725 F.Supp.3d 542
N.D.W. Va.2024Background
- Joseph Boczek refinanced a vehicle loan with Pentagon Federal Credit Union (PenFed) in June 2022.
- Boczek was charged a $5.00 "pay-to-pay" fee for making his monthly loan payment by telephone, which he alleges was unauthorized by contract or statute.
- Boczek claims PenFed’s cost for the transaction was $0.30, meaning PenFed profited from the fee.
- Boczek sued on behalf of himself and a putative class, alleging violations of the West Virginia Consumer Credit and Protection Act (WVCCPA).
- PenFed moved to dismiss under Rule 12(b)(6), arguing the claims were legally insufficient.
- The court’s ruling addressed PenFed’s motion to dismiss—the case remains in an early procedural posture.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether PenFed is a "debt collector" under the WVCCPA | PenFed gathers monthly loan payments, acting as a debt collector | PenFed is not a debt collector; the fee is not a claim or debt collection | PenFed is a debt collector under the WVCCPA, broadly construed |
| Whether charging the $5 fee violated WVCCPA §§ 46A-2-128(c),(d) | The fee is not authorized and is collected as part of debt collection | The fee is an optional, incidental, or convenience fee—not subject to WVCCPA | Allegations sufficient to state a claim under §§ 128(c), (d), as the fee is plausibly incidental |
| Whether federal law (NCUA regulations) preempts plaintiff’s claim | WVCCPA consumer protections are traditionally within state power | NCUA regulations preempt state law on “other fees” by federal credit unions | WVCCPA is not preempted; NCUA savings clause allows state consumer law |
| Whether plaintiff stated a claim for deceptive or coercive practices (WVCCPA §§ 127, 124) | PenFed charged an unauthorized fee and represented it as required | No fraudulent/deceptive representation or threat is alleged | Sufficiently pled for §§ 46A-2-127 and 46A-2-124 at the pleading stage |
Key Cases Cited
- Anderson v. Sara Lee Corp., 508 F.3d 181 (4th Cir. 2007) (pleading standards for motions to dismiss)
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (plausibility standard for stating a claim)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (pleading sufficient facts for plausibility)
- Thomas v. Firestone Tire & Rubber Co., 266 S.E.2d 905 (W. Va. 1980) (creditors collecting their own debts can be considered debt collectors under WVCCPA)