In recent years, many creditors instituted convenience or “expedited payment” fees, charging consumers for payments made by telephone and/or online rather than by mail. However, some state regulators, including those in Colorado, Texas and Wyoming, have taken the position that such fees are incident to the extension of credit (requiring disclosure as a “finance charge”) and are not expressly permitted to be separately charged under state law.

In perhaps the first precedential court opinion on this issue in the country, Vogel v. Onyx Acceptance Corp., 2011 Wyo. 163 (2011), the Wyoming Supreme Court recently affirmed a sales finance company’s ability to separately charge such fees to consumers. In doing so, the Court rejected the positions taken by the Wyoming Division of Banking and, for that matter, other state regulators.

The Court opined that fees charged for an optional mode of payment — particularly if disclosed after the credit transaction — are not charges which are incident to or a condition of the extension of credit.  Moreover, the Court held that the absence of convenience fees from the Uniform Consumer Credit Code’s list of permissible fees does not preclude convenience fees.