topic Re: CC won't report "first date of delinquency"! in General Credit Topics

CC won't report "first date of delinquency"!

glaucus — Tue, 06 Mar 2018 14:00:04 GMT

I have a closed Capital One CC account, closed in 2016. The account shows I was late in May 2011. That is the oldest reporting. However, I have statements showing I was late in 2010. I called TU and Capital One, spoke to tons of people, including supervisors. All I need is for Capital One to report the “first date of delinquency” to TU, and then by law under the FCRA, those old delinquencies must be removed because the first date is over 7 years old. However, despite every effort, fax, etc., I cannot get this to happen. The TU people are literally impossible to talk to. They have no understanding of how to get this done. The Capital One supervisor sounded very helpful but is not in charge. Does anyone have any suggestions? I don’t want to rock the boat (I have other Capital One accounts that are open.). Do I actually need any attorney? I’m not disputing the info; I just want it to be reported.

Re: CC won't report "first date of delinquency"!

Kree — Tue, 06 Mar 2018 14:20:14 GMT

Hi glaucus,

Please clarify something for me? which Scenario is more accurate:

Scenario A:

Late in 2010

Made payment

Late again may 2011

Scenario B:

Late in 2010

never made a payment.

Thanks,

Kree

Re: CC won't report "first date of delinquency"!

glaucus — Tue, 06 Mar 2018 15:47:42 GMT

Hi Kree,

I was late in 2010, and continued to make payments, but remained past due until 2012. I believe under the FCRA because the first date of delinquency is over 7 years old, the law requires the reporting agencies to eliminate all negative reporting. Capital One never reported a first date of delinquency, and TU arbitrarily chose January 1 of 2012 as the date!! Even though their reporting shows I was late in 2011, TU told me that because they never got an official first date, they cannot make any changes. The whole thing has been impossible to deal with, so I wonder if my only option is a costly lawyer??

Re: CC won't report "first date of delinquency"!

Anonymous — Tue, 06 Mar 2018 16:21:33 GMT

Hey there, date of first delinquency isn't the first time you were just late. That's not the legal definition. It is the date you first become 30 days late, then never bring your account current or make payments, then a charge off occurs. All of those things had to happen in that order for that to be your date of first delinquency. If you continued making payments, even partial payments, as you say you did, then that 2010 date is not your date of first delinquency. Unfortunately a lawyer won't help you so ride it out.

Re: CC won't report "first date of delinquency"!

glaucus — Tue, 06 Mar 2018 16:40:08 GMT

Oh! I was under the impression that if I was late, even if I then got current and remained so, that any late reporting over 7 years old had to be removed by law!? Perhaps I am wrong.

Re: CC won't report "first date of delinquency"!

Kree — Tue, 06 Mar 2018 16:47:29 GMT

@Anonymouswrote:
Hey there, date of first delinquency isn't the first time you were just late. That's not the legal definition. It is the date you first become 30 days late, then never bring your account current or make payments, then a charge off occurs. All of those things had to happen in that order for that to be your date of first delinquency. If you continued making payments, even partial payments, as you say you did, then that 2010 date is not your date of first delinquency. Unfortunately a lawyer won't help you so ride it out.

OP, with what chrismeyer2k1 is saying.

Lets say this is your report. (simplified hypothetical situation)

In Jan you would be 30d late for decembers payment, in Feb you would be 60 days late for Dec payments. In march you would be 90 days late for decembers payment. You then pay 3 months of debt. In April you are still late, but you are now 30 days late for March, not December.

In this fashion payments, while not removing you from late status, will still change your Date of First Delinquency.

Other people have had this issue, where they missed a payment, never paid a catchup payment and have had 7 years of 30d late reporting. Most agreements have a clause in them concerning how payments are applied (oldest debt first, then newer debts, then fees) Although theoretically you could mail a check with specific instructions for which month to apply payments to.

Re: CC won't report "first date of delinquency"!

Anonymous — Tue, 06 Mar 2018 16:49:29 GMT

You're correct in that sense, it must come off your credit record by law, but it's 7 years from the January 2012 date not the earlier dates you mentioned. That means you've got to ride it out until the first half of next year and then itll remove. Thats not so bad, a year.

Re: CC won't report "first date of delinquency"!

RobertEG — Tue, 06 Mar 2018 17:23:37 GMT

What is commonly called the DOFD is defined under FCRA 605(c), and requires either a charge-off or collection as part of the definition.

It is the date of the first delinquency that immediately preceded the reported charge-off or collection, wherein the account remained delinquent from that first delinquency until the taking of the charge-off or the collection.

If there is a reported charge-off or collection, the CRA must then have the DOFD in order to comply with the exclusion provision of section 605(c). Thus, when the FCRA added section 605(c) to define DOFD as the date-certain for calculating the exclusion of a charge-off or collection, it also added new section 623(a)(5), which requires that the DOFD then be provided to the CRA no later than 90 days after reporting of the charge-off or collection.

The FCRA does NOT specifically define DOFD as also being used to determine the exclusion of monthly delinquencies, and does NOT require any separate reporting of the DOFD to the CRAs when there is a reported monthly delinquency.

FCRA 605(a) defines the exclusion periods for all types of adverse items of information reported to a CRA.

It does so by providing first explicit definitions for certain types of adverse information in subsections 605(a)(1) thru 605(a)(4), and then providing a catch-all subsection 605(a)(5), which sets a 7 year exclusion period for any other adverse item of information not included in prior subsections (a)(1)-(a)(4). Monthly account delinquencies do not have their own separate definition within any of the prior subsections, and thus broadly fall within the catch-all provisions of subsection (a)(5), which does NOT make any reference to use of DOFD when applied to monthly delinquencies.

With that as the statutory background, there is no requirement under the FCRA for any separate and explicit reporting of the DOFD by a creditor when they report a monthly delinquency. The primary reason is that the CRAs provide separate codes for reporting of delinquency status that includes both the fact that the account is delinquent AND the time since initial delinquency. Reporting in April, 2014 of a 60-late, for example, states that the account was delinquent at the time of that reporting, and 60-89 days beyond the date the account initially became delinquent. Thus, reporting inherently includes the date of first delinquency, albiet inferred rather than separately reported under some requirment of the FCRA.

While FCRA 605(a)(5) makes no reference to DOFD, and does not mandate removal of delinquencies based on DOFD, the CRA policy for decades has been to consider the initial account delinquency to be the "adverse item of information" being considered for exclusion under subsection 605(a)(5), and thus excludes all subsequently reported delinquencies in the same chain at the same date of 7 years from the date of initial account delinquency.

So, getting finally to the subject of the post, which is what is done if no DOFD is required to be reported when a monthly delinquency is reported, and the CRA is thereafter determining the exclusion of a chain of delinquencies?

The CRAs indirectly address that issue in their common credit reporting manual, titled the "Credit Reporting Resource Guide," by stating as a credit reporting guideline that when a delinquency is reported, the furnisher should also provide the date of initial delinquency.

The CRAs reserve a code called the "FCRA Compliance Date/Date of First Delinquency," which is, for those interested, stored in Field Code 25 of the Base Segment of the consumer's credit file.

Creditors are instructed to fill Field Code 25 as a statutory requirement when they have reported a charge-off, but are also requested to fill Field Code 25 when they are reporting monthly delinquencies, but it is not a stautory requirment.

If the creditor fails to separately report a date to Field Code 25 when reporting a monthly delinquency, the CRA then uses the inherent/implied date of initial delinquency based on the reported delinquency code. For example, if a 60-late is reported in April 2014, with no filling of Field Code 25, the CRA will assume intial delinquency was in March 2014, and use that in their later determination of exclusion of the chain of delinquencies that includes that late. Thus, all delinquencies in that chain would be excluded as of March, 2021.

In summary, there is no statutory or regulatory requirement for reporting date of first delinquency when reporting a monthly delinquency.

It is, if not provided, inferred.

You apparently have an issue, not of violation of statutory reporting by the creditor, but of incorrect inference of the date of initial account delinquency by the CRA in their administrative exclusion determination.

FCRA 611 permits a consumer to dispute the accuracy of any item of information in their credit file. The CRA is producing an FCRA Compliance Date/Date of First Delinquency and placing of record in their field code 25 of your credit file. I would dispute the accuracy of that item of information.

It is not an issue of required reporting by the creditor, it is an issue of incorrect determination of the date of initial delinquency by the CRA.

Re: CC won't report "first date of delinquency"!

glaucus — Tue, 06 Mar 2018 17:37:17 GMT

Thank you SO MUCH for that extremely thorough explanation! That should be required reading for anyone in my position.

I understand things much better now, and I agree that the issue is with the CRA. In my 9 calls to TU, every time I asked about this, they all just read me the same text verbatim on their screens. They said that they were not given a DOFD. When I pointed out the stupidity of the situation - that I have lates on their report that long precede their arbitrary DOFD that they intend to use, they seem to literally disregard everything I say and just re-read the same spiel about not being given a DOFD from the creditor.

I've talked to supervisor after supervisor. No luck. What would you suggest?

Re: CC won't report "first date of delinquency"!

Anonymous — Tue, 06 Mar 2018 17:39:32 GMT

I don't even think it's a incorrect determination of date of first delinquency. Like you state there is no requirement to report a DOFD for a late payment. They didnt charge him/ her off in 2010 or 2011. Those late payments are not related to the subsequent charge-off in 2012. He made payments in the interim. So everything is right. He just misinterpreted his earlier late payments as the start of a cycle leading to the charge-off.

Re: CC won't report "first date of delinquency"!

RobertEG — Tue, 06 Mar 2018 17:41:29 GMT

File a formal dispute with the CRA, asserting the inaccurate recording of the date of initial account delinquency in your credit file.

If the CRA then formally verifies the accuracy of their determination, you can either file an administrative complaint with the CFPB or a civil action against the CRA, with the violation being their lack of reasonable reinvestigation of your dispute.

Re: CC won't report "first date of delinquency"!

MakingProgress — Tue, 06 Mar 2018 17:55:58 GMT

@RobertEGwrote:

The FCRA does NOT specifically define DOFD as also being used to determine the exclusion of monthly delinquencies, and does NOT require any separate reporting of the DOFD to the CRAs when there is a reported monthly delinquency.

FCRA 605(a) defines the exclusion periods for all types of adverse items of information reported to a CRA.
It does so by providing first explicit definitions for certain types of adverse information in subsections 605(a)(1) thru 605(a)(4), and then providing a catch-all subsection 605(a)(5), which sets a 7 year exclusion period for any other adverse item of information not included in prior subsections (a)(1)-(a)(4). Monthly account delinquencies do not have their own separate definition within any of the prior subsections, and thus broadly fall within the catch-all provisions of subsection (a)(5), which does NOT make any reference to use of DOFD when applied to monthly delinquencies.

With that as the statutory background, there is no requirement under the FCRA for any separate and explicit reporting of the DOFD by a creditor when they report a monthly delinquency. The primary reason is that the CRAs provide separate codes for reporting of delinquency status that includes both the fact that the account is delinquent AND the time since initial delinquency. Reporting in April, 2014 of a 60-late, for example, states that the account was delinquent at the time of that reporting, and 60-89 days beyond the date the account initially became delinquent. Thus, reporting inherently includes the date of first delinquency, albiet inferred rather than separately reported under some requirment of the FCRA.

While FCRA 605(a)(5) makes no reference to DOFD, and does not mandate removal of delinquencies based on DOFD, the CRA policy for decades has been to consider the initial account delinquency to be the "adverse item of information" being considered for exclusion under subsection 605(a)(5), and thus excludes all subsequently reported delinquencies in the same chain at the same date of 7 years from the date of initial account delinquency.

So, getting finally to the subject of the post, which is what is done if no DOFD is required to be reported when a monthly delinquency is reported, and the CRA is thereafter determining the exclusion of a chain of delinquencies?

The CRAs indirectly address that issue in their common credit reporting manual, titled the "Credit Reporting Resource Guide," by stating as a credit reporting guideline that when a delinquency is reported, the furnisher should also provide the date of initial delinquency.
The CRAs reserve a code called the "FCRA Compliance Date/Date of First Delinquency," which is, for those interested, stored in Field Code 25 of the Base Segment of the consumer's credit file.
Creditors are instructed to fill Field Code 25 as a statutory requirement when they have reported a charge-off, but are also requested to fill Field Code 25 when they are reporting monthly delinquencies, but it is not a stautory requirment.
If the creditor fails to separately report a date to Field Code 25 when reporting a monthly delinquency, the CRA then uses the inherent/implied date of initial delinquency based on the reported delinquency code. For example, if a 60-late is reported in April 2014, with no filling of Field Code 25, the CRA will assume intial delinquency was in March 2014, and use that in their later determination of exclusion of the chain of delinquencies that includes that late. Thus, all delinquencies in that chain would be excluded as of March, 2021.

I have 3 -120 day lates reported in Jul, Aug, and Sep 2011. There are no 30, 60, or 90 day lates reported.

I keep learning from you Robert. The last time I saw you post about monthly lates I learned that they would drop off all at once rather than one by one. If I am reading this correctly then instead of them dropping off in Jul, then should drop off in April as that would have been when the account was first 30 days even though that late payment has not been reported.

Am I correct in how I have read Robert's post?

Re: CC won't report "first date of delinquency"!

Anonymous — Tue, 06 Mar 2018 18:04:18 GMT

You're skirting around the issue. You have your credit report in front of you. On what month was it charged off? You know what it is, but you seem to be purposely vague. I am not asking about your 30 or 120 day lates. Was it in 2012 of after your 120 day lates in September of 2011?

Re: CC won't report "first date of delinquency"!

MakingProgress — Tue, 06 Mar 2018 18:15:09 GMT

@Anonymouswrote:
You're skirting around the issue. You have your credit report in front of you. On what month was it charged off? You know what it is, but you seem to be purposely vague. I am not asking about your 30 or 120 day lates. Was it in 2012 of after your 120 day lates in September of 2011?

Not sure if this is directed at my post or the OP. I am not the OP. I am only talking about monthly lates, no charge off. My report shows 120 days late in Jul 2011, 120 days late in Aug 2011 and 120 days late in Sep 2011. It does not show a 30, 60 or 90 day late preceeding the first 120 day late. I was current as of Oct 2011. So this is a monthly late issue not a charge off issue.

Re: CC won't report "first date of delinquency"!

Anonymous — Tue, 06 Mar 2018 18:19:57 GMT

Oh sorry. Thought you were OP.

Re: CC won't report "first date of delinquency"!

glaucus — Wed, 14 Mar 2018 14:22:31 GMT

Update: I have exhausted all efforts short of getting an attorney involved. I talked with over 2 dozen people at TU, and I faxed letters and documents 4 separate times. Every person - including 18 supervisors - were cookie-cutter duplicates. They all told me all they could do was file a dispute with the CC company. They know nothing about the FCRA or any "field code". When I ask them how they could choose a DOFD in January 2012, and still show me as late as far back as May 2011, they have no answer. They don't even acknowledge that I asked a question. They all just read the same lines of text they have in front of them, about how the creditor did not provide a date. There seems to be no logic, no inherent date that they determine by working backwards.

I hate to go the attorney route because of the fees and time involved. Are there any last ides or suggestions?

Re: CC won't report "first date of delinquency"!

RobertEG — Wed, 14 Mar 2018 16:39:28 GMT

The FCRA does NOT require a creditor to report what is called the DOFD unless they have charged-off the debt.

Reporting of DOFD is set forth under FCRA 523(a)(5), and ONLY applies once a furnisher has reported either a charge-off or a collection. It is then used under FCRA 605(c) to determine the exclusion date of a reported charge-off or collection.

The exclusion of monthly delinquencies is covered under the catch-all exclusion provision of FCRA 605(a)(5), which makes no mention of use of DOFD, and clearly does not require any reporting by the creditor of a DOFD to the CRA.

I would not advise bring civil action asserting a violation of a non-existing "requirement" of the FCRA.

The CRAs make an interpretation based on payment history reporting, and provide specific codes that permit the determination of initial date of delinquency. A code reporting a 120-late in August, for example, clearly implies an initial delinquency in May. That is the reason for the codes that include the length from initial delinquency.

The use of DOFD for determining the exclusion of monthly delinquencies is purely an interpretation by the CRA that the initial occurence of delinquency in a chain of delinquency is the "adverse item of information" that defines the exclusion of delinquencies.

That interpretation clearly is NOT based on the first-ever delinquency on the account, but rather on the initial date of delinquency in a chain of consecutive delinquencies defined as the same "delinquency" for credit report exclusion purposes.

It makes no sense to use a first delinquency on a prior chain of delinquency after which the account was brought back into good-standing as defining a later chain of delinquency. That is NOT the long-standing practice of the CRAs, and such an interpretation, in my opinion, would be a losing interpretation based on decades of clear and uncontested past practice, and no case law interpretation supporting such an assertion. However, if you care to litigate, then by all means have at it.....

Re: CC won't report "first date of delinquency"!

glaucus — Wed, 14 Mar 2018 18:07:57 GMT

I only had one chain of delinquency. I becam delinquent in 11-2010. I remained delinquent until 5-2012, and was current since then, though the account was closed by the grantor in 2012. The reporting shows payments made on time until I paid it off completely in 2014. My issue is that I thought that the law required the CRA to remove any bad payment history 7 years after it began. By my math, that would mean that the entire year and a half of delinquency should be removed and no longer factored into the FICO calculations.