How is DoFD determined?

[hopingsoon]

I apologize, I've posted a number of times about this but I have some more information now and I'm looking for some advice.

This month a CA appeared on my CR for an OC that I had no memory of. I dug through some old paperwork and found proof that I did in fact join the CH DVD club. The terms of the contract were that you much purchase 5 DVDs at regular club price over the first 2 years. Apparently I didn't. I was still confused about this appearing on my CR in 2013 because I joined that DVD club with the OC in 2003 or 2004. I kept digging and found an unopened letter from the OC from 2010. It stated that they were charging me the cost of the 5 unpurchased DVDs. I'm not arguing that I shouldn't have to pay this, if I have a debt it's my responsibility. I'm just wondering how DoFD is determined because technically, I was supposed to purchase those DVDs within the first 2 years. So why did they charge me for them 6 years later. Kind of makes the DoFD rule a joke. 

I've been working on paying off all my debts. There are only a handful and they are mostly small amounts, like this one. I have no problem paying but the idea of this one staying on my CR or having to beg for it to be removed just burns me up.

Any thoughts??

[Anonymous]

I don't think they can wait six years to do a CO.  According to the FCRA, DoFD if the time you first became delinquent and never brought the account current again, plus 180 days.

I thought it was around 6 months after becoming delinquent.  In your case I think it would be after the 2 years for purchasing the DVDs.

[RobertEG]

The statute never uses the actual terminology DOFD.

It defines DOFD, in both FCRA 605(c) and 623(a)(5) as the date of commencement of delinquency that immediately preceded the charge off of collection in question.

It is the first date you became delinquent under the terms of the account agreement, and then remained delinquent up until they did the charge-off or collection referral.

In your case, the terms of the account agreement specified when first payment was due, by amount and date.

If payment is not made by that date, that defines your initial commencement of delinquency.

That DOFD remains unless or until the account is brought back into terms of the agreement.  If that occurs, a new DOFD would occur if and when the account had a new first delinquency that occured prior to when they chose to do a charge-off or refer for collections.

In your case, a debt collector reported a collection.  FCRA 623(a)(5) then requires the debt collector to report the DOFD on the OC account within 90 days after reporting their collection.  The purpose of that requirement is that the CRA must have a reported DOFD in order to monitor the date of its maximum statutory exclusion period.

The debt collector does not independently determine the DOFD on an OC account.  Section 623(a)(5) prescribes the procedure they must use to obtain the DOFD from the OC. 

The first step is easy if the OC ever reported a DOFD to the CRA.  The debt collector is required to report that same date.

If the OC has never reported a DOFD to the CRA, then the debt collector is required to contact the OC and make a reasonable attempt to get the DOFD from the horse's mouth.  If the OC provides them a date, they must report that date.

Final fallback occurs if steps one and two fail.  The debt collector must still provide a DOFD to the CRA within 90 days after reporting of their collection.

They may then make their best estimate of the DOFD, but in no case may they report a DOFD that is later than the date they received collection authority.

Once 7 years plus 180 days has expired from the reported DOFD, the CRA is prohibited from any furnther inclusion of a charge-off or collection based on that DOFD in any credit report they issue.

[hopingsoon]

So, what are my options for having the mark removed from my CR? If OC only reported a deliquency in 2010 then the CA has every right to report for 7.5 years from that date. I don't feel that is right though.

[Anonymous]

I don't either.

I would still file a dispute with the BBB for business practices, waiting to CO an account that went delinquent 6 years ago.

[chevyman]

Columbia House is known for reaging

[RobertEG]

Of course it isnt right because they cant report a DOFD based on such reporting.

The legal issue is not one of when or if the OC reported a delinquency, or the date of their reporting of any delinquency.

The OC is not obligated to report all delinquencies.  They can first report only a 60, 90, or later delinquency as their first reported delinquency.

Or they could decide not to report earlier delinquencies, and first report as 30-late when the actual first delinquency occured some time ago.

So reliance on your CR as to their first reported delinquency does not establish the reporting of the actual, first delinquency on the account.

The OC is never required to report a DOFD if they did not charge-off the debt.  Reporting of delinquencies is separate from reporting of a DOFD.  They must separately report the date of commencement of delinquency on the account, regardless of any other reporting or lack of reporting of dates of delinquencies.  That is coded and stored separately by the CRA under the "FCRA Compliance Date/Date of First Delinquency."

If they reported a CO, then had an immediate statutory obligation to provide the DOFD to the CRA within 90 days.  If they did not report a CO, then they had no obligation to report a DOFD. 

If a debt collector then reports a collection, the debt collector has the obligation to report the DOFD to the CRA within 90 days of that reporting.

[hopingsoon]

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@RobertEG wrote:

Of course it isnt right because they cant report a DOFD based on such reporting.

The legal issue is not one of when or if the OC reported a delinquency, or the date of their reporting of any delinquency.

The OC is not obligated to report all delinquencies.  They can first report only a 60, 90, or later delinquency as their first reported delinquency.

Or they could decide not to report earlier delinquencies, and first report as 30-late when the actual first delinquency occured some time ago.

So reliance on your CR as to their first reported delinquency does not establish the reporting of the actual, first delinquency on the account.

The OC is never required to report a DOFD if they did not charge-off the debt.  Reporting of delinquencies is separate from reporting of a DOFD.  They must separately report the date of commencement of delinquency on the account, regardless of any other reporting or lack of reporting of dates of delinquencies.  That is coded and stored separately by the CRA under the "FCRA Compliance Date/Date of First Delinquency."

If they reported a CO, then had an immediate statutory obligation to provide the DOFD to the CRA within 90 days.  If they did not report a CO, then they had no obligation to report a DOFD. 

If a debt collector then reports a collection, the debt collector has the obligation to report the DOFD to the CRA within 90 days of that reporting.

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RobertEG, I appreciate your help but you are talking over my head. Are you saying that what has been done in this case is completely ok and that I have no recourse?

[RobertEG]

OK, to try to put it into terms of the specific account.

You have at least some support for asserting that your first delinquency on the account was no later than 2006.

That support is the date you established the account, no later than 2004, plus the terms of that agreement being two years.  Thus, some payment was due within that period.

So, take 12/2004 (last month of the year of the contract)  plus two years, and thus 12/2006 is the worst case date of any first delinqueuncy for any payment, as your contract expired after that period, and no contract requires no payment within its period.  Totally logicial assertion of delinquency without having to prove a specific date. DOFD could be no later than 12/2006.

If they are reporting a DOFD after that date, it must necessarily be incorrect.  So you have basis for a current dispute at least of the accuracy of their current reporting.

Unfortunately, a DOFD of 12/2006 wont have a max CR exclusion date until 6/2014, so to argue immediate CR exclusion will require pushing the DOFD back approx one more year.  Hopefully you have sufficient records to support an earlier date.

Does that help?

[hopingsoon]

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@RobertEG wrote:

OK, to try to put it into terms of the specific account.

You have at least some support for asserting that your first delinquency on the account was no later than 2006.

That support is the date you established the account, no later than 2004, plus the terms of that agreement being two years.  Thus, some payment was due within that period.

So, take 12/2004 (last month of the year of the contract)  plus two years, and thus 12/2006 is the worst case date of any first delinqueuncy for any payment, as your contract expired after that period, and no contract requires no payment within its period.  Totally logicial assertion of delinquency without having to prove a specific date. DOFD could be no later than 12/2006.

If they are reporting a DOFD after that date, it must necessarily be incorrect.  So you have basis for a current dispute at least of the accuracy of their current reporting.

Unfortunately, a DOFD of 12/2006 wont have a max CR exclusion date until 6/2014, so to argue immediate CR exclusion will require pushing the DOFD back approx one more year.  Hopefully you have sufficient records to support an earlier date.

Does that help?

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Yes. I'm sorry I wasnt following you before. Here's the next question, does the CA or OC have any obligation to provide me with information such as the date of the original contract?