Date opened question

[Downto0]

Scuba, looks like you have the same problem I do.  I read a little further in the fcra and found this:

623(5)(B) Rule of construction. For purposes of this paragraph only, and provided
that the consumer does not dispute the information, a person that furnishes
information on a delinquent account that is placed for collection, charged
for profit or loss, or subjected to any similar action, complies with this
paragraph, if--

(i) the person reports the same date of delinquency as that provided by the
creditor to which the account was owed at the time at which the
commencement of the delinquency occurred, if the creditor previously
reported that date of delinquency to a consumer reporting agency;

This pretty much states that a debt buyer must list the same delinquency date as the OC.  In my case, even though the OC listed a delinquency the debt buyer listed my account as recently delinquent.

Norman, I have not received any communication from my debt buyer.  I have never refused to pay them.  The argument you suggested for them listing their own Date Major Delinquency 1st reported won't work especially since it is 5 years older than what the OC reported.

My debt buyer communicated false information to the CRAs which is an unactionable fcra claim but a very actionable fdcpa claim.  And, it is an attempt to reage my account.  Why else list their own opening date and Date Major Delinquency 1st reported?  The thing is, debt buyers do this sort of thing all the time because no one challenges them.  Even if I do sue them and collect a few thousand dollars, they'll keep listing the accounts as looking newer than they are because they make tons of money from the consumers who do not challenge their method of reporting.  In short, they don't mind paying me "go away money" because then they can get back to their business of extortion.

And, I don't think the DOFD is the date used to calculate the 7 1/2 years for when the account drops off the credit report.  The consumer could have several lates and still have an account in good standing.  Date of Major Delinquency, from my understanding, is where the consumer made the last payment before going into final permanent delinquency.  That would be the date to use for calculating when the derogatory account should drop off the cr.  

[Anonymous]

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@Downto0 wrote:

Scuba, looks like you have the same problem I do.  I read a little further in the fcra and found this:

623(5)(B) Rule of construction. For purposes of this paragraph only, and provided
that the consumer does not dispute the information, a person that furnishes
information on a delinquent account that is placed for collection, charged
for profit or loss, or subjected to any similar action, complies with this
paragraph, if--

(i) the person reports the same date of delinquency as that provided by the
creditor to which the account was owed at the time at which the
commencement of the delinquency occurred, if the creditor previously
reported that date of delinquency to a consumer reporting agency;

This pretty much states that a debt buyer must list the same delinquency date as the OC.  In my case, even though the OC listed a delinquency the debt buyer listed my account as recently delinquent.

Norman, I have not received any communication from my debt buyer.  I have never refused to pay them.  The argument you suggested for them listing their own Date Major Delinquency 1st reported won't work especially since it is 5 years older than what the OC reported.

My debt buyer communicated false information to the CRAs which is an unactionable fcra claim but a very actionable fdcpa claim.  And, it is an attempt to reage my account.  Why else list their own opening date and Date Major Delinquency 1st reported?  The thing is, debt buyers do this sort of thing all the time because no one challenges them.  Even if I do sue them and collect a few thousand dollars, they'll keep listing the accounts as looking newer than they are because they make tons of money from the consumers who do not challenge their method of reporting.  In short, they don't mind paying me "go away money" because then they can get back to their business of extortion.  Look, If you can prevail in court with such an argument, more power to ya. I just don't think you will be successful.

And, I don't think the DOFD is the date used to calculate the 7 1/2 years for when the account drops off the credit report.  The consumer could have several lates and still have an account in good standing.  Date of Major Delinquency, from my understanding, is where the consumer made the last payment before going into final permanent delinquency.  That would be the date to use for calculating when the derogatory account should drop off the cr.  Clearly you do not understand what DoFD is. Several lates and then the account being in good standing for a period of time do not constitute DoFD. Those are simply lates that have their own 'lifespan' of 7 years. They will disappear from your report before the CO/Collection does. DoFD is defined as the earliest delinquency from which the account does NOT RECOVER from. It usually progresses like this - 30 - 60 - 90 - 120 - 120 -120 - CHARGE OFF. That first 30 immediately preceding the CO is the DoFD. Now if you have an account that looks like this - 30 - ok - ok - 30 - 60 - ok - ok - 30 - 60 - 90 >>CO, then the DoFD is NOT the very first 30, its the third one. Again DoFD is DEFINED under Statute Law. "Major Delinquency" IS NOT DEFINED under the law. It is what THEY (the CA's) say it is. You can argue the point all you like but in a court of law its a losing argument, IMO.

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[Downto0]

The real problem is that neither DOFD or DOMD (date of major delinquency) is defined anywhere.  Here's what the fcra says concerning the 7 1/2 rule:

605(c) Running of Reporting Period

(1) In general. The 7-year period referred to in paragraphs (4) and (6) 3 of subsection
(a) shall begin, with respect to any delinquent account that is placed for collection
(internally or by referral to a third party, whichever is earlier), charged to profit and
loss, or subjected to any similar action, upon the expiration of the 180-day period
beginning on the date of the commencement of the delinquency which immediately
preceded the collection activity, charge to profit and loss, or similar action.

Nothing about DOFD or DOMD.  "Date of the commencement of the delinquency".  Other sections of the fcra will say "date of delinquency".    In fact, I did a complete search of the fcra and found nothing.  I believe that the only reason that we have these two terms is because sometimes the CRAs list them...most of the time they do not.

So, according to how I understand the fcra, The only date used to calculate the 7 1/2 period is the date immediately before the delinquent account is sent to collections, or the delinquent account is charged to profit and loss, or similar actions.  

This date never changes.  Successive collectors must use the same date.  The only leg they may have to stand on is what you suggested earlier.  And that is if the collector has contacted the debtor about the debt and the debtor refuses to pay.  However, I would argue that since the delinquent account is the same as the OC's then the account status must remain the same except for the name of the new collector and similar facts which do not affect the account status.  

I don't believe the collectors can make up their own dates different than the OCs when those dates concern the opened date, or DOFD, or DOMD, or the amount owed, etc.  I threw in the "amount owed" because I know for a fact that the collector cannot change these amounts by adding interest or any other add-on charges such as services rendered by the collector.  Basically, the collectors buy the debt for pennies on the dollar...much less for zombie debt...and the law allows them to collect the original amount

Where do you get your information?  

[Anonymous]

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@Downto0 wrote:

The real problem is that neither DOFD or DOMD (date of major delinquency) is defined anywhere.  Here's what the fcra says concerning the 7 1/2 rule:

605(c) Running of Reporting Period

(1) In general. The 7-year period referred to in paragraphs (4) and (6) 3 of subsection
(a) shall begin, with respect to any delinquent account that is placed for collection
(internally or by referral to a third party, whichever is earlier), charged to profit and
loss, or subjected to any similar action, upon the expiration of the 180-day period
beginning on the date of the commencement of the delinquency which immediately
preceded the collection activity, charge to profit and loss, or similar action.

Nothing about DOFD or DOMD.  "Date of the commencement of the delinquency".  Other sections of the fcra will say "date of delinquency".    In fact, I did a complete search of the fcra and found nothing.  I believe that the only reason that we have these two terms is because sometimes the CRAs list them...most of the time they do not. FCRA does not use the exact terminology of "DoFD", it uses 'commencement of delinquency' - but its understood (by the courts and the CRA's) to be the same thing, and its well defined in that statute.

So, according to how I understand the fcra, The only date used to calculate the 7 1/2 period is the date immediately before the delinquent account is sent to collections, or the delinquent account is charged to profit and loss, or similar actions.  Yes, and its commonly referred to as the DoFD.

This date never changes.  Successive collectors must use the same date.  The only leg they may have to stand on is what you suggested earlier.  And that is if the collector has contacted the debtor about the debt and the debtor refuses to pay.  However, I would argue that since the delinquent account is the same as the OC's then the account status must remain the same except for the name of the new collector and similar facts which do not affect the account status.  Yes, the DoFD must remain the same. Sometimes they will try to change it, and thats illegal.

I don't believe the collectors can make up their own dates different than the OCs when those dates concern the opened date, or DOFD, or DOMD, or the amount owed, etc.  I threw in the "amount owed" because I know for a fact that the collector cannot change these amounts by adding interest or any other add-on charges such as services rendered by the collector.  Basically, the collectors buy the debt for pennies on the dollar...much less for zombie debt...and the law allows them to collect the original amount  Unfortunately, what you or I believe may or may not be supported by case law. Regarding the DoFD, yes that date is written in stone, but the others... well, show me some case law supporting your belief. And the law *does* allows the accumulation of Statute interest usually defined by state law, or contract interest, whichever applies - I don't think it should - not on debt purchased at a 90-97% discount, but it does. IMO, the be 'fair', the law should only allow such interest for the OC, and on purchased debt it should accumulate on the purchased price, not the face value. I also think the price paid for the debt should become part of the debts record as well - But I don't make the rules....unfortunately.

Where do you get your information? What information are you referring to specifically? Most of my knowledge has been picked up here in these forums and on www.debtorboards.com. I suggest you visit that forum as well, and pose these questions there. Those folks have a lot of experience both defending JDB suits and bringing FDCPA/FCRA suits.   

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Look, I really do not disagree with you in spirit. I think JDB's are the lowest of the low. I think that Junk Debt buying should be ILLEGAL unless purchased directly from the OC. But it ain't likely to happen in the near future and I am a realist, not an idealist. Gotta work with the system we HAVE, not the system we WANT.

[Downto0]

I've been to debtorboards.  There are some people, not lots, who can give legal reference but those few are drowned out by a bunch others who like to flame or push buttons.  It's had to get the good guy involved in a topic when the flaming starts.  The flamers kept telling me that I could not do what I wanted to do but I did it anyway and got a $2,000 judgment against a major debt buyer.  I would not recommend that anyone waste their time at debtorboards.

I'm reading through some case law on DOFD, although I had to do a search on date of first delinquency.  The cases do use the term date of first delinquency.  The Date of Major delinquency 1st reported comes up but is not defined...probably because date of first delinquency is the issue.  

On the interest issue, as I have already stated, the debt buyer can ask for interest according to their particular state's interest rates, but they have to ask and the judge has to approve.  If they start charging interest before that time then they have just violated the FDCPA.  This is the case my attorneys used to win my case:

http://scholar.google.com/scholar_case?case=5126261184312409199&q=Simkus+v+cavalry+portfolio&hl=en&a...

When I find a good case which deals with the issue of changing the OC's reported information, such as date opened, then I will post that as well.  However the fcra demands that all information reported must be accurate, complete, and clear.  If any one of those requirements is missing then there is a violation.

[Anonymous]

I have to admit I'm confused as to how that case supported your contention. Seems like the judge ruled in favor of the CA? Other than saying the "waiver of interest by BOA" issue had to be ajudicated, I'm not clear on what applied to your case. ? Is there more to the case than whats in that link? It references going to trial but I don't see anything about the final resolution at trial.

What am I missing here? I see several references to cases that *seem* to support the adding of interest by a CA:

"Although courts have found that lumping charges without explanation is confusing to the unsophisticated consumer and therefore misleading, courts in this jurisdiction have not held that combining interest and principal into one item violates § 1692e. In Wahl v. Midland Credit Management., the court held that it was not confusing to include interest in an item listed as "principal balance," where it included interest from the previous creditor. 556 F.3d 643, 646 (7th Cir. 2009). The court held that this lumping was not misleading because FDCPA does not require debt collectors to provide a breakdown of the principal and interest owed on the consumer's underlying credit card debt. Id. at 646-47 (affirming summary judgment in favor of defendant); Barnes v. Advanced Call Center Techs., LLC, 493 F.3d 838, 839 (7th Cir. 2007) (granting summary judgment for defendant debt collection agency and holding that a debt collector need not break out principal and interest). Unlike Acik, the collector's balance in Wahl did not include collection fees. Wahl, 556 F.3d at 646; Acik, 640 F. Supp. 2d at 1025."

"Further, in Hahn v. Triumph Partnership, LLC, the court granted summary judgment for the defendant debt collector and found no FDCPA violation for describing an "AMOUNT DUE" that encompassed interest that the previous creditor had added prior to the debt collector purchasing the debt. 557 F.3d 755, 756-57 (7th Cir. 2009). Indeed, the Hahn court held that it would be acceptable to simply give the debtor a statement lumping together the entire balance due, without itemizing either interest or principal. Id. at 757. "[T]he difference between principal and interest is no more important to the Fair Debt Collections Practices Act than the color of the paper that [the creditor] used." Id. In short, pursuant to Seventh Circuit precedent, even where a balance includes interest along with principal, the interest need not be itemized separately."

Granted, the referenced "interest" was added by 'previous creditor', but thats not necessarily to OC, from what I can tell.

Can you provide a link to your specific case? I'd really like to read it.

[Downto0]

Courts have construed the statute to apply only to the original agreement creating the debt. In Terech, for

example, the court held that § 1692f(1) is "directed at debt collectors who charge fees not contemplated by the
original agreement, not debt collectors who seek to charge fees contemplated by the agreement but arguably
waived thereafter."

http://scholar.google.com/scholar_case?case=5491946324385968036&q=simkus+v+calvary+portfolio&hl=en&a...

I settled with the collector and signed a confidentiality clause.  I can't  give you any details other than cite pertinent cases.  Besides, we settled.  There is no case to link you to.  However, I am $2,000 richer, or less poor.  

I think you are missing that sometimes clouds have silver linings.  Yes Simkus lost the case but some of the issues dealt with can be culled out for other argument.

On the opened date,

Similar to the ACT report in Sepulvado, Toliver's Experian credit report contained an entry titled "Date opened" with the date that the reporting creditor obtained the debt, rather than the date that the debt actually arose, and indicated that no payments had ever been made. A reasonable creditor could interpret this, just as the mortgage provider in Sepulvado did, to mean that Toliver took out a loan in March of 2006 and immediately defaulted without making any payments. Although Toliver's Experian credit reports do identify the original creditor, while the CSC report in Sepulvado did not, id. at 893 n. 4, a reasonable creditor might nonetheless conclude that the debt, though once owned by another, was opened and defaulted on in March 2006. The Fifth Circuit held that failure to identify the original creditor did not render the report misleading because the use of assignment language "would have placed a creditor on notice that the obligation existed before" the assignment date. Id. at 896. Here, there is no language to indicate that "Date 722*722 opened" means anything other than the date that the consumer opened the account, as it does for the majority of accounts on Toliver's credit report.[75] Thus, although it is a very close call, drawing all inferences in a light most favorable to Toliver, a reasonable jury could find that the "Date opened" entry was "misleading in such a way and to such an extent that it can be expected to adversely affect credit decisions." Sepulvado, 158 F.3d at 896.

http://scholar.google.com/scholar_case?case=7476317046905611411&q=toliver+v+experian+information+&hl...

I'm still reading.  Stay tuned

[Anonymous]

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@Downto0 wrote:

Courts have construed the statute to apply only to the original agreement creating the debt. In Terech, for

example, the court held that § 1692f(1) is "directed at debt collectors who charge fees not contemplated by the
original agreement, not debt collectors who seek to charge fees contemplated by the agreement but arguably
waived thereafter."

http://scholar.google.com/scholar_case?case=5491946324385968036&q=simkus+v+calvary+portfolio&hl=en&a...

I settled with the collector and signed a confidentiality clause.  I can't  give you any details other than cite pertinent cases.  Besides, we settled.  There is no case to link you to.  However, I am $2,000 richer, or less poor.  

I think you are missing that sometimes clouds have silver linings.  Yes Simkus lost the case but some of the issues dealt with can be culled out for other argument.

On the opened date,

Similar to the ACT report in Sepulvado, Toliver's Experian credit report contained an entry titled "Date opened" with the date that the reporting creditor obtained the debt, rather than the date that the debt actually arose, and indicated that no payments had ever been made. A reasonable creditor could interpret this, just as the mortgage provider in Sepulvado did, to mean that Toliver took out a loan in March of 2006 and immediately defaulted without making any payments. Although Toliver's Experian credit reports do identify the original creditor, while the CSC report in Sepulvado did not, id. at 893 n. 4, a reasonable creditor might nonetheless conclude that the debt, though once owned by another, was opened and defaulted on in March 2006. The Fifth Circuit held that failure to identify the original creditor did not render the report misleading because the use of assignment language "would have placed a creditor on notice that the obligation existed before" the assignment date. Id. at 896. Here, there is no language to indicate that "Date 722*722 opened" means anything other than the date that the consumer opened the account, as it does for the majority of accounts on Toliver's credit report.[75] Thus, although it is a very close call, drawing all inferences in a light most favorable to Toliver, a reasonable jury could find that the "Date opened" entry was "misleading in such a way and to such an extent that it can be expected to adversely affect credit decisions." Sepulvado, 158 F.3d at 896.

http://scholar.google.com/scholar_case?case=7476317046905611411&q=toliver+v+experian+information+&hl...

I'm still reading.  Stay tuned

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Very enlightening...Thank you. Be sure to let us know what happens if you do end up litigating the issue.