Cap One non-collection collection accounts & NY FCRA

[Anonymous]

So the good news is that I got a JCrew/WFNNB account deleted under the NY FCRA 5 year rule.  I had previously gotten the associated LVNV account deleted because LVNV reported late payments after I PIF.  So that was good news.

But Cap One!  I have two old Cap One accounts that have DOFDs  in June 2004 and October 2003.  On previous credit reports it showed them coming off after 7 years in 2010 and 2011.  I wrote a letter to dispute.  I thought they should delete under NY's 5 year rule, but instead they "updated".  So the DOFD 10/03 account now will come off in 5/10, and the DOFD 6/04 account will now come off in 10/10.  So earlier than the old reports, but still not the 5 year rule.

So I called Experian, stated several times that I was not disputing anything but just looking for more information, and eventually got transferred to someone who could answer my questions.  So my question was basically what date were they counting from, and why do they think the 5 year NY rule doesn't apply to me.

Turns out we were on the same page with the DOFDs, but they don't consider the two accounts to be paid collections.  I told them that my position was that they were definitely collection accounts, and that Cap One treated them as such, even though they didn't go to an external CA.  One of the accounts, they sued me, so that was definitely a collection account, right?  Experian said no, it has to do with how Cap One reports the accounts, and Cap One has never reported that these accounts were collection accounts.  So EX is just treating this like a normal account and using the 7 year rule.

So what's next?  Any reason I would want to write Cap One and try to get them to report these accounts as collection accounts?  I will search through my papers and see if I have any "collection notices" from Cap One on either account.  Any idea why an account that they sued on is not considered a collection account?  If that's not collection what is?

[Anonymous]

Quick question.  What's the 5 year rule.  I have some of the same issues you do with CapOne.

[Anonymous]

It only applies to NY residents.

NY's FCRA is stricter than the federal FCRA.  The rule is that paid collections and paid judgment may only report for five years after the DOFD.  The usual rule is 7 years after DOFD.

Check your state resources (in the stickied threads) to see if your state has any FCRA quirks.

[RobertEG]

My reading. 

If Cap1 was the OC, I would tend to agree with what the CRA told you.

CA reporting is done by a third party debt collector, as defined in FDCPA 803(6). 

OC reporting is not governed by the FDCPA.

So if there was no CA reporting, you dont have a true collection account on your CR.

Bringing suit for collection of a debt may be done by the OC if they still own it, without any collection account having been posted to your CR.

If NY statute only refers to collection accounts, then the FCRA would apparently control.. 

Each prior delinquency on the OC account must expire 7 years from its delinquency date, pursuant to FCRA 605(a)(5).

If the OC additionally reported a charge off of the debt against their profit/loss, that separate CO posting can be reported for up to 7 1/2 years from the DOFD, pursuant to FCRA 605(c).

[RobertEG]

Here is the governing NY statute, as set forth in section 380(j)(a)(iv) of the NY FCRA:

“accounts placed for collection or charged to profit and loss which antedate the report by more than seven years; or accounts placed for collection or charged to profit and loss, which have been paid and which antedate the report by more than five years;”

The NY "five year rule" only kicks in if you have paid in full.  Otherwise, it is the same as the 7 years under the FCRA.

[Anonymous]

Thanks Robert, and I agree.  I thought that the OR was the operative word in all of this because both accounts were definitely charged off.

DOFD 6/04 was COed in 11/04 and

DOFD 10/03 was COed in 3/04

The DOFD 10/03 was (in my mind) paid in full because they got a judgment against me and I paid the full amount of the judgment--balance, attorney's fees, etc.  But my report still shows "paid in settlement".  I think this is incorrect, but I have not ever disputed that little piece.  (too many bigger fish to fry)

The DOFD 6/04 account was paid, but for a settlement amount, so I don't dispute the "paid in settlement" notation on that account.

In the statute, "paid" might very well mean PIF, which one was and one wasn't, but they are considered "paid" by CapOne.

I'm not sure I completely agree with you on the OC vs. CA reporting issue, just because I've had several OCs over the years that specifically indicate that the account is "in collection".  I think that those kinds of OC accounts would be need to comply with NY FCRA 5 year rule.

I might try to convince the CRA (currently EX) that the OR is the operative word, and that it is clear that both were COed, and that they were both paid.  I have a feeling that my person won't go for it (I have an assigned EX person because of a different ongoing dispute).  I'm debating trying to get CapOne to report that these accounts were collection account, but I suspect that they won't go for it.  I may also try sending them a strongly worded letter about complying with NY's FCRA just to see if they'll go for it . . .

Any other thoughts??

[Anonymous]

Bumping so I don't hijack the other thread.  Sidewinder, I'd love your help.

Haven't done anything because I'm wallowing.

The DOFD 6/04 account was charged off 11/04.

The DOFD 10/03 account was charged of 3/04.

Message Edited by jesslyn on 06-19-2009 07:18 AM

[Anonymous]

Do the accounts show a $0 balance? If so, I'd say they are paid. Plus, the CRA is not arguing the removal based on paid vs paid in settlement, they are saying the accounts do not fit because they are not "collection accounts". It doesn't matter, the law says "accounts placed for collections or charged to profit and loss".

I have heard of OC accounts being removed under the 5 year rule for NY residents when a settlement was accepted and when there was no CA reporting.

I would write a well-worded letter to EX, send it CMRRR.

I would copy the state statute, highlighting the portion that says "or charged to profit and loss" and include a portion of your report, highlighting where the accounts show they are charged off.

I would let the CRA know, as nicely as possible, that if these accounts remain at the end of a 30 day investigation period, you will file complaints with the NY AG for willfully violating NY statute (insert statute number).

Include proof you are a NY resident and make mention in the letter that you are including that proof.

[Anonymous]

The accounts show $0 balances.

Just got EX's response today, and no change.  The accounts are still reporting.

I did send a letter to Cap1 too, so maybe that will shake something loose.  It's just that the statute only appears (to me) to apply to the CRAs, not to the creditors.  So we'll see.

In the meantime, I guess it's back to the New York State Attorney General's Office.

[Anonymous]

Thrilled to report that though Experian refused to see the light, Capital One did!

Got a letter today for each account, both dated 7-30-09.  They said they'd delete from all three, even though EQ and TU already deleted on their own.

Still can't believe that EX refused to abide by the statute, but glad I didn't have to go through NYS AG's again--don't want to abuse my peeps there.

So here's something we don't see all that often:  Thanks Cap 1!