The FCRA does not explicitly state how monthly delinquencies become excluded.
FCRA 605(a) sets forth, in subsections (1) through (5), details of how any adverse item of information becomes excluded.
Subsections 605(a)(1) through 605(a)(4) relate to specific types of derogs, and defines their unique exclusion provisions, and then subsection 605(a)(5) provides a catch-all provision that covers "any other adverse item of information."
Monthly delinquencies dont have their own explicit subsection, and thus fall under subsection 605(a)(5).
Subsection 605(a)(5) states that the exclusion period is 7 years, but since it is designed to broadly cover any other adverse information, does not provide an explicit begin date for the 7 year exclusion period. It is thus subject to interpretation as to what is the begin date for exclusion of individual monthly delinquencies.
One interpretation is that each reported monthly delinquency is its own adverse item of information, and thus each individual monthly delinquency must be excluded no later than 7 years from its individual month/year of occurence.
The second interpretation is that it is the delinquency itself which is the adverse item of information, and that delinquency occurs on the first date of delinquency, with later reported delinquencies in that same chain only being an extension of the same delinquency.
Thus, section 605(a)5) is interpreted as requiring exclusion of all delinquencies in a common chain no later than 7 years from the date of first delinquency.
When a statute is broad, it can be subject to differing interpretations unless and until an appeals court provides a binding case law interpretation, and then that interpretation becomes binding legal precedent, but only in the jurisdiction of courts under that appellate court.
To date, there is no appellate case law that provides uniform precedent establishing a clear and consistent exclusion interpretation.
EX provides its own interpretation on its web site, which is the exclusion of all monthly delinquencies in a common chain at 7 years from the date of initial delinquency. However, that is not consistently applied by all CRAs, and additionally there is evidence that EX sometimes does not follow its own published policy.
In the posted scenario, it is stated that the CRA has excluded earlier delinquencies in a chain if the delinquencies are more than 7 years ago, while the CRA is still showing some delinquencies in that same chain that have a month/year that has not yet reached 7 years.
Since the creditor is not required to separately report the DOFD, and since the credit report no longer shows the delinquency that was the initial delinquency, the post asserts an inability to determine the date of first delinquency for the common chain.
If the CRA has excluded earlier delinquencies but is still showing later delinquencies, that can certainly be a problem if exclusion of all delinquencies in the chain is being argued.
You can, however, still obtain the date of the reported initial delinquency from the CRA by use of FCRA 609(a), which permits the consumer to obtain any information of record in their credit file. It is used when a commercial credit report does not provide the information that is sought.
When a CRA excludes information based on any of the exclusion provisions of FCRA 605(a), the information is not deleted from the consumer's credit file. It is only excluded from credit reports provided to parties other than the consumer.
FCRA 609(a) provides ability of the consumer, upon providing proof of their identity and payment of the current prcessing fee of $11.50, to file a request with the CRA and obtain that normally excluded information.
If you wish to pursue an argument that all delinquencies in a common chain must become excluded no later than 7 years from the date of initial delinquency, and you cannot get the date of initial delinquency from your report because it has become excluded by the CRA, then file a request under FCRA 609(a) for that information.
