Did my SOL in suing Amex expire?

[Anonymous]

I have a charge-off from American Express and am about to sue them for FCRA violations. They recently verified the debt when I dispute it via the CRAs, yet to date, they haven't been able to provide me with any proof of my liability. They actually tried to pass a copy of an application form for a different account as their proof of my liability for the account in question!! :mad:

I've just read somewhere here on the board that the SOL for me to sue OC and CRAs for FCRA violations is 2 years. Here is my problem: the debt is reported on my EQ and EX CRs as having a charge off date and DOLA of 02/2000, and in my TU CR 09/2000. However, this account was never reported in my CR until sometime between 12/2001 and 07/2002. I know this because I pulled my EQ CR in 12/2001 and the tradeline was not there, but I do see it in my CR in 07/2002.

How should I calculate the SOL for me to sue them? Is it 2 years from MY charge off date/DOLA or 2 years from the first time they reported to the CRAs? I'm concerned because in my EX report, it's stated that "This account is scheduled to continue on record until 2/2007" which is 7 years from the charge-off date/DOLA and NOT 7 years from when the tradeline first appear in my report. So, if the CRAs use the charge-off date to calculate the 7 year reporting, would this also be the date that I use to calculate the 2 year SOL to sue the bastards, even though Amex didn't place the account in my report until much later?

[Edit by businessdebt on Wednesday, May 7, 2003 @ 04:47 PM]

[LadynRed]

Its two years from the time it hit your report, not since your charge-off.

[Anonymous]

Thanks, Lady! I thought it as much. I just thought it was tricky of Amex to report a tradeline more than one year after the DOLA. I guess I will now have to find out from each of the CRAs exactly when Amex first reported the tradeline. Thanks again!

[Anonymous]

If they verified the debt while it was disputed, wouldn't the SOL for suing them for continued collection activities start on the date of the violation (date they verified with CRA)? Or am I completely missing something.

[Anonymous]

I agree with you, but just in case, I don't want Amex to get off because of some SOL technicality.

By the way, don't you find it unfair that we only have 2 years to sue them, while the SOL for them to collect from most of us is longer than 2 years.

[paw67]

Ok, I am a little confused. I have only been doing this for about 2 months so maybe I misunderstood. It was my understanding that an OC isn't required to validate the debt, only a CA is required by the FCRA to validate. Since Amex is the oc would they be required to validate or not.

paw67

[bingo]

Paw67,

A couple of things going on here: THe SOL to bring an action against anyone for a FCRA violation is 2 years and 1 year for FDCPA.

You can force the OC to validate-you just can't use the word validate in your letters. You have to raise the issue of incorrect reporting by generally challenging the accuracy of the tl and giving them an opportunity to correct with the CRA's. If they verify they can be sued. See the following case:

Consumer Credit--Credit Reports

FCRA Gives Consumers Cause of Action

Against Furnishers of Credit Information

Fair Credit Reporting Act provision that outlines duties of furnisher of credit information once dispute arises concerning accuracy of data in consumer's file, 15 U.S.C. § 1681s-2(, creates private cause of action for consumer against furnisher.

Consumers may sue furnishers of credit information under the Fair Credit Reporting Act for passing on inaccurate data to credit reporting agencies, the U.S. Court of Appeals for the Ninth Circuit held March 1 (Nelson v. Chase Manhattan Mortgage Corp., 9th Cir., No. 00-15946, 3/1/02).

Judge John T. Noonan rejected the argument that 15 U.S.C. § 1681s-2(, which outlines the duties of furnishers once a dispute about the accuracy of their data on a consumer is noted, may not be enforced in a private cause of action. The court agreed with the Federal Trade Commission, which argued as amicus curiae, that Congress put no limit on private enforcement.

The plaintiff consumer cosigned a mortgage loan in 1995. In 1998, the other cosigner filed for bankruptcy. Even though the consumer continued to pay on the mortgage, he had trouble obtaining credit thereafter because the mortgagee bank reported to a credit reporting agency (CRA) that the account was in bankruptcy. When the consumer complained, the bank explained that its reports merely indicated that the account was affected by the bankruptcy, and that prudent lenders should follow up to ascertain whether the consumer in question had actually filed for bankruptcy protection. The bank also promised to inform CRAs in the future that the account had been affected by a bankruptcy filed by one, but not all, of the borrowers.

The consumer continued to have problems obtaining credit. In 1999, he obtained a credit report showing his credit history with the notation "included in bankruptcy." After being denied a truck loan, the consumer filed suit against the bank. The district court held that Section 1681s-2( does not permit a private action. The Ninth Circuit reversed.

Private Action Inferred

Under Sections 1681n and 1681o, the court said, Congress created a private right of action for consumers. In addition, Section 1681s-2(a)(1)(A) prohibits a "person" furnishing information "relating to a consumer" from knowingly furnishing inaccurate information. Subsection (1)( strengthens this prohibition, the court said, by prohibiting the furnishing of inaccurate information after notice of inaccuracy from the affected consumer. Subsection (2) imposes a duty on regular furnishers of credit information to correct and update their data, and subsection (3) requires them to notify CRAs of any disputes.

Most of the provisions of Section 1681s-2(a) are for the protection of consumers, the court said. Any doubt that a consumer can sue for their violation under Sections 1681n and 1681o arises from Sections 1681s-2© and (d), the court said. The former expressly provides that Sections 1681n and 1681o "do not apply to any failure to comply with subsection (a)," and the latter provides that Section 1681s-2(a) "shall be enforced exclusively" by federal and state agencies. Consequently, the court said, "private enforcement under §§ 1681n & o is excluded."

Section 1681s-2(, on the other hand, specifies what happens after a CRA receives notice of a dispute concerning the accuracy of information provided by a furnisher. Under this section, the furnisher has four duties: to conduct an investigation; to review all the relevant information provided by the CRA; to report its results to the CRA; and, if the information proves inaccurate, to report the results to all CRAs to which it has reported the information.

The bank argued that Section 1681s-2( does not even mention consumers, so the private actions authorized by Section 1681n and 1681o do not apply. This argument, the court said, "has specious plausibility" but "overlooks the fact that the notice which starts the process provided by ( is notice of a dispute as to the accuracy or completeness of information" contained in a consumer's file. When information in a consumer's file is disputed by a consumer, it is hard to say there is no "requirement ... with respect to a consumer" under Section 1681n, the court said.

Adopting the FTC's position, the court said that it can be inferred from the structure of the statute that Congress did not want furnishers exposed to suit by every consumer dissatisfied with the credit information furnished. Hence, Congress limited the enforcement of the duties imposed under Section 1681s-2(a) to governmental bodies. But it also provided a "filtering mechanism" in Section 1681s-2( by making the disputatious consumer notify a CRA and setting the CRA up to receive notice of the investigation by the furnisher. "With this filter in place and opportunity for the furnisher to save itself from liability by taking the steps required by § 1681s-2(, Congress put no limit on private enforcement under §§ 1681n & o," the court said.

Judges Alfred T. Goodwin and Stephen S. Trott joined the opinion.

Richard S. Rubin, Santa Fe, N.M., argued for the consumer. John F. Daly argued for the FTC as amicus. Gerald D. Waite, Kummer Kaempfer Bonner & Renshaw, Las Vegas, argued for the furnisher.

Full text at http://pub.bna.com/lw/0015946.pdf