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socrateaser
socrateaser, Attorney
Category: Business Law
Satisfied Customers: 37972
Experience:  Retired (mostly)
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Agent in Oxnard California wants to charge me a service fee

Customer Question

Agent in Oxnard California wants to charge me a service fee if I elect to pay rent for a vacation rental property by credit card and I challenged that and said I thought it was illegal. They are not saying they will not accept my credit card if I do not agree to the service fee. Is this legal?
Submitted: 7 years ago.
Category: Business Law
Expert:  Ellen replied 7 years ago.

Hello,

 

It is not a law. Instead a typical merchant agreement states that the credit card holder should not be disadvantaged for using their card to purchase product.

Which basically means that if the merchant is charging a ‘penalty fee' for using the credit card, then they are in breach of the terms and conditions of agreement.

 

You can file a complaint with the credit card company.

Customer: replied 7 years ago.

what do you mean it is not a law? It is in the California Civil Code - see link

 

http://caselaw.lp.findlaw.com/cacodes/civ/1747-1748.7.html

doesn't that make it a law?

I called my bank and they agreed it is not legal.

You mean to suggest I should agree to the service charge with the vendor and then dispute the charge with my credit card company?

Customer: replied 7 years ago.
Se esction 1748.1 of the civil code I sent to you...
“1748.1.
(a) No retailer in any sales, service, or lease transaction with a consumer may impose a surcharge on a cardholder who elects to use a credit card in lieu of payment by cash, check, or similar means. A retailer may, however, offer discounts for the purpose of inducing payment by cash, check, or other means not involving the use of a credit card, provided that the discount is offered to all prospective buyers.
(b) Any retailer who willfully violates this section by imposing a surcharge on a cardholder who elects to use a credit card and who fails to pay that amount to the cardholder within 30 days of a written demand by the cardholder to the retailer by certified mail, shall be liable to the cardholder for three times the amount at which actual damages are assessed. The cardholder shall also be entitled to recover reasonable attorney’s fees and costs incurred in the action.
A cause of action under this section may be brought in small claims court, if it does not exceed the jurisdiction of that court, or in any other appropriate court.”
Expert:  Ellen replied 7 years ago.
Obviously my answer was not correct. I shall opt out without charge. Sorry
Customer: replied 7 years ago.
so what happens now? does this get referred to another expert or???
Expert:  Ellen replied 7 years ago.
Yes. I will send it to an expert in CA law and also open the question to all experts. No action is required on your part.
Customer: replied 7 years ago.
Thank you!!
Expert:  socrateaser replied 7 years ago.

Hi,

 

Just to confirm your suspicions, Civil Code Sec. 1748.1 does in fact prohibit the agent's surcharge for the use of your credit card. The law is current, and has not been preempted or modified by any court deision or federal law.

 

Moreover, 1747.02(e) provides that: "'Retailer' means every person other than a card issuer who furnishes money, goods, services, or anything else of value upon presentation of a credit card by a cardholder." This clearly would include a real estate agent/broker offering vacation rental services.

 

So, if the agent refuses to withdraw the surcharge, then you would be entitled to demand a refund, which if not received within 30 days, would further entitle you to sue for triple damages (three times the surcharge, plus attorney's fees and costs, if you choose to hire a lawyer to sue on your behalf).

 

Even at three times the service charge, it may not be worth your while to sue. But, that's the limit of your legal recourse.

 

Note: this law is more intended to facilitate class action, by a large number of plaintiffs, all of whom were surcharged for their credit cards. For a single cardholder, the value is limited, unless you're using it to purchase a very high priced item and the surcharge is a percentage of the price.

 

Hope this helps.

 

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