CA re-aged account again

[rckstrscott]

Are you sure Santander is a collection company and they didn't become the OC of this auto loan? From my understanding, Santander bought a bunch of accounts from other auto lenders. Not junk accounts, but current ones as well (entire portfolios including good loans, bad loans) ect ect.. Not that it matters to much I suppose.. but I think they started listing accounts they recently came into contact with.. if you dispute it again thorugh EX, it will probably fall off again and (maybe) that is the last you will hear?  I don't know..

Santander is a joke. I have a voluntary repo that I settled with Citi 2 years before they purchased the accounts from Citi. The account was settled and negotiated to not display on my credit report. I even had it in writing from Citi. I owed Citi 0 dollars.

Santander decided to start reporting it in June of 2010. Great.... They are showing a 0 dollar repo. Like really guys?  I have it in writing that Citi considered the account closed and indicated it will not display on my credit report. So, Santander purchases the portfolio from Citi, legally they have to follow anything I had in writing with Citi... you can read the thread here:  http://ficoforums.myfico.com/t5/Rebuilding-Your-Credit/Critique-of-letter-to-Santander-Consumer-USA...

It's been a struggle to say the least, to the point where I am considering suing them just to tick em off ha

[Anonymous]

This is 'funny' that you guys are bringing up Santander.  I had the exact same thing happen to me as with Rckstrscott.

An auto loan that went into colloections and settled in 2007 with Soverign bank suddently re-appeared in late 2009 as a 0 balance Charge Off account.  Great so now it looks like I defaulted on 2 auto loans, both with a 20k orig balance?  I tried to dispute it with the CRA but to no avail.  I've given up at this point because I can't find any proof on my side that the loan was settled in 2007.   Since the difference is only about 2 years I may either just let it be, or fight it again when the 2007 debt is ready to come off.

[RobertEG]

A debt collector never, ever becomes a creditor, let alone an original creditor, by purchasing the debt.

They are attempting to collect debt you owed to a creditor.  You never had a personal credit account with them.

FDCPA 803(4) states:

"The term "creditor" means any person who offers or extends credit creating a debt or to whom a debt is owed, but such term does not include any person to the extent that he receives an assignment or transfer of a debt in default solely for the purpose of facilitating collection of such debt for another."

As for reaging a DOFD in order to get their collection posted to your CR, that is about as illegal as debt collection practices go.

The FCRA was modified back in 1996 by the addition of section 605(c) to prevent continued CR inclusion based on any date other than one date-certain, and that date is the DOFD on the OC account,  With the addition of section 605(c), setting the DOFD as one date-certain for continued CR inclusion, congress also added FCRA 623(a)(5) to clearly stipulate what can and cannot be reported as a DOFD.  It is section 623(a)(5) that they are apparently violating.

Section 623(a)(5) applies to any party who is associated with a collection referral, including the referring OC and the debt collector.  It clearly specifies what DOFD can be reported by a debt collector, and specific restrictions on what a debt collector must to to confirm accuracy of a DOFD before reporting it to a CRA.

The debt collector cannot report any DOFD that differs from the one reported by the OC.  FCRA 623(a)(5)(B)(i).

If the OC did not previously report a DOFD, then the debt collector must personally contact the OC to verify the accuracy of any DOFD they report.  FCRA 623(a)(5)(B)(ii).

In order to report any date of DOFD not provided by the OC, the OC must not have precviously reported a DOFD, and the debt collector, after taking reasohsble procedure to obtain the DOFD from the OC, was unable to get a date from the OC, then they can report a "faux" DOFD, but it can, under NO circumstances, report a date later than the date the account was placed into collection with them.  FCRA 623(a)(5)(B)(iii).

Those are the statutory provisions pertaining to reporting of a DOFD.

I would send a request to the CRA under FCRA 609(a)(1), requesting the name of the party who reported the DOFD that the CRA is now using, what date they reported, and when it was reported to the CRA.  Be sure to send the required check for $10.50 to cover the charge for information requests under section 609(a)(1).

[rckstrscott]

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@RobertEG wrote:

A debt collector never, ever becomes a creditor, let alone an original creditor, by purchasing the debt.

They are attempting to collect debt you owed to a creditor.  You never had a personal credit account with them.

FDCPA 803(4) states:

"The term "creditor" means any person who offers or extends credit creating a debt or to whom a debt is owed, but such term does not include any person to the extent that he receives an assignment or transfer of a debt in default solely for the purpose of facilitating collection of such debt for another."

As for reaging a DOFD in order to get their collection posted to your CR, that is about as illegal as debt collection practices go.

The FCRA was modified back in 1996 by the addition of section 605(c) to prevent continued CR inclusion based on any date other than one date-certain, and that date is the DOFD on the OC account,  With the addition of section 605(c), setting the DOFD as one date-certain for continued CR inclusion, congress also added FCRA 623(a)(5) to clearly stipulate what can and cannot be reported as a DOFD.  It is section 623(a)(5) that they are apparently violating.

Section 623(a)(5) applies to any party who is associated with a collection referral, including the referring OC and the debt collector.  It clearly specifies what DOFD can be reported by a debt collector, and specific restrictions on what a debt collector must to to confirm accuracy of a DOFD before reporting it to a CRA.

The debt collector cannot report any DOFD that differs from the one reported by the OC.  FCRA 623(a)(5)(B)(i).

If the OC did not previously report a DOFD, then the debt collector must personally contact the OC to verify the accuracy of any DOFD they report.  FCRA 623(a)(5)(B)(ii).

In order to report any date of DOFD not provided by the OC, the OC must not have precviously reported a DOFD, and the debt collector, after taking reasohsble procedure to obtain the DOFD from the OC, was unable to get a date from the OC, then they can report a "faux" DOFD, but it can, under NO circumstances, report a date later than the date the account was placed into collection with them.  FCRA 623(a)(5)(B)(iii).

Those are the statutory provisions pertaining to reporting of a DOFD.

I would send a request to the CRA under FCRA 609(a)(1), requesting the name of the party who reported the DOFD that the CRA is now using, what date they reported, and when it was reported to the CRA.  Be sure to send the required check for $10.50 to cover the charge for information requests under section 609(a)(1).

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No, but they can become an OC if they bought the OC's accounts, such as Santander did with their 3.2 billion dollar purchase of CitiFinancial's auto finance wing.. If you were making payments on a car for Citi, and now you pay Santander because of the Citi selling of your loan, Santander is the OC now. They are bound by your original contract to Citi.. making them the OC. That is what O6 explained on my previous thread. That was why I was asking to make sure Santander was a CA or not, because from my understanding, they aren't... they bought an entire portfolio..

So Robert, I ask you then... does that mean if Santander bought 3.2 billion in current and defaulted loans, on the current loans they are now the OC, but on the defaulted loans (old debt) they've become a collection company? I guess that could make sense... haha

-scott

-scott

[kisbel65]

OP hereantamder was not the original creditor in my case. My DOFD is 11/2002. It is clearly reaged (please see the orginal post below). I dont to want to hire a lawyer to make this people go away. I was able to have Santander deleted from TU and EX, but they are still calling my house (I do not pick-up). I have reported them twice to the State Attorney's office, but they still keep coming. I am at a lost as to what to do?????

Origiinal Post: To clarify, on my annual free credit report  from TU dated 5/5/2009 it stated the account was scheduled to be removed 8/2009.  On 8/30/2009 I ran a FICO/TU report and it had been removed. I get quartely reports from FICO/TU and on 3/3/2010 it reappeared under another name (a collection company). I disputed it and when I ran FICO/TU report in 4/29/2010 and it was deleted. In April 2011 I recieved my annual free credit report from EX and it is now on there (not TU). I have disputed it and as of today it is pending. The DOFD is 11/2002 (way past the 71/2 years).

[kisbel65]

OP hereantamder was not the original creditor in my case. My DOFD is 11/2002. It is clearly reaged (please see the orginal post below). I dont to want to hire a lawyer to make this people go away. I was able to have Santander deleted from TU and EX, but they are still calling my house (I do not pick-up). I have reported them twice to the State Attorney's office, but they still keep coming. I am at a lost as to what to do?????

[Anonymous]

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@kisbel65 wrote:

OP hereantamder was not the original creditor in my case. My DOFD is 11/2002. It is clearly reaged (please see the orginal post below). I dont to want to hire a lawyer to make this people go away. I was able to have Santander deleted from TU and EX, but they are still calling my house (I do not pick-up). I have reported them twice to the State Attorney'offoce, bu they still keep coming. I am at a lost as to what to do?????

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Santander Bank is new to the US market and bought various non-credit card portfolios from different lenders including, but not limited to, Citibank.  Santander also, obviously, being new to the market, has hired to wrong people to run it's credit bureau reporting operations.  I mean, being an Equal Opportunity Employer and all is great, but it does not mean you hire brain-dead individuals to run your credit bureau reporting.  But that's just what Santander did.  They understand basically nothing about credit reporting or how to comply with the FCRA / FDCPA and have re-aged literally millions of accounts either by design or neglect.       

The good news is you can educate them.  Once you slap them around a little bit they usually get the picture and correct their mistake.

Is Santander a debt collector or an original creditor?  Generally speaking, they are not a debt collector.  They are an original creditor in most cases that I have seen.  Robert's analysis is wrong.

FDCPA § 803. Definitions [15 USC 1692a]

(4) The term “creditor” means any person who offers or extends credit creating a debt or to whom a debt is owed, but such term does not include any person to the extent that he receives an assignment or transfer of a debt in default solely for the purpose of facilitating collection of such debt for another.

(6) The term “debt collector” means any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another. Notwithstanding the exclusion provided by clause (F) of the last sentence of this paragraph, the term includes any creditor who, in the process of collecting his own debts, uses any name other than his own which would indicate that a third person is collecting or attempting to collect such debts. For the purpose of section 808(6), such term also includes any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the enforcement of security interests. The term does not include—

Santander owns the entire portfolio of, say, Citibank's auto loans.  They most certainly, by any stretch of the imagination, did not buy the portfolio solely for the purpose of facilitating collection of the debt for a different entity.  Santander is a creditor.

Santander is a bank.  Their US operations are part of the Banco Santander Group, a long-standing bank in Spain and many parts of Latin America.  They are licensed in the US as a bank.  The principal purpose of Santander Bank is -- surprise, surprise -- being a bank and not debt collection.  As all banks are prone to do, they must at times collect from customers who go belly-up on them.  When this happens, Santander Bank is not collecting on debts owed or due another -- they collect on debts that are owed them.  Santander is not a debt collector.

While you cannot use the FDCPA against Santander, you can use the FCRA.

[Anonymous]

OP hereantamder was not the original creditor in my case. My DOFD is 11/2002. It is clearly reaged (please see the orginal post below). I dont to want to hire a lawyer to make this people go away. I was able to have Santander deleted from TU and EX, but they are still calling my house (I do not pick-up). I have reported them twice to the State Attorney'offoce, bu they still keep coming. I am at a lost as to what to do?????

[Anonymous]

Santander is run by a bunch of idiots. They purchased an auto loan of ours that had 3 payments left on it last year. Biggest headache ever. 4 years and 9 months of autopay and a headache -free autoloan turned into an absolute nightmare. I hope you are able to get them to go away for good.

[RobertEG]

The issue is far from clear, I admit.   That applies to both sides of the argument. 

The FTC, admittedly only in an advisory opinion, addressed  this issue in Staff Opinion Letter to Arbuckle, December 22, 1993.  It stated:

“Section 803(6) of the FDCPA defines the term "debt collector" as "any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another." In our view, a party that purchases delinquent accounts from the party to which the debts were originally owed and attempts to collect them from the consumer debtors fits clearly within that definition. The party is attempting to collect debts that were "owed or due another" and the fact that title to the accounts is passed to the collector in no way changes that fact.”

 “The only theory for exclusion of a party such as MCM from the "debt collector" definition (and thereby from coverage under the FDCPA) is that it is a "creditor." Section 803(4) defines "creditor" as "any person who offers or extends credit creating a debt or to whom a debt is owed, but such term does not include any person to the extent that he receives an assignment or trans-fer of a debt in default solely for the purpose of facilitating collection of such debt for another." Since the accounts that MCM buys are delinquent when purchased and are being transferred for the purpose of collection, we believe that MCM is within the class that the "creditor" definition expressly "does not include."(2) The words "for another" at the end of the clause excepting assignees from the definition of creditor in no way changes this result:

(T)he excluding factors in the exception are that the debts are the result of an assignment or transfer and that the debts were already in default at the time of assignment or transfer. With the phrase "for another" at the end of the exception, Congress merely intended that the debts should have originally belonged to another and that the creditor was therefore in effect a third-party or independent creditor. (Italics by court)

Kimber v. Federal Financial Corp., 668 F. Supp. 1480, 1485 (M.D.Ala. 1987). Accord, Holmes, supra, at 1293.

“In sum, it is our view that a party that obtains consumer obligations in default for the purpose of collection is a "debt collector" under the FDCPA, even if that party actually purchases the accounts from the original creditor.”

I dont think the argument is without basis.

[Anonymous]

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@RobertEG wrote:

The issue is far from clear, I admit.   That applies to both sides of the argument. 

The FTC, admittedly only in an advisory opinion, addressed  this issue in Staff Opinion Letter to Arbuckle, December 22, 1993.  It stated:

“Section 803(6) of the FDCPA defines the term "debt collector" as "any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another." In our view, a party that purchases delinquent accounts from the party to which the debts were originally owed and attempts to collect them from the consumer debtors fits clearly within that definition. The party is attempting to collect debts that were "owed or due another" and the fact that title to the accounts is passed to the collector in no way changes that fact.”

 “The only theory for exclusion of a party such as MCM from the "debt collector" definition (and thereby from coverage under the FDCPA) is that it is a "creditor." Section 803(4) defines "creditor" as "any person who offers or extends credit creating a debt or to whom a debt is owed, but such term does not include any person to the extent that he receives an assignment or trans-fer of a debt in default solely for the purpose of facilitating collection of such debt for another." Since the accounts that MCM buys are delinquent when purchased and are being transferred for the purpose of collection, we believe that MCM is within the class that the "creditor" definition expressly "does not include."(2) The words "for another" at the end of the clause excepting assignees from the definition of creditor in no way changes this result:

(T)he excluding factors in the exception are that the debts are the result of an assignment or transfer and that the debts were already in default at the time of assignment or transfer. With the phrase "for another" at the end of the exception, Congress merely intended that the debts should have originally belonged to another and that the creditor was therefore in effect a third-party or independent creditor. (Italics by court)

Kimber v. Federal Financial Corp., 668 F. Supp. 1480, 1485 (M.D.Ala. 1987). Accord, Holmes, supra, at 1293.

“In sum, it is our view that a party that obtains consumer obligations in default for the purpose of collection is a "debt collector" under the FDCPA, even if that party actually purchases the accounts from the original creditor.”

I dont think the argument is without basis.

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[Mod Cut]

MCM is a debt collector and always has been nothing more than a debt collector.  A debt collector who buys a debt is still a debt collector as their primary mission in life is to buy delinquent debts and then collect on them.  Santander Bank, on the other hand, buys entire portfolios than happen to include some delinquent accounts.  

If you had not snipped parts of the FTC Advisory we would see that there are several important distinctions the FTC made that do not apply here.

1.  MCM is known to purchase portfolios of delinquent accounts.  Santander Bank buys entire business operations.

2.  "Congress excludes those entities that extend credit from the effects of the Act."  Santander Bank extends credit.  MCM never has nor ever will. 

3.  "Congress intends to protect borrows from third parties who regularly collect debts for others."  MCM's business model is to buy debts and regularly collect them.  

Santander bank's business model is to buy portfolios which include, at times, a small percentage of delinquent accounts.  They do not regularly collect debts any more than Bank of America regularly collects debts.

4.  The term "creditor" "does not include any person to the extent that he receives an assignment or transfer of a debt in default solely for the purpose of facilitating collection of such debt for another."  Again, MCM's business model is to buy only delinquent debt and collect.  Santander Bank takes entire portfolios, a very small percentage of which are delinquent, and their sole business model is not simply to collect delinquent debts.

With your theory, when Bank A goes out of business and the FDIC brokers a sale to, say, Bank B, if any obligations to the bank are delinquent and Bank B tries to collect, they are debt collectors.  Not only is this absurd on its face, but courts have continually held that Bank B is, for all intents and purposes, not a debt collector.

[Mod Cut]

Let's just stick to the facts, shall we? ~ LilMirth

[kisbel65]

OP here: Sandanter was NOT my original creditor. The original creditor was TRIAD FINANCIAL. Could you elaborate on the use of FCRA?