This is an old and longstanding issue with EXP.
It stems from ambiguity in the NYS statute , which does not make any reference to use of DOFD in setting the exclusion period, as opposed to the federal FCRA, which was amended to clearly require use of DOFD.
As background, the original version of FCRA 605(a)(4), which defines the exclusion period for a collection or charge-off, stated that the 7 year exclusion period ran from the date “placed for collection or charged to profit and loss.”
That language was interpreted by the CRAs in their exclusion determinations as resetting the exclusion period each time a new debt collector reported their collection, and used the date of the charge-off, which is not even reported to the CRAs.
Congress intervened in the 1990’s by amending the FCRA by the addition of new sections 605(c) and 623(a)(5), clearly establishing the use of date of first delinquency, and no other date, as the date for begin of the exclusion period.
The NYS statute uses the old and controversial language of the original FCRA, and makes no mention of use of DOFD. It thus suffers the same interpretation issues that plagued the old version of the FCRA.
Two of the three CRAs have “read into” the NYS statute the unspecified use of DOFD, notwithstanding the total absence of any reference to use of DOFD, in order to make it consistent with the federal FCRA, and merely shortening the exclusion period from 7 to five years for NYS residents.
However, EXP continued for years to base exclusion on either the date placed for collection or the date charged to profit and loss.
That inconsistent treatment by the CRAs was apparently resolved a few years ago when EXP began to make the same exclusion interpretation.
It now appears from the post that they have, for some reason, reverted back to their old ways.
There is, to my knowledge, no NYS case law that requires the interpretation of use of DOFD, notwithstanding the clear fact that it is not mentioned in the NYS staute. Thus, consumers are left to the mercy of interpretation by the CRAs.
In order to force EXP to make the same use of DOFD as is mandated under the federal FCRA, one could file a complaint with the NYS office of the attorney general, who is charged with enforcement of the NYS statute, or one could simply bring their own civil action and get the matter clearly before a NYS court. Until then, it unfortunately remains a legal interpretation issue.
As for contacting the creditor or debt collector, that has no effect on the exclusion of their reporting based on age.
The exclusion provisions of both the federal FCRA and the NYS code are imposed on the CRAs, and defines the date after which they must case inclusion of derogs in credit reports that they issue. Furnishers are not involved in the actual exclusion.
However, if you contact a furnisher and they agree to report deletion of their prior reporting, that will remove the reporting and thus obviate any issue of CRA exclusion. CRA policy instructs furnishers not to delete based on payment of the debt, so most furnishers will not delete based on that CRA policy.
Shown below is a complete copy of the NYS statute for reference to its specific language:
New York State General Business Law Section 380-j
“(f)(1) Except as authorized under paragraph two of this subdivision, no consumer reporting agency may make any consumer report containing any of the following items of information.
(i) bankruptcies which, from date of adjudication of the most recent bankruptcy, antedate the report by more than fourteen years;
(ii) judgements which, from date of entry, antedate the report by more than seven years or until the governing statute of limitations has expired, whichever is the longer period; or judgments which, from date of entry, having been satisfied within a five year period from such entry date, shall be removed from the report five years after such entry date;
(iii) paid tax liens which, from date of payment, antedate the report by more than seven years or, a paid, satisfied or vacated tax lien involving a purchaser, transferee or assignee in a bulk sale transaction who has been deemed liable by the state tax commission for sales taxes due from a seller, transferrer or assignor under subdivision (c) of section eleven hundred forty-one of the tax law, where the receipt by a credit reporting agency from such purchaser, transferee or assignee of a notice, or true copy thereof, from the state tax commission to such purchaser, transferee or assignee that his liability has been wholly paid or satisfied or no longer exists, antedates the report by more than thirty days;
(iv) 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; “
