Proposed Rule2022-13864
Credit Card Late Fees and Late Payments
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
June 29, 2022
Issuing agencies
Consumer Financial Protection Bureau
Abstract
In order to support its rulemaking and other functions, the Consumer Financial Protection Bureau (Bureau or CFPB) is charged with monitoring for risks to consumers in the offering or provision of consumer financial products or services, including developments in markets for such products or services. As part of this mandate, the Bureau is seeking information from credit card issuers, consumer groups, and the public regarding credit card late fees and late payments, and card issuers' revenue and expenses. For example, the Bureau is seeking information relevant to certain provisions related to credit card late fees in the Credit Card Accountability Responsibility and Disclosure Act of 2009 (CARD Act or the Act) and Regulation Z. Areas of inquiry include: factors used by card issuers to set late fee amounts; card issuers' costs and losses associated with late payments; the deterrent effects of late fees; cardholders' late payment behavior; methods that card issuers use to facilitate or encourage timely payments, including autopay and notifications; card issuers' use of the late fee safe harbor provisions in Regulation Z; and card issuers' revenue and expenses related to their domestic consumer credit card operations.
Full Text
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<title>Federal Register, Volume 87 Issue 124 (Wednesday, June 29, 2022)</title>
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[Federal Register Volume 87, Number 124 (Wednesday, June 29, 2022)]
[Proposed Rules]
[Pages 38679-38682]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-13864]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 87, No. 124 / Wednesday, June 29, 2022 /
Proposed Rules
[[Page 38679]]
BUREAU OF CONSUMER FINANCIAL PROTECTION
12 CFR Part 1026
[Docket No. CFPB-2022-0039]
Credit Card Late Fees and Late Payments
AGENCY: Bureau of Consumer Financial Protection.
ACTION: Advance notice of proposed rulemaking.
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SUMMARY: In order to support its rulemaking and other functions, the
Consumer Financial Protection Bureau (Bureau or CFPB) is charged with
monitoring for risks to consumers in the offering or provision of
consumer financial products or services, including developments in
markets for such products or services. As part of this mandate, the
Bureau is seeking information from credit card issuers, consumer
groups, and the public regarding credit card late fees and late
payments, and card issuers' revenue and expenses. For example, the
Bureau is seeking information relevant to certain provisions related to
credit card late fees in the Credit Card Accountability Responsibility
and Disclosure Act of 2009 (CARD Act or the Act) and Regulation Z.
Areas of inquiry include: factors used by card issuers to set late fee
amounts; card issuers' costs and losses associated with late payments;
the deterrent effects of late fees; cardholders' late payment behavior;
methods that card issuers use to facilitate or encourage timely
payments, including autopay and notifications; card issuers' use of the
late fee safe harbor provisions in Regulation Z; and card issuers'
revenue and expenses related to their domestic consumer credit card
operations.
DATES: Comments must be received by July 22, 2022.
ADDRESSES: You may submit responsive information and other comments,
identified by Docket No. CFPB-2022-0039 by any of the following
methods:
1. Federal eRulemaking Portal: <a href="https://www.regulations.gov">https://www.regulations.gov</a>. Follow
the instructions for submitting comments.
2. Email: <a href="/cdn-cgi/l/email-protection#bf8d8f8d8d92fccddadbd6cbfcdecddbf3decbdaf9dadafef1efedffdcd9cfdd91d8d0c9"><span class="__cf_email__" data-cfemail="60525052524d231205040914230112042c011405260505212e303220030610024e070f16">[email protected]</span></a>. Include Docket No.
CFPB-2022-0039 in the subject line of the message.
3. Mail/Hand Delivery/Courier: Comment Intake--Credit Card Late
Fees, Consumer Financial Protection Bureau, 1700 G Street NW,
Washington, DC 20552. Please note that due to circumstances associated
with the COVID-19 pandemic, the Bureau discourages the submission of
comments by hand delivery, mail, or courier.
Instructions: The Bureau encourages the early submission of
comments. All submissions must include the document title and docket
number. Because paper mail in the Washington, DC area and at the Bureau
is subject to delay, commenters are encouraged to submit comments
electronically. In general, all comments received will be posted
without change to <a href="https://www.regulations.gov">https://www.regulations.gov</a>. In addition, once the
Bureau's headquarters reopens, comments will be available for public
inspection and copying at 1700 G Street NW, Washington, DC 20552, on
official business days between the hours of 10 a.m. and 5 p.m. Eastern
time. At that time, you can make an appointment to inspect the
documents by telephoning 202-435-7275.
All submissions in response to this notice, including attachments
and other supporting materials, will become part of the public record
and subject to public disclosure. Proprietary information or sensitive
personal information, such as account numbers or Social Security
numbers, or names of other individuals, should not be included.
Submissions will not be edited to remove any identifying or contact
information.
If you wish to submit trade secret or confidential commercial
information, please contact the individuals listed in the FOR FURTHER
INFORMATION CONTACT section below. Information that the submitter
customarily and actually keeps private will be treated as confidential
in accordance with the Bureau's Rule on the Disclosure of Records and
Information, 12 CFR part 1070.
FOR FURTHER INFORMATION CONTACT: Adrien Fernandez, Counsel, Krista
Ayoub and Steve Wrone, Senior Counsels, Office of Regulations, at 202-
435-7700. If you require this document in an alternative electronic
format, please contact <a href="/cdn-cgi/l/email-protection#45060315071a0426262036362c272c292c313c05262335276b222a33"><span class="__cf_email__" data-cfemail="1c5f5a4c5e435d7f7f796f6f757e75707568655c7f7a6c7e327b736a">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
I. Background
In order to support its rulemaking and other functions, the Bureau
is charged with monitoring for risks to consumers in the offering or
provision of consumer financial products or services, including
developments in markets for such products or services. As part of this
mandate, the Bureau is seeking information from credit card issuers,
consumer groups, and the public regarding credit card late fees and
late payments and card issuers' revenue and expenses. For example, the
Bureau is seeking information relevant to certain provisions related to
late fees in the CARD Act \1\ and Regulation Z.\2\
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\1\ Credit Card Accountability Responsibility and Disclosure Act
of 2009 (CARD Act), Public Law 111-24, 123 Stat. 1734 (2009).
\2\ 12 CFR part 1026.
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Specifically, section 149(a) of the CARD Act provides that the
amount of any penalty fee or charge that a card issuer may impose with
respect to a credit card account under an open-end consumer credit plan
in connection with any omission with respect to, or violation of, the
cardholder agreement, including any late payment fee, over-the-limit
fee, or any other penalty fee or charge, must be reasonable and
proportional to such omission or violation.\3\ Section 149(b) of the
Act directs the Bureau \4\ to issue rules that establish standards for
assessing whether the amount of any penalty fee or charge is reasonable
and proportional to the omission or violation to which the fee or
charge relates.\5\ In issuing such rules, the Act requires the Bureau
to consider: (1) the cost incurred by the creditor from an omission or
violation; (2) the deterrence of omissions or violations by the
cardholder; (3) the conduct of the cardholder; and (4) such other
factors as the Bureau may deem necessary or appropriate. The Act
[[Page 38680]]
authorizes the Bureau to establish different standards for different
types of fees and charges, as appropriate.\6\ Finally, the Act
authorizes the Bureau in consultation with other agencies to provide an
amount for any penalty fee or charge that is presumed to be reasonable
and proportional to the omission or violation to which the fee or
charge relates.\7\
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\3\ 15 U.S.C. 1665d(a).
\4\ The Dodd-Frank Act, which became law on July 21, 2010,
established the Bureau and, one year later, transferred authority
and responsibility for implementing and enforcing the CARD Act from
the Board to the Bureau.
\5\ 15 U.S.C. 1665d(b).
\6\ 15 U.S.C. 1665d(d).
\7\ 15 U.S.C. 1665d(e).
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Section 149(a) and (b) of the CARD Act is implemented in part in
Regulation Z, Sec. 1026.52(b)(1). In particular, under Sec.
1026.52(b)(1), a card issuer must not impose a fee for violating the
terms or other requirements of a credit card account, including a late
payment, unless the issuer has determined that the dollar amount of the
fee represents a reasonable proportion of the total costs incurred by
the issuer for that type of violation consistent with Sec.
1026.52(b)(1)(i) or complies with the safe harbor amounts consistent
with Sec. 1026.52(b)(1)(ii).\8\ Currently, Sec. 1026.52(b)(1)(ii)
sets forth a safe harbor of $30 generally for a late payment, except
that it sets forth a safe harbor of $41 for each subsequent late
payment within the next six billing cycles. The safe harbor dollar
amounts in Sec. 1026.52(b)(1)(ii) are subject to an annual inflation
adjustment.\9\ A card issuer is not required to use the cost analysis
in Sec. 1026.52(b)(1)(i) to determine the amount of late fees if it
complies with the safe harbor amounts in Sec. 1026.52(b)(1)(ii).\10\
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\8\ The provisions in Sec. 1026.52(b)(1) apply to penalty fees
generally, including late fees. See comment 52(b)-1. Other
restrictions on the amount of penalty fees, including late fees, are
set forth in Sec. 1026.52(b)(2). For example, Sec.
1026.52(b)(2)(i)(A) prohibits a card issuer from imposing a late fee
that exceeds the amount of the required minimum periodic payment due
immediately prior to assessment of the late payment fee. Comment
52(b)(2)(i)-1.
\9\ 12 CFR 1026.52(b)(1)(ii)(D).
\10\ See comment 52(b)(1)-1.i.A.
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The questions in this notice cover several areas relating to the
forgoing statutory and regulatory provisions, as well as areas relating
more generally to the domestic consumer credit card market. Areas of
inquiry include: factors used by card issuers to set late fee amounts,
including but not limited to the statutory factors described above;
card issuers' costs and losses associated with late payments; the
deterrent effects of late fees; cardholders' late payment behavior;
methods that card issuers use to facilitate or encourage timely
payments, including autopay and notifications; card issuers' use of the
late fee safe harbor provisions in Regulation Z, Sec.
1026.52(b)(1)(ii); and card issuers' revenue and expenses related to
their domestic consumer credit card operations. In answering the
questions below, card issuer commenters should base their answers on
information relevant to their domestic consumer credit card portfolios.
Other commenters should base their answers on information they have
about the domestic consumer credit card market.
II. Questions
A. Factors Used by Card Issuers To Set Existing Levels of Late Fees
1. For late fees assessed to cardholders who were not previously
assessed a late fee in at least one of the previous six billing cycles,
what factors do card issuers use to determine the amount of the late
fee to charge per incident? For card issuer commenters, please list and
describe factors that you consider in determining the late fee amount
to charge per incident including:
a. Whether, and if so how, you determine that the late fee amount
is proportionate or otherwise related to the cost you incur from a late
payment;
b. Whether, and if so how, you determine that the late fee amount
is proportionate or otherwise related to the statement balance or
amount of the required minimum payment (beyond the restrictions in
Sec. 1026.52(b)(2));
c. Whether, and if so how, you take into account the number of late
fees you estimate you would be unable to collect;
d. Whether, and if so how, you determine the late fee amount based
on annual revenue goals;
e. Whether, and if so how, you take into account information
related to whether and to what degree the amount of a late fee deters
future late payments or other violations; and
f. Whether, and if so how, you take into account any other factors.
2. For late fees assessed to cardholders who were previously
assessed a late fee in at least one of the previous six billing cycles,
what factors do card issuers use to determine the amount of the late
fee to charge per incident? For card issuer commenters, please list and
describe factors you consider in determining the late fee amount to
charge per incident including:
a. Whether, and if so how, you determine that the late fee amount
is proportionate or otherwise related to the cost you incur from a late
payment;
b. Whether, and if so how, you determine that the late fee amount
is proportionate or otherwise related to the statement balance or the
amount of the required minimum payment (beyond the restrictions in
Sec. 1026.52(b)(2));
c. Whether, and if so how, you take into account the number of late
fees you estimate you would be unable to collect;
d. Whether, and if so how, you determine the late fee amount based
on annual revenue goals;
e. Whether, and if so how, you take into account information
related to whether and to what degree the amount of a late fee deters
future late payments or other violations; and
f. Whether, and if so how, you take into account any other factors.
B. Costs and Losses
3. What types of costs are associated with credit card late
payments? For card issuer commenters, please provide an itemization of
the annual amounts in 2019, 2020, and 2021 aggregated for your domestic
consumer credit card portfolios for the following categories:
a. Costs associated with notifying (other than through periodic
statements) cardholders of delinquencies and resolving delinquencies
(including the establishment of workout and temporary hardship
arrangements) prior to charge-off, including payments to third-party
debt collectors;
b. Costs associated with notifying (other than through periodic
statements) cardholders of delinquencies and resolving delinquencies
(including the establishment of workout and temporary hardship
arrangements) post-charge-off, including payments to third-party debt
collectors;
c. Charges to the card issuer by other third parties as a result of
late payment;
d. Losses due to non-payment;
e. Costs associated with holding reserves against potential losses;
and
f. Costs of funding delinquent accounts.
4. What is the amount of costs associated with a single additional
late payment? For card issuer commenters, please list, describe, and
report the amount of marginal costs associated with a single additional
late payment incurred by you. For card issuer commenters, please also
list, describe, and report the amount of average costs associated with
collecting late payments. Please distinguish between pre-charge-off and
post-charge-off costs when appropriate, and exclude losses due to non-
payment, costs associated with holding reserves, and costs of funding
delinquent accounts.
5. Please list and describe actions and methods through which a
card issuer typically contacts cardholders about late payments (other
than through periodic statements). For card issuer
[[Page 38681]]
commenters, please report the general number of calendar days after the
due date after which you typically undertake the following actions if
the minimum payment is not received:
a. Contact cardholder about late payment (other than through
periodic statements) prior to charging a late fee;
b. Contact cardholder about late payment (other than through
periodic statements) after charging a late fee;
c. Report late payment to credit bureaus;
d. Initiate collection actions via first-party debt collection;
e. Initiate collection actions via third-party debt collection; and
f. Any other actions taken specifically with respect to collecting
late payments.
6. How many late payments does a card issuer typically experience
in a year, as a total and relative to the number of accounts? For card
issuer commenters, please report the annual number of late payments
experienced by you in 2019, 2020, and 2021, as a total per year, and
also as a fraction of the number of accounts per year.
7. How many late fees does a card issuer typically assess in a
year, as a total and as relative to the number of accounts? For card
issuer commenters, please report the annual number of late fees
assessed by you in 2019, 2020, and 2021, as a total per year, and also
as a fraction of the number of accounts per year.
8. For card issuer commenters, for each of the following categories
separately, please report the annual number in 2019, 2020, and 2021, as
a total per year and relative to the number of accounts per year, of:
a. Late fees that you were not able to collect and whether these
uncollectible amounts are more common for the first versus subsequent
late fee charges; \11\
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\11\ Please do not include fees that you chose not to impose or
chose not to collect (such as fees you chose to waive at the request
of the cardholder or under a workout or temporary hardship
arrangement).
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b. Late fees that were discharged in bankruptcy; and
c. Late fees that you were required to waive in order to comply
with a legal requirement (such as a requirement imposed by Regulation Z
or 50 U.S.C. app. 527).
C. Deterrence
9. Do card issuers, consumer groups, or the general public have any
research or information related to whether and to what degree the
amount of a late fee, including the higher safe harbor amount set forth
in Sec. 1026.52(b)(1)(ii)(B), does or does not deter future late
payments and whether the deterrent effect differs for the first versus
subsequent late payments? If so, please provide that research or
information.
10. Do card issuers typically impose consequences other than late
fees on cardholders for paying late? If so, what other consequences are
generally imposed on cardholders for paying late? Do card issuers,
consumer groups, or the general public have any research or information
on how effective these other consequences are at deterring late
payments? If so, please provide that research or information. When are
these other consequences generally imposed? For card issuer commenters,
please report the general number of calendar days after the due date
after which the following actions typically will occur if the minimum
payment is not received:
a. Lose grace period \12\ on new transactions;
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\12\ The grace period is the date by which or the period within
which any credit extended may be repaid without incurring a finance
charge due to a periodic interest rate.
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b. Revise upward purchase APRs on new transactions because of late
payments that were not more than 60 days late;
c. Revise upward purchase APRs on new transactions and existing
balance because of late payments that were more than 60 days late;
d. Lose benefits such as rewards; and
e. Any other consequences.
11. Are there other methods that card issuers typically use to
deter late payments that are less costly to cardholders than late fees
or the consequences listed above? If so, what are those methods? (See
also questions below related to auto pay and notifications of an
upcoming payment.)
D. Cardholder Behavior
12. What categories do card issuers use to classify cardholders
based on their late payment behavior (e.g., cardholders who (1)
inadvertently forgot to pay; versus (2) cardholders who did not have
the funds to pay by the due date)? For card issuer commenters, please
provide data on what share of cardholders that pay late fall within
each of these categories, or other typical classifications.
13. For card issuer commenters, please provide data on how many
calendar days after the due date cardholders make at least the minimum
payment that is late. Please indicate to what percent of accounts is at
least the minimum payment received and credited within:
a. Less than 24 hours;
b. 2-5 days;
c. 6-10 days;
d. 11-15 days;
e. 16-30 days; and
f. 31 days or more.
14. Is there other cardholder conduct the Bureau should consider in
evaluating potential changes to the safe harbor provisions in Sec.
1026.52(b)(1)(ii)? If so, what is the other conduct and how should the
Bureau consider it?
E. Autopay
15. Do most card issuers currently offer autopay? For card issuers
that currently offer autopay, please describe the process that a
cardholder must go through in order to enroll in autopay and any
restrictions that you may place on the autopay feature (i.e., the
feature is only available to certain cardholders).
16. For card issuers that currently offer autopay, what is the
current rate of cardholder enrollment?
17. For card issuers that currently offer autopay, are any benefits
offered to cardholders to incentivize autopay enrollment?
18. What, if any, are the consumer-related concerns associated with
cardholders' use of autopay? Do card issuers consider these concerns
when determining whether to provide autopay or incentivize its use, and
if so, how?
19. What are the benefits to card issuers of making autopay
available to cardholders?
F. Notifications of Upcoming Due Date
20. Please list and describe actions and methods through which card
issuers contact cardholders about an upcoming due date (other than
through periodic statements). For card issuers that provide
notifications about upcoming due dates (other than through periodic
statements), do you require cardholders to opt in to these
notifications or are all notifications of this type automatic for every
cardholder?
21. For card issuers that provide notifications about upcoming due
dates (other than through periodic statements), in the months after a
cardholder is charged a late fee, do you change the frequency or method
by which you communicate with cardholders that a payment due date is
upcoming? If so, how long are these changes in effect?
G. Courtesy Periods and Fee Waivers <SUP>13</SUP>
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\13\ For the purposes of this section, a ``courtesy period''
refers to a policy or practice of a time period after the due date
in which a late fee will not be assessed if at least the minimum
payment is received and credited to the account during that time
period, even if the terms of the account agreement provide that the
card issuer may assess a late payment fee by a certain date.
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22. Do any card issuers currently offer courtesy periods before
late fees are
[[Page 38682]]
assessed? For card issuers that offer courtesy periods, how many days
is the courtesy period? Are there any restrictions associated with the
courtesy period (i.e., courtesy periods are only available to certain
cardholders)?
23. Do any card issuers waive late fees if a cardholder contacts
the issuer? If so, for card issuers that waive late fees, under what
circumstances are late fees waived?
H. Staggered Late Fee
24. Do any card issuers currently offer staggered late fees (i.e.,
a small dollar amount fee, such as $2-3, that is imposed no more often
than every certain number of days, such as every 5 or 10 days)? For
card issuers that offer staggered late fees, describe the structure and
how the fee amounts and number of days between fee escalations were
decided.
I. Safe Harbor Provisions
25. Other than the statutory factors listed in the CARD Act, are
there other factors the Bureau should consider in evaluating potential
changes to the safe harbor provisions in Sec. 1026.52(b)(1)(ii)? If
so, what are these other factors and how should the Bureau consider
them?
26. For card issuer commenters, if you assess a late fee that is
lower or greater than the current safe harbor amounts set forth in
Sec. 1026.52(b)(1)(ii), please describe why the safe harbor amount is
not being charged and how you arrived at the amount charged.
27. What late fee safe harbor amount would be sufficient for
purposes of allowing card issuers to recover, through late fees, their
costs in collecting late payments?
28. Do card issuers incur higher costs when collecting late
payments where a prior late payment occurred in the past six billing
cycles (repeat late payments) relative to the costs of collecting late
payments where there has not been a late payment in the prior six
billing cycles? Please include any research or information relating to
whether and to what degree the costs associated with repeat late
payments differ from the costs associated with late payments where
there has not been a late payment in the prior six billing cycles.
29. What potential changes to the safe harbor provisions, if any,
would cause card issuers to no longer use the safe harbor provisions in
determining the amount of late fees? In lieu of using the safe harbor
provisions, would card issuers use the cost analysis in Sec.
1026.52(b)(1)(i) to determine the amount of late fees?
30. Should the Bureau consider any alternative approaches to the
cost analysis in Sec. 1026.52(b)(1)(i) to determine the amount of late
fees if the card issuer decides not to use the safe harbor provisions
for determining late fees amounts?
J. Cost Analysis Provisions
31. Are any card issuers currently using the cost analysis
provisions in Sec. 1026.52(b)(1)(i) to set the amount of the late fees
they charge? For card issuers that are using the cost analysis
provisions, what is the amount of the late fees you charged in 2019,
2020, and 2021 based on this analysis?
32. For card issuer commenters, if you were to undertake the cost
analysis described in Sec. 1026.52(b)(1)(i) in determining the amount
of the late fees you could charge, what would the late fee amount be?
Please provide detailed information about the information you used to
determine this late fee amount.
33. Would card issuers need additional detail on how to comply with
the cost analysis provisions in Sec. 1026.52(b)(1)(i) beyond what is
currently provided in the commentary? \14\ If so, what additional
details are needed?
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\14\ See commentary to Sec. 1026.52(b)(1)(i) for existing
details on the cost-analysis provisions under Sec.
1026.52(b)(1)(i).
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34. If the Bureau were to require card issuers to comply with the
cost analysis provisions in Sec. 1026.52(b)(1)(i) in determining the
amount of the late fees they could charge, what additional process and
procedures should the Bureau adopt, if any, to ensure that card issuers
comply with these provisions?
K. Revenue and Expenses
35. For card issuer commenters, please itemize the types of revenue
associated with your domestic consumer credit card operations and
report overall annual revenue in 2019, 2020, and 2021 associated with
your domestic consumer credit card operations, including the itemized
annual income from the following categories:
a. Interest;
b. Fees;
c. Interchange revenue; and
d. Other income.
36. For card issuer commenters, please report revenue from late
fees collected on your domestic consumer credit card accounts in 2019,
2020, and 2021. Please do not include any fee waived or reversed as
uncollectible or any amount added to a contra-asset account for
uncollectible fees that the bank maintains and reports separately from
the allowance for loan and lease losses.
37. For card issuer commenters, please itemize the types of
expenses associated with your domestic consumer credit card operations
and report the overall annual expenses accrued in 2019, 2020, and 2021
associated with domestic consumer credit card operations, including the
itemized annual expenses for the following categories:
a. The total interest expenses accrued to fund credit card
receivables;
b. The interchange expense fees paid to the card associations;
c. Expenses to collect problem credit (including the total
collection cost for delinquent, recovery, and bankrupt accounts);
d. Marketing expenses (including payments to retail partners); and
e. All other operating and other expenses associated with card
operations such as servicing, cardholder billing, processing,
interchange, processing payments, card issuing, authorizations, card
administration, and outside services/outsourcing expenses, etc.
38. For card issuer commenters, please report the dollar amount of
losses in 2019, 2020, and 2021 for your domestic consumer credit card
portfolios.
Rohit Chopra,
Director, Consumer Financial Protection Bureau.
[FR Doc. 2022-13864 Filed 6-28-22; 8:45 am]
BILLING CODE 4810-AM-P
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