PLS HELP: Bank still report to CRA after 4 years (SOL)

[lanwarrior]

All,

I have a really interesting issue that I hope any of our resident expert can help. Here it goes:

I have a collection with Capital One Bank (Shows as CAP ONE BK in CR). The collection starts in 2002. It now has been 5 years and Cap One still updating my credit report (CR) even until this month. However, no collection attempt has been made by Cap One or other collection agency.

I have written a letter to Cap One for debt validation and ask them to provide:

- How the current amount was calculated

- Evidence that I own the debt legally

- Statute of Limitation has not expired

However, Cap One NEVER responded to my request, even though I know they received it (Via USPS return receipt mailer). I asked the CRA to remove the account, and TransUnion complied but NOT Equifax (EF) and Experian (EX). Both claim that Cap One validated the account. However, recall from the above that Cap One never responded to my request. I am now writing back to EF and EX to provide the contact info of Cap One that validate the accounnt accuracy to both CRA, based on California Civil Code Section 1785.16(d)(4).

My question is, if the CRA still doesn't want to remove the above account, is there any way I can report Cap One Bank for deceptive debt collection practice? The issue is:

- Cap One Bank never responded to my request for debt validation (Fair Debt Collection Practices Act, 15 USC 1692g Sec. 809 (

- The Statue of Limitation has expired (it has been 5 years) under California law.

- Cap One reported the collection account even when the above occurs.

If yes, who do I report this to? I found this in Federal Reserve website: http://www.federalreserve.gov/Pubs/consumerhdbk/complaint.htm. Specifically:

If you have a complaint about a bank or other financial institution, the Federal Reserve System may be able to help you. The Federal Reserve System investigates consumer complaints received against state-chartered banks that are members of the System. Complaints about these types of banks will be investigated by one of the 12 Federal Reserve Banks around the country. The Federal Reserve will refer complaints about other institutions to the appropriate federal regulatory agency and let you know where your complaint has been referred. Or you may write directly to the appropriate federal agency by referring to the listing at the end of this publication. Many of these agencies do not handle individual complaints; however, they will use information about your credit experiences to help enforce the credit laws.

Fair Credit Billing Act. A creditor who breaks the rules for the correction of billing errors automatically loses the amount owed on the item in question and any finance charges on it, up to a combined total of $50 even if the bill was correct. You as an individual may also sue for actual damages plus twice the amount of any finance charges, but in any case not less than $100 nor more than $1,000. You are also entitled to court costs and attorney's fees in a successful lawsuit. Class action suits are also permitted.

Fair Credit Reporting Act. You may sue any credit-reporting agency or creditor for breaking the rules about who may see your credit records or for not correcting errors in your file. Again, you are entitled to actual damages, plus punitive damages that the court may allow if the violation is proved to have been intentional. In any successful lawsuit, you will also be awarded court costs and attorney's fees. A person who obtains a credit report without proper authorization or an employee of a credit-reporting agency who gives a credit report to unauthorized persons may be fined up to $5,000 or imprisoned for one year or both.

Please advise.

[lanwarrior]

I want to add that I contacted Cap One Bank using the address that is listed in my credit report, which is different than the one shown in BBB website or even Cap ONe Bank HQ. However, the city and state is the same.

[Ahntara]

"...has been 5 years...Cap One still updating my credit report..."

Reporting is regulated by the (federal) Fair Credit Reporting Act. From the FCRA, Title 15 USC 1681c, subsection 605(a)(5) "Information excluded from consumer reports...Any other adverse item of information...which antedates the report by more than seven years...". There is a sticky at the top of the page.

"...Equifax...and...Experian...claim that Cap One validated the account..."

They probably reported that Cap One VERIFIED the account, not validated. Two different things...

"...I am now writing...based on California Civil Code..."

The CRA's (barely know) follow the FCRA, not state law.

"...any way I can report Cap One for deceptive debt collection practice..."

Not for following federal law. If you owe, haven't paid or settled and this is within legal Reporting Period, there is nothing deceptive going on.

"...Cap One never responded..."

That's between you and Cap One. You can bring a suit under the statute you mentioned IF it has a private Cause of Action. It has no bearing on what appears on your CR. That's regulated by the FCRA. IF you were to prevail in court, you could add a settlement clause to require Cap One to discontinue reporting, a big IF.

"...Statute of Limitation has expired..."

That means you have an affirmative defense if you were to be sued (and you actually answered the suit). It has no bearing on what appears on your CR. Once again, that's regulated by the FCRA.

"...Cap One reported...even when the above occurs..."

Once again, look to the FCRA. There is nothing illegal, unusual or atypical here.

"...Federal Reserve..."

The Federal Reserve regulates their member banks. Cap One is not one of those. The proper authority to complain to is the Federal Trade Commission. This is always a good idea because the FTC keeps records of consumer complaints against creditors and the CRA's. But they will never take action on any specific consumer's behalf.

[lanwarrior]

"...has been 5 years...Cap One still updating my credit report..."

Reporting is regulated by the (federal) Fair Credit Reporting Act. From the FCRA, Title 15 USC 1681c, subsection 605(a)(5) "Information excluded from consumer reports...Any other adverse item of information...which antedates the report by more than seven years...". There is a sticky at the top of the page.

They not only report it, but keep on updating it. So in 09/07, the report it as CO, 10/07, 11/07, and so on. It has been like that for the past 4 years. So that record shows as "current" and will never be removed by the CRA because it never been 7 years.

"...any way I can report Cap One for deceptive debt collection practice..."

Not for following federal law. If you owe, haven't paid or settled and this is within legal Reporting Period, there is nothing deceptive going on.

"...Cap One never responded..."

That's between you and Cap One. You can bring a suit under the statute you mentioned IF it has a private Cause of Action..

I mentioned deceptive debt collection because:

1) I requested validation on this debt. If they did NOT respond at all, aren't they supposed to remove the record? I have wrote 3 times to them. BTW, their address stated in my CR has no number, CRA report that it's "by mail only" so I can't call them.

2) If the SOL have expired, aren't they NOT supposed to update the record?

My though is based on these 2, I can file a complain (not sue, yet).

"...Federal Reserve..."

The Federal Reserve regulates their member banks. Cap One is not one of those. The proper authority to complain to is the Federal Trade Commission. This is always a good idea because the FTC keeps records of consumer complaints against creditors and the CRA's. But they will never take action on any specific consumer's behalf.

That's interesting. Based on the descriptions on the Federal Reserve website, I thought they WILL take action against bank or at least accept complaint by the consumer regarding FCRA.

All in all, are you saying that the creditor have the right to keep on updating my CR for the rest of my life and are not required to respond to debt validation request?

Example:

1) 7 years passed, CR removed the record, then creditor update again. Another 7 year passed, CR removed the record, but then creditor update again and so on.

2) I wrote request for debt validation, they don't have to respond at all.

[nascar]

They not only report it, but keep on updating it. So in 09/07, the report it as CO, 10/07, 11/07, and so on. It has been like that for the past 4 years. So that record shows as "current" and will never be removed by the CRA because it never been 7 years.

Monthly updates will change the status date, but not the original delinquency date. That's what the 7 year period is based on. It will fall off when its supposed to.

[lanwarrior]

Monthly updates will change the status date, but not the original delinquency date. That's what the 7 year period is based on. It will fall off when its supposed to.

So after 7 years, Cap One CANNOT report my debt or ask the CRA to ADD the SAME account again, because that account has the original deliquency date that has passed 7 years?

Have it ever happen whereby the bank AND the CRA disregards this and just RE-ADD the record again after 7 years, thus UPDATING again EVERY MONTH?

I am just wondering here because both the CRA and the creditor is not responding to my request AT ALL, so if they RE-ADD the account after 7 years, what's stopping both of them from ignoring me and keep my credit bad for the rest of my life?

[DucknCover]

They can update the trade line every month. It will drop off when it should at the end of the 7 year reporting period.

[myscoresawful]

Have it ever happen whereby the bank AND the CRA disregards this and just RE-ADD the record again after 7 years, thus UPDATING again EVERY MONTH?

yes, they can, but it's not legal. (The CRA will go by what the CA or OC report, so they might disregard your word against the OC/CAs) For example, my Crap one acct became obsolete back in June of this year, (the 7 years was up then). What did they do to keep it on my CR? They *reaged* it to show that the DOLP was June of 2002. I can prove otherwise and have disputed witht he CRA the DOLP, if it comes back verified, I am going to sue. (I have already been to court with them and won, so this is just another violation to add to the growing list with them)

BTW, Cap 1 keeps good records. I doubt that they have disregarded your request for validation because they can't prove it.

[Ahntara]

"...keep on updating it..."

Updating the 'Date Last Reported' does cause the TL to impact your score significantly. It makes it SEEM recent and therefore dings your score in the History category.

Other than that (which is a function of scoring software, not Cap One or the CRA's) updating is legal, normal, customary (especially for Cap One) and typical. As others have pointed out, this is not re-aging and has no effect on when the TL will be shielded from view. Cap One reports/updates all TL's monthly. It's their business policy. The update simply reflects the month/year they last provided data to the CRA about the TL. It's not re-aging.

"...will never be removed..."

Regardless of when the TL was updated, the date it will be shielded from view is based on the formula in the FCRA. You may wish to read this over and over until you understand it. It's in 1681c, subsection 605. There is a sticky at the top of the page.

"...if they did not respond at all, aren't they supposed to remove..." (Where did you get this from?)

Just because Cap One didn't respond to YOUR request for validation doesn't mean they didn't respond to the CRA's electronic request for verification. Actually, you said they DID!

"...Both claim that Cap One validated the account..." (from your first post) So, they did respond, just not to you. And the CRA's responded to you and passed on the results of your requested investigation.

"...If the SOL have expired, aren't they NOT supposed to update the record..." (Where are you getting this from?)

SOL is state law concerning how long you may be sued to recover money owed and the ramifications should judgment be granted. It has no bearing on credit reporting, which is regulated by the FCRA. My suggestion is for you to print out, read and highlight a copy of the FCRA for your reference. That should help clear up some of these misconceptions.

"...I can file a complain..."

Sure you can. You can file with the wrong agency, the Federal Reserve Board or the correct one, the Federal Trade Commission. Nothing is going to happen with either complaint, except getting microfished and filed away, perhaps responded to with a form letter; so go ahead.

"...I thought they WILL take action, or at least accept complaint..."

The Federal Reserve Board WOULD take action against one of their member banks if you filed a valid complaint. As previously stated, Cap One is NOT a federal reserve Bank, they are a financial business entity, focusing on credit cards accounts in this division.

The Federal Reserve system monitors, distributes and regulates MONEY, not credit reporting. You can find more in-depth information about what they actually do by re-reading their website.

"...creditor have right to keep updatng my CR for the rest of my life..."

The length of time derogatory data is allowed to appear on your CR is determined by a specific formula in the FCRA. It's found at 1681c, subsection 605(a) and ©.

"...debt validation, they don't have to respond..."

They don't have to respond to you in order to report and update your CR, as long as the debt is within valid RP, per the FCRA. From your OP, this one is. You said this debt "...started in 2002...". If that's an accurate starting date, it may appear for two more years per the FCRA. There is nothing illegal going on here, but there is a lot of misunderstanding.

[lanwarrior]

Thanks for the explanation!

I just received a collection letter from a collection company, NOT Capital One. Apparently, Cap One just passed my request for debt validation to a collection company.

So I think this changes everything: now I am dealing with a collection company.

Again, it's has been more than 2 years so I can counter-argue the them about the SOL, right?

[Robert Nashville/Savannah]

IMHO, unless you intend to pay/settle the account there is really no reason for you to go through the DV process on a debt you know is past the SOL and which you can substantiate is past the SOL should they/someone ever sue you.

I would simply write a letter (CMRRR of course) and tell them that you dispute this debt in its entirety, that in any event, it is out of statute and to cease and desist all collection action.

[Ahntara]

"...tell them that you dispute..."

I agree.

You can forget about SOL until and unless you get sued over this...then SOL would become an affirmative defense.

[lanwarrior]

Thanks for the advise guys.

One more thing: I searched in my credit reports from all 3 bureaus and I didn't see the date when the collection start. The only thing I see is the date when the account first reported as charged-off (2002).

As mentioned in my earlier posts, Cap One just kept on updating my report with the Charge-Off status every month, including this month.

I know the CA SOL is 4 years from the time the debt becomes bad, which I assume collection / charged-off status.

So based on the above and your recommendation, I should NOT write a DV letter, but write a DISPUTE letter. In such letter, are you suggesting that I just wrote that I dispute the debt because of SOL? But you mentioned in your post that I should "...forget about SOL..." If I don't mention SOL, what reason I am disputing the debt then?

Please advise.

NOTE: What's CMRRR btw?

[Ahntara]

"...didn't see the date when the collection start..."

This date usually isn't published. One of the CRA's (TU, I think) has a 'estimated date of removal' and you can sometimes count backwards from that. The FCRA, 1681s-2 subsection 623 requires Data Furnishers to provide the Date of First Delinquency (DOFD){immediately preceding CO or collection} within 90 days of supplying info to the CRA's. This is the beginning of Reporting Period (FCRA 1681c, subsection 605). So the CRA's have the date. You just have to contact them separately to obtain this.

"...CA SOL is 4 years..."

The fact that you mention SOL once again indicates that there is still some misunderstanding on this issue. SOL determines how long you may be sued and the ramifications should judgment be granted. It has no bearing on credit reporting, which is regulated by the FCRA. To use SOL as a dispute reason would be a waste of time and may get your dispute flagged as 'frivolous' by the CRA's. You want to avoid THAT at all costs.

"...what reason am I disputing the debt..."

What is inaccurate about the tradeline or any other information (for example: an old, possibly inaccurate address) in your CR? Use each and every inaccuracy as a separate dispute reason. Your goal is a lack of verification and it's result - the TL getting shielded from view.

CMRRR = Certified Mail, Return Receipt Requested

[brokeinok]

The statute of limitations is four years in California, not two years.

[lanwarrior]

Ahntara,

I mentioned SOL because this will be the reason I will state to the debt collector that the debt is no longer valid because it's beyond the SOL, thus they can no longer can chase me for the debt as it has been too old. I was not referring about the credit report or the CRA. Sorry if I mistate this.

I saw on http://www.bcsalliance.com/y_debt_sol.html and it says that:

You do not have to pay debt that is considered too old by your state. Every state has laws governing the time in which a person or entity can file suit to collect a debt...

The purpose of these statutes of limitation is to bring some measure of fairness to the debtor so that he / she (1) will not have to worry about being sued for the rest of their lives; and (2) so that the debtor can properly defend himself with fresh evidence and witnesses, if any.

If a debt collector contacts you regarding an old debt, do not admit that you owe the debt and do not agree to make any payments. Simply tell them that the "statute of limitations has run on this debt and do not contact me again". If they continue contacting you, send them a certified letter, return receipt requested, telling them not to contact you about the debt again. Remember -- DO NOT ADMIT THAT YOU OWE THE DEBT, DO NOT AGREE TO PAY THE DEBT, AND DO NOT AGREE TO SEND ANY MONEY TO THEM. If you do, then the statute of limitations might start running all over again, giving them the legal right to sue you.

So my plan is to write back to the debt collector (NOT Cap One or the CRA).

Is my understanding correct?

[Ahntara]

"...SOL...debt is no longer valid..."

You still seem to misunderstand SOL.

"...they can no longer chase me...as it has been too old..."

Not so. SOL is the time period during which a valid suit may be brought against you. The expiration of this time period does NOT invalidate the debt, regardless of internet posts. It can be worked as a collection indefinitely. Practically, collection efforts on 'old paper' have no teeth post SOL and RP, but they CAN be worked. There's tons of posts here about efforts to collect old debts and especially the scam to open a new account that rolls over an old debt into a new account.

Past SOL you can still be sued. SOL provides an affirmative defense to a suit at that point, but you would have to answer the summons. If your state has a Statute of Repose - THAT extinquishes a debt upon expiration of SOL. Only two states have that law. I'll leave it to you to research which ones those are.

You wouldn't want to tip your hand as to the expiration of SOL prior to answering such a suit in court. A smart consumer wouldn't mention this in correspondence. Most collectors don't care about expiration of SOL. They just want your money (their money = commissions).

If you are disputing with the OC, send a request for an investigation per the FCRA.

If you are disputing with a CA, send a DV request.

If you disputing with the CRA's, dispute based on any inaccuracies listed in your CR, whether in this TL or elsewhere in the report. Rinse and repeat until you achieve the desired result or until they stop you with a 'frivolous' designation.

[Textoy]

Didn't see this in this thread, but the CA could also post the debt to your CR. It would drop off your CR at the same time the OC listing falls off your CR under the collections section. OC lists as a CO, CA reports as a collection.