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Fla. Supreme Court Rejects Challenge to Fee Charged for Paying by Credit Card

convenience feesThe Supreme Court of Florida recently rejected a consumer’s challenge to a convenience fee charged when he made a payment using his credit card.

In so ruling, the Court determined that the consumer’s unjust enrichment claim failed because he received adequate consideration in exchange for a challenged fee when he took advantage of the privilege of using his credit card to make a payment.

A copy of the opinion in Pincus v. American Traffic Solutions, Inc. is available at:  Link to Opinion.

The case arose out of a Notice of Violation sent to a driver (“Driver”) for failure to comply with a steady red-light signal. The City of Miami contracted with a company (“Contractor”) to maintain the red-light cameras, issue and mail the citations and process violator’s payments of the civil penalties. The Notice that Contractor sent to Driver required him to pay a statutory penalty of $158.

The Notice included instructions for payment, and further advised that a convenience fee would be charged for payments made online or by phone. Driver elected to pay with his credit card and paid a five percent convenience fee.

Driver subsequently filed a putative class action in federal court, arguing that the fee was prohibited under Florida Statutes §§ 316.0083(b)(4), 318.121, and 560.204, and Contractor was therefore unjustly enriched by retaining the fee.

Contractor moved to dismiss for failure to state a claim and the trial court agreed. The trial court held that (1) the fee was not prohibited under section 316.0083(b)(4) because it was not a “commission” within the meaning of the statute; (2) the fee was not prohibited by section 318.121 because that section only applied to violations assessed under chapter 318 of Florida Statutes; and (3) section 560.204 did not provide a private right of action, because violations of that section are enforced by the Financial Services Commission’s Office of Financial Regulation.

Driver appealed, and the U.S. Court of Appeals for the Eleventh Circuit determined there was no guiding precedent on the key issues and certified numerous questions to the Florida Supreme Court.

Although several questions were certified to the Florida Supreme Court, the Court addressed only whether the unjust enrichment claim failed because Driver received adequate consideration in exchange for the challenged fee when he took advantage of the privilege of using his credit card to pay the penalty.

In order to state a claim for unjust enrichment, a plaintiff must allege “a benefit conferred upon a defendant by the plaintiff, the defendant’s appreciation of the benefit, and the defendant’s acceptance and retention of the benefit under circumstances that make it inequitable for him to retain it without paying the value thereof.” Fla. Power Corp. v. City of Winter Park, 887 So. 2d 1237, 1241 n.4 (Fla. 2004) (quoting Ruck Bros. Brick, Inc. v. Kellogg & Kimsey, Inc., 668 So. 2d 205, 207 (Fla. 2d DCA 1995)); see also Agritrade, LP v. Quercia, 253 So. 3d 28, 33 (Fla. 3d DCA 2017).

The Florida Supreme Court determined the issue to be whether Driver as a matter of law could plead that it was inequitable for Contractor to retain what Driver paid. The Court ruled he could not.

The Court found that even if the fee were prohibited under one of the statutes cited by Driver, Contractor’s retention of the fee was not inequitable because Contractor gave value in exchange in that plaintiff did not have to procure postage and a check or money order; he could pay the balance over time; he avoided the risk of the payment being delayed, lost or stolen; he was afforded more time to make the payment because it was instantaneous; and he was provided with immediate confirmation of his payment.

Therefore, the Florida Supreme Court held it was not inequitable for Contractor to retain the convenience fee because it “first pa[id] the value thereof to the plaintiff.” Agritrade, 253 So. 3d at 33 (quoting Peoples Nat’l Bank, 667 So. 2d at 879).

Thus, the Court ruled that Driver’s unjust enrichment claim failed because he did not allege a benefit conferred and accepted which would be unjust for Contractor to retain.

The Court answered one of the certified questions in the affirmative, declined to answer the remaining certified questions, and remanded the case to the Eleventh Circuit.

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The attorneys of Maurice Wutscher are seasoned business lawyers with substantial experience in business law, financial services litigation and regulatory compliance. They represent consumer and commercial financial services companies, including depository and non-depository mortgage lenders and servicers, as well as mortgage loan investors, financial asset buyers and sellers, loss mitigation companies, third-party debt collectors, and other financial services providers. They have defended scores of putative class actions, have substantial experience in federal appellate court litigation and bring substantial trial and complex bankruptcy experience. They are leaders and influencers in their highly specialized area of law. They serve in leadership positions in industry associations and regularly publish and speak before national audiences.

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