The date of 1st delinquency or date of 1st major delinquency and date of status is reported 2 years after last payment to original creditor? Is this a FDCPA violation...Violating FDCPA 15 USC § 1692e(2) & (8 ) debt collector's miscommunication with credit bureau/misrepresenting debt/ character of debt.
Below you will find the link to the 2013 opinion of a Federal District Court. Although this matter involved violations against a Credit Bureau, I believe that this language may be useful for claims against debt collectors. (IDK why a portion of this is crossed out and how to undo it--but please read the crossed out section!)
“Here, Toliver's Experian credit reports contained a "Date of status" that a reasonable jury could find misleading, and Experian "could have uncovered the inaccuracy `if it had reasonably reinvestigated the matter.'" DeAndrade, 523 F.3d at 68 (quoting Cushman, 115 F.3d at 226). Experian asserts that in response to Toliver's December 2011 dispute letter it ‘explained that the status date of an account can change from month to month, for example, if Ms. Toliver had begun paying on the account and creating good credit history.’ However, Experian has produced no evidence that it ever inquired into whether Toliver actually made any payments, or whether her account's status had changed in any way…Thus, on the evidence presented and drawing all inferences in a light most favorable to Toliver, summary judgment on Toliver's § 1681i(a) claim regarding the "Date of status" entry must be denied.”
"Experian characterizes factoring companies as "specialized debt buyer
generally focusing on the purchase of accounts receivable." Although Toliver has produced copious evidence as to the business practices of factoring companies, she does not appear to contest this characterization. Instead, Toliver argues that certain debt buyers who also qualify as debt collectors under § 1692 must be separated from other debt buyers and categorized differently, lest the debt collector be permitted to "masquerade as a factoring company." But § 1681e(b) imposes no such requirement."
The status date on my credit record does not reflect the last payment I made and re-ages the debt or communicates that the debt is more current than it actually is, thereby further damaging my FICO score and the time it may remain on my credit record (if I hadn’t found the discrepancy).
I believe the debt collector should have known or acted negligently regarding this misrepresentation.
I hardly believe this is a bona fide error. See below:
"I. Collector's bona fide error defense., 15 U.S.C. Section 1692k(c).
1. Limited defense available only for violations resulting from unintentional error notwithstanding maintenance of reasonable procedures adopted to avoid the error - Fox v. Citicorp Credit Services, Inc., 15 F.3d 1507 (9th Cir. 1994) (The bona fide error defense is an affirmative defense, for which the debt collector has the burden of proof.) The defense requires the debt collector to show that it maintains procedures to avoid errors. It fails to meet its burden when it does not produce evidence of reasonable preventive procedures aimed at avoiding the specific errors at issue. Clark v. Capital Credit & Collection Services, Inc., 460 F.3d 1162 (9th Cir. 2006). Loose, indefinite, and unpredictable procedures that are not reasonably adapted to avoid violating the FDCPA will prevent the “bona fide error” defense from applying. Ramirez v. Apex Financial Management, LLC and Hilco Receivables, LLC, 567 F. Supp. 2d 1035, (N.D. Ill. 2008).
2. Mere fact that error was unintentional is insufficient - Russell v. Equifax A.R.S., 74 F.3d 30 (2nd Cir. 1996). The defense involves a two step inquiry – first, whether the debt collector maintained, i.e., actually employed and implemented, procedures to avoid errors, and second, whether the procedures were reasonable adapted to avoid the specific error at issue - Johnson v. Riddle, 305 F.3d 1107 (10th Cir. 2002). To qualify for the bona fide error defense, the debt collector has an affirmative obligation to
maintain procedures designed to avoid discoverable errors – Reichert v. National Credit Systems, 531 F.3d 1002 (9th Cir. 2008).
a. The bona fide error defense requires more than a mere assertion to that effect. The procedures must be explained, along with the manner in which they were adapted to avoid the error - Reichert v. National Credit Systems, 531 F.3d 1002 (9th Cir. 2008), citing Wilhelm v. Credico, Inc., 519 F.3d 416 (8th Cir. 2008).
b. Summary judgment for debt collector affirmed based on its showing that its procedures were reasonably adapted to prevent the type of error that occurred – Wilhelm v. Credico, Inc., 519 F.3d 416 (8th Cir. 2008). "