Summary: CFPB examiners found banks charging a new non-sufficient funds fee every time a merchant re-presented the same unpaid check or ACH debit, and found core processors whose systems could not stop it. The CFPB called the practice unfair, disclosures or not, and by fall 2023 institutions were refunding over $22 million for these fees. The FDIC’s parallel guidance was rescinded in April 2026, so the CFPB’s findings are now the clearest public record of what examiners tested. The test itself is simple: group every NSF fee by the payment that caused it and count.
How re-presentment creates repeat fees
The fall 2023 edition of Supervisory Highlights describes the cycle. A re-presentment “occurs when, after declining a transaction because of insufficient funds and assessing an NSF fee for the transaction, the consumer’s account-holding institution returns the transaction to the merchant’s depository institution, and the merchant presents the same transaction to the consumer’s account-holding institution for payment again.” If the balance is still short, the bank “again returns the transaction to the merchant and assesses another NSF fee for the transaction.”
The March 2023 edition says the second presentment can arrive “potentially as soon as the next day.”
For a lender the item is usually its own loan payment. The lender did not charge the fee, but its retry caused the second presentment.
What the Supervisory Highlights found
The March 2023 edition covered examinations completed between July 1, 2022 and February 1, 2023. Examiners “found that institutions engaged in unfair acts or practices by charging consumers multiple NSF fees when the same transaction was presented multiple times for payment against an insufficient balance in the consumer’s accounts.” The harm was “several million dollars to tens of thousands of consumers over the course of several years.” The institutions “agreed to cease charging NSF fees for unpaid transactions entirely” and were directed to refund consumers.
The fall 2023 edition covered examinations completed between February 2023 and August 2023. Examiners found institutions charged re-presentment fees “without affording the consumer a meaningful opportunity to prevent another fee after the first failed representment attempt.” The injury was “not reasonably avoidable by consumers, regardless of disclosures in account-opening documents.” A clear fee schedule did not cure it.
The dollar figure is specific. For re-presentment NSF fees, “institutions are refunding over $22 million to consumers in response to Supervision directives since CFPB initiated this set of work in 2022.” For all topics in the edition, the total was “over $140 million.”
One finding is aimed at lenders rather than banks. The March 2023 edition reports that payday, installment, title and line-of-credit lenders, “after unsuccessful debit attempts, split missed payments into as many as four sub-payments and simultaneously or near-simultaneously represented them to consumers’ banks for payment via debit card.” Lenders were directed to remediate, to stop re-presenting “without first obtaining the consumer’s authorization as to the manner and timing of the re-presentments,” and to stop splitting payments unless the consumer has time between attempts to act.
Default system settings as a hidden risk
The fall 2023 edition cites core processors directly. Examiners concluded that “core processors engaged in an unfair act or practice by contributing to the assessment of unfair NSF fees on re-presented items.” The mechanism was a system limit: “the core processor platforms did not allow financial institutions to refrain from charging more than one NSF fee per item without discontinuing NSF fees altogether or manually waiving individual fees.” A bank on the default configuration charged the second fee whether or not anyone decided to.
The CFPB also said it intended to review originating institutions, the lender’s side of the debit, “to ensure that represented transactions are coded properly to enable systems to identify the relevant transactions efficiently.”
A second hidden risk sits in the remediation itself. Some institutions “used incomplete reports that only captured certain re-presentment NSF fees.” The reports “captured consumer accounts that were charged NSF fees on checks only, or on both checks and ACH transactions. Yet they omitted consumer accounts that were assessed NSF fees solely on ACH transactions.”
Where the FDIC guidance stands
FIL-40-2022, issued August 2022, said multiple fees for one transaction raised “heightened risks of violations of Section 5 of the Federal Trade Commission (FTC) Act,” as deception where disclosures fell short and as unfairness where fees came “in a short period of time without sufficient notice or opportunity for customers to bring their account to a positive balance.” Its mitigating practices included “Declining to charge more than one NSF fee for the same transaction, regardless of whether the item is re-presented” and disclosing “whether multiple fees may be assessed,” “the frequency with which such fees can be assessed” and “the maximum number of fees that can be assessed in connection with a single transaction.”
FIL-32-2023, issued June 16, 2023, kept that text and softened the lookback: the FDIC “does not intend to request an institution to conduct a lookback review absent a likelihood of substantial consumer harm.”
FIL-14-2026, issued April 10, 2026, rescinded FIL-32-2023 “effective immediately.” The FDIC concluded the guidance was “overly broad in scope and has raised uncertainty regarding when, for instance, disclosures regarding re-presentments may result in ‘unfairness’ concerns under Section 5 of the Federal Trade Commission Act.” What remains is one sentence: “Supervised institutions should ensure their disclosures to consumers accurately reflect their practices and are provided in accordance with applicable laws, regulations, and other current legal requirements.”
So in October 2026 there is no FDIC-specific guidance on re-presentment fees in force. Section 5 and the CFPA’s prohibition on unfair acts are unchanged, and the CFPB’s 2023 findings have not been withdrawn. The three disclosure items the FDIC listed in 2022 are still a reasonable way to read an account agreement, even if the agency no longer publishes them.
Testing: group fees by original payment
The test needs a full transaction history, not a sample, because the pattern concentrates in a few accounts.
- Pull every NSF or returned-item fee in the period, for checks and ACH both. A report built from one channel repeats the error examiners found.
- For each fee, attach the item that triggered it: payer or originator name, amount, presentment date, return date and the trace or check number where the originator preserves it.
- Group items that share an originator and amount, where a later presentment falls within thirty days of a return.
- Count fees per group. More than one is a candidate finding.
- For each candidate, read the account agreement against the three disclosure items above, then check the elapsed time between the first return and the second fee.
A fictional example. A $150 ACH debit is presented March 3 and returned, with a $30 fee. The originator retries March 5. Returned, another $30 fee. A third try on March 12 clears. Grouped by originator and amount, that is one payment, three presentments, two fees. The second $30 is the candidate for refund, and the two-day gap is the fact an examiner would ask about.
Lenders on the originating side run the mirror test on their own debit files: every retry after a return, whether it was split, whether it went the same day, and whether the borrower authorized its manner and timing.
How the automated version works
MightyBot is an AI agent platform for lending and finance. Agents run the grouping above on every account and every loan, against rules written in plain English: one fee per original payment, a disclosure that states the maximum, no same-day re-presentment of a split debit without authorization. Each finding cites the transactions behind it, and exceptions route to a person for review before any refund or borrower contact. See compliance monitoring and the policy engine.
