Date Of First Delinquency

[ScoreBooster]

Hi, I have a question about the DOFD.

I'm currently arguing with Capital One Auto when my account is supposed to drop off my report. I still have the original account statements. Here's the problem:

In 2006, my December-Payment was due on 12/2/2006. I missed that payment and therefore, went delinquent on 12/3/2006. The next statement (12/15/06) reflected a past-due amount of 1,438.15. In the following billing-cycle, I failed to make a payment and as a a result, the January statement correctly reflected a past-due amount of 2,876.30. I made a payment on 1/16/07 in the amount of $1,500. This payment, however, was the only payment in that month so my account didn't become current again.

In the following months, I made one payment each. The statements I received actually show that the account was constantly 2 payments past due every time the statement was generated (15th of each month). 

Here's the problem: Capital One is claiming a DOFD of 4/2007. I just had a phone-conversation with a lady, explaining the reason: 

They are claiming that a DOFD only matters/is valid if you are at least 30 days past due when they are reporting to the bureaus (IMO, that is nonsense). Since my due-date was the 2nd of each month and they were reporting on the last day of each month, I wouldn't have been 30 days past due until April when I actually stopped making payments. So in other words, it doesn't matter that the account went delinquent on 12/3/2006. As long as I was less than 30 days past due when they report to the bureaus, they could ignore the DOFD and simply base the drop off date on my reported payment history. And since I was less than 30 days past due on the reporting date, I was "current" in regards to the reporting and as a result, have to accept their 4/2007 DOFD-date.

What do you guys think? I find this a bit too "creative". Fact is that I went delinquent on 12/3/2006, was 30 days past due on 1/2/2007 and never brought the account back CURRENT. Granted, there were indeed periods where I was less than 30 days past due - but I was never CURRENT again.

So if the DOFD determines the actual drop off date, how can they stick to their claim of 4/2007? If they would report their accounts the day the statement is generated (like the majority of lenders do), I wouldn't have to deal with this issue in the first place - but IMO, the reporting date shouldn't matter in the first place.

Thanks for your input!

[RobertEG]

You are correct.

The FCRA, in sectios 623(a)(5) and 605(c), clearly defines what is commonly called the DOFD as the month and year of the commencement of delinquency on the account that immediately preceded the collection.  "Commencement of delinquency" is iclearly defined in the legislatiive history of sections 623(a)(5) and 605(c), interpretations issued by the FTC, and case law, as the date you first became delinquent on the account, and thereafter did not bring the accunt back into good-stianding before the reported charge-off or colllection.  You became delinquent ater the billing due date, not the CRA reporting date of delinquency.

In distinction, the date a delinquency becomes reportable as a 30-day late to a CRA is NOT the date that you first became delinquent.  The CRA reporting manual clearly defines a reportable 30-late as being 30 days past the billing due date, not the billing date.  Thus, one can clearly be delinquent under their account agreement as of the billing due date, but it does not become reportable as a 30-late for credit reporting purposes until 30 past past the billing due date.

They are clearly presenting an inerpretation of DOFD that is directly contrary to all legal definitions.

I would hire an attorney and bring civil action for improper reporting of the DOFD, as defined under section 623(a)(5).

[ScoreBooster]

Thank you so much, RobertEG!

The only thing I wasn't sure of was if I would have to stay at least 30 days past due in order NOT be considered current again and therefore, reset the DOFD-clock. You delivered a great explanation and I'm going to use that in my next letter to them - if you don't mind.

So one final question: The "legal" DOFD should be 12/3/2006 (payment due: 12/2/2006) in my case and not 30 days later, correct? I'm asking because there are several definitions out there on the internet that describe the DOFD as 30th or 31st day after the payment was due...

[RobertEG]

Yes, billing due date defines the DOFD.  It is the legal date set by your account agreement that min payment is due, and thus defines the legal date after which you become delinquent.  DOFD is only reset if you bring the account back into good standing under your account agreement, and thereafter have a new "commencement of delinquency" that again places you in arrears of your account agreement.

Many posts you read will use the date of a reported 30-late as the DOFD. 

It's close, but actual DOFD will be a month prior to when it becomes a reportable 30-late.

I would also suggest that you go onto the FTC web page once they are back on line after the gvt shutdown and review their FCRA staff opinion letters related to FCRA 623(a)(5) and 605(c).  They clearly define the FTC opinion, which has been unifromly affirmed by the courts.  The Brinkerman and Memet decisions come to memorry......

[ScoreBooster]

Once again, thank you very much for your input, RobertEG!

I'm also in the possession of several "Notice of Default"-letters from back then, telling me I would have failed to comply with the terms and conditions of the account by "failing to make payments when they were due".

So according to Cap. One own words, I'm considered late the first day after the due date - and not a month later.