debt collectors from making any false or misleading representations regarding " (A) the character, amount, or legal status of any debt; or (B) any services rendered or compensation which may be lawfully received by any debt collector for the collection of a debt" ) " by using false impressions to characterize the amount of the debt." Lastly she claims that the letter's alleged threat of litigation or that Defendant would use other means to damage her credit reputation
in an effort to collect the debt, constitutes an unfair and unconscionable means to collect the debt in question, in violation of § 1692f (prohibiting the use of any " unfair or unconscionable means to collect or attempt to collect a debt" ).
Besides the collection letter, Plaintiff also attached to her complaint a copy of the Consumer Financial Protection Bureau (" CFPB" ) Supervisory Highlights Report from October 2014, that states that § 1692f(1) of the FDCPA prohibits the imposition of fees incidental to the principal obligation where the contract creating the debt does not authorize the imposition of such fees and state law " is silent" on the issue.
Defendant argues that the complaint fails to state a claim, as a matter of law. According to Defendant " the mere reference to a convenience fee" in the letter does not violate the FDCPA because (1) the fee is independent of the existing debt, as it relates to an additional service by a third-party, and (2) the letter made it clear that Plaintiff had another method of payment available, namely payment by check, that did not involve a convenience fee. Defendant contends that Missouri law does not prohibit the charging of convenience or processing fees, and that this silence should be considered as permission to charge such fees. Defendant argues that the CFPB report is not binding on the Court and should not be adopted. Finally, Defendant argues that Plaintiff's assertion that the letter used illegal threatening language is not supported as a matter of law.
In response, Plaintiff argues that offering a choice of payment methods is immaterial to the illegality of charging a convenience fee for payments by a credit or debit card, which is forbidden by the clear language of the statute and the CFPB Report, where, as here, state law is ...