Author Topic: re-aging acct. by incorrectly reporting Status & last pymt date to credit bureau  (Read 812 times)

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proveit81

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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.’[132] 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."[42] Although Toliver has produced copious evidence as to the business practices of factoring companies, she does not appear to contest this characterization.[43] 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."[44] 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
Page 36
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). "


« Last Edit: December 29, 2014 09:51:30 PM by proveit81 »

Brunothe JDBKiller

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Did they change the DOFD by two years? That violates the FCRA if they did. If they accurately reported the DOFD but just did it two years later, I don't see how it violates. They'll just argue they gave you a free ride for two years. It will fall off on the same date it would have originally, so no harm done. I don't think the FDCPA applies unless they re=aged it, that could be a violation.

The problem with mixing FCRA and FRCPA claims is that it is undecided in most circuits whether reporting is considered collection activity.
« Last Edit: December 30, 2014 03:35:07 PM by Brunothe JDBKiller »
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

proveit81

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Bruno,

The "date of status" re-ages the account by two years.  In the opinion I cited, the judge states that "status date" is the date of last payment on the account.  By changing the status date the debt collector has re-aged the account (in this case, the time the account may legally be reported to credit bureaus): The "status date" on the credit bureau records reflects the date of last activity, payment, on the account.  I never made payment after 1st delinquency.

The meaning of the date of first delinquency or date of 1st major delinquency is different than the meaning of the status date.  The delinquency date is the date from which debt buyer has the right to sue. In contrast, the status date reflects most recent activity, payment, and the debt buyers right to report negative information on a debtor's reports. 

Once a debtor makes a payment, the debtor resets the clock for time it will remain on credit report.  I never made payment to debt collector.  It is unconscionable and illegal for the debt collector to state a payment was made, when a payment was never made.  The debt collector is re-aging account and the time it may legally remain on my credit records.

Re-aging occurs when a creditor or collection agency reports a more recent status date which extends the 7.5 year period a negative account may legally remain on your credit reports.

I can hold the collector liable after disputing the debt. If the dispute comes back as verified I have a solid lawsuit against the collector under 15 USC 1692e(2)(A) (see Rosenberg v Calvary, 2005).

The question is if I am in the middle of a suit with debt collector, should I verify debt with bureaus 1st before I move to include a counterclaim?  I believe I have a better shot if I verify, but still a shot if I don't verify it. Regardless, this is a violation as the debt buyer has reported the debt inaccurately. 

No?

Brunothe JDBKiller

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That was my basic question, if they re-aged it by changing the date by two years. That wasn't clear. I would send them some discovery about that supposed payment. If that's the basis for their reporting and they can't prove it, you should have them. Verifying would help. I think that would be a stronger FDCPA violation.

I seem to remember that if you don't ask for verification, it limits your ability to sue. It was Longman v. Wachovia, which outlines how to process one of these.
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

proveit81

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Thanks, Bruno.  I'll let you know how it turns out. 

Still waiting on motion date for order to compel arbitration or stay.

I have other violations already for this case, but happened to notice this one also.

I may be able to use this violation for other debt collectors in future.  It seems they all like to re-age.

Brunothe JDBKiller

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They also  like to fake payments to extend the statute of limitation to sue.
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

proveit81

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True.  Even more egregiously illegal.

Thanks.

BellEbutton

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I take it that you've already disputed that date with the credit reporting agencies?

proveit81

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No I haven't with respect to current case; this one has a suit in motion (I am waiting for motion date for arb or stay). 

I will probably dispute others in order to solidify my claim. 

Chances are they will probably correct misinformation and leave me w/o violations.  However, the chance of dispute being ignored or not investigated are probable too. 

I should word it like an idiot, so they can bully me around.  lol

proveit81

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dear credit bureau,

I am disputing an problem on my report.  I don't know why you or someone else put down that my date of status is ____.  This is so wrong.  I need to know when my status changed.  I need to know why my status changed.  I need to know who changed my status.  Why is the status on account #_______________,    _date_____.  That is what _____ says my status is.  I want you to see why.  Also who is ___this person____debt collector?  Who am I supposed to pay if it is true?

Thank you.

Sincerely,

Dumb Informed Consumer, ready to sue your *** for not taking me seriously.

BellEbutton

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The reason I asked is that in order to claim that a furnisher has reported incorrect information, you have to dispute with the CRAs.  If you don't do so before filing suit against the furnisher, you don't have a claim under the FCRA.

Flyingifr

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dear credit bureau,

I am disputing an problem on my report.  I don't know why you or someone else put down that my date of status is ____.  This is so wrong.  I need to know when my status changed.  I need to know why my status changed.  I need to know who changed my status.  Why is the status on account #_______________,    _date_____.  That is what _____ says my status is.  I want you to see why.  Also who is ___this person____debt collector?  Who am I supposed to pay if it is true?

Thank you.

Sincerely,

Dumb Informed Consumer, ready to sue your *** for not taking me seriously.

Try this:

Dear Credit Bureau:

I take issue with the trade line from Scumbucket Collections. They have re-aged this account - the Status Date is wrong. Please correct it.

Sincerely......


to be sent 30 days after you send a similar letter to Scumbucket Collections.

When Scumbucket Collections verifies the TL as accurate, you sue them for $2,000 - $1000 for the FCRA violation of deliberately reporting incorrect information and $1,000 for the FDCPA of misrepresenting the nature of the debt.

You notify Scumbucket Collections of the misreporting FIRST. That way when they reaffirm the TL with the CRA they did so knowingly, and if they failed to report it as "disputed" you have another FCRA claim.
BTW-the Flyingifr Method does work. (quoted from Hannah on Infinite Credit, September 19, 2006)

I think of a telephone as a Debt Collector's crowbar. With such a device it is possible to pry one's mouth open wide enough to allow the insertion of a foot or two.

Morality of Debt? No one ever went to the Nether Regions for not paying a debt.

Founder of the Credit Terrorist Training Camp (Debtorboards)

proveit81

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Okay, I may make some modifications.  LOL and thanks.

oldntired

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Try this:

Dear Credit Bureau:

I take issue with the trade line from Scumbucket Collections. They have re-aged this account - the Status Date is wrong. Please correct it.

Sincerely......


to be sent 30 days after you send a similar letter to Scumbucket Collections.

When Scumbucket Collections verifies the TL as accurate, you sue them for $2,000 - $1000 for the FCRA violation of deliberately reporting incorrect information and $1,000 for the FDCPA of misrepresenting the nature of the debt.

You notify Scumbucket Collections of the misreporting FIRST. That way when they reaffirm the TL with the CRA they did so knowingly, and if they failed to report it as "disputed" you have another FCRA claim.

In your letter to Scumbucket Collections do you tell them they have the wrong dates or numbers, or do you ask them just to verify their numbers and dates that they have?

ProSeCanYouSee

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Try this:

Dear Credit Bureau:

I take issue with the trade line from Scumbucket Collections. They have re-aged this account - the Status Date is wrong. Please correct it.

Sincerely......


to be sent 30 days after you send a similar letter to Scumbucket Collections.

When Scumbucket Collections verifies the TL as accurate, you sue them for $2,000 - $1000 for the FCRA violation of deliberately reporting incorrect information and $1,000 for the FDCPA of misrepresenting the nature of the debt.

You notify Scumbucket Collections of the misreporting FIRST. That way when they reaffirm the TL with the CRA they did so knowingly, and if they failed to report it as "disputed" you have another FCRA claim.

We have a similar situation with OC changing the Status Date from Aug. 2009 to Mar. 2011, even though date of last payment was Aug. 2009.

OC sold account to JDB with whom we were awarded free money and settled same $30k+ for less than $3k.

Question is, therefore, is the Verification letter sent to OC, then the CRA and would the Settlement docs be sent to OC?  Thanks.