Creditor violated unilateral agreement

[Downto0]

My wife was a couple of months late on her loan payment. The creditor wrote and stated that:

You are late in making your payments. If you pay the amount now due bythe last day for payment, you may continue under the agreement as though you were not late.

We got our tax refund and made 3 payments well before the deadline. Things seemed to have gotten back to normal. She continued making payments without incident until the very end of the loan.

At that time she sent the final balance due so that the title would not be held hostage but disputed the remaining balance as it seemed a little high. I posted this issue and everyone said to pay for the title and then dispute.

Anyway, this is not the particular issue of this thread but it is what got me to looking at my wife's credit report. I noticed that the creditor had listed the tl as late when they had previously made an unilateral agreement with my wife that she could continue under the agreement as though she were not late if she made the payment by a certain date. As I said, she honored that agreement by making the payment in the allotted time.

I noticed that the creditor never returned the late fees as well.

So, am I right in thinking that the creditor should have, under their own unilateral agreement, not reported their tl as late and returned the late charges to her account?

Or, does the FCRA, in its demand for accuracy, require that the account still be reported as late since my wife was 2 months late on payments.

Which is the dominating authority, the FCRA or an unilateral contract? Didn't the creditor kind of put themselves in a catch 22 position? By their own contract, they could not report the account as late yet the FCRA demands that all information be accurate, so, should not the account be reported as late simply because it was?

Even if the later is so, the creditor, according to their own unilateral contract, should still return the late fees, shouldn't they?

I personally think that the lates should never have been reported and the late fees never assessed as fulfillment of the unilateral contract extinguished the late payments.

What exactly does "you may continue under the agreement as though you were not late" mean?

[legaleagle]

I would ask a consumer attorney about this, it could be a breach of contract case. They offered something in return for something, which your wife then performed. Now when it's their turn they sell you down the river and hurt your credit? Also, how about an FDCPA violation? Sounds like they just flat out lied to you in the process of collecting a debt, which as I understand, is a non-no. Coltfan will know more, he loves the FDCPA. Got himself a whole passle of creditor scalps hanging on his bridle. That's bridle, not bridal. Don't want to make him nervous. I know he'd love to have a wife, as long as it isn't his.

[Downto0]

Well, if he doesn't want the wife he's got I'm not sure that another one would do him any good. I have a cousin who had 3 wives thinking that each one would be different. He was kind of looking for number 4 but I think he finally realized it wasn't the wives that were the problem.

They offered something in return for something, which your wife then performed. Now when it's their turn they sell you down the river and hurt your credit?

These are my thoughts. I have the original letter with the offer, the statements, and a copy of my wife's cr to establish what happened. Now I'm doing a little research to see if there is an out for the creditor.

The time frame for the FCRA starts from when the consumer notices the violation. It's not one of those, "Nope, you paid it so you agreed with it", type of situations.

The only other thing I'm wondering is if the creditor could argue that they had to report their tl as late because she had been two payments behind. I think this would be a short-lived argument as their unilateral agreement would have extinguish the lates...as they said, "If you pay the amount now due bythe last day for payment, you may continue under the agreement as though you were not late."

I'm not sure if this creditor would be liable to the FDCPA, or not. I think they would be because they buy debts on a regular basis due another. They buy car loans that other creditors want to get rid of. They are not necessarily in default but they are still debts due another.

They seem to wear two hats. The monthly statements don't have the attempting to collect the debt warning on them but when they send a letter concerning a late payment the warning is there. On the other hand, their calls for missed payments don't have the collector warning.

I like to find FDCPA violations cause the NACA attorney's really like this statute.

I am contemplating a 623 dispute concerning the matter. They never responded to the first dispute my wife has already sent concerning the high balance at the end of the loan. TILA says that they can't report until they resolve the matter. They reported anyway.

My thoughts are that my wife should sent another dispute concerning the lates and give the creditor another chance to not respond thus another $1,000 from the FCRA.

[Downto0]

Update.

My wife sent in a 623 dispute and the creditor/collector did not respond. She then sent in a 611 dispute to the CRA's. They responded but only gave me a snippet of a report and I'm having a hard time analyzing the results.

It appears that TransUnion, who never had the tl listed as late during that time period is now listing it late for that time period. Experian is reporting the same and Equifax is reporting the tl as late but gives no date of the late.

You know, they do this stuff because they figure the common consumer will be confused and just give up. The few that do take them all to court does not bother them because they can get away with so much stuff if they just don't follow the law...and the miniscule fine for the few lawsuits seems to be like taking the change out of the petty cash drawer to buy coffee.

Anyway, the big question is concerning the unilateral agreement offered by the collector and fulfilled by my wife. Copying the same question from the bottom of my last post:

What exactly does "you may continue under the agreement as though you were not late", mean?

I get it that my wife was late on two payments but I don't get what my wife was supposed to get in return for her fulfillment of the unilateral agreement. My thoughts are that "as though you were not late" should be that all late fees originally assessed should be returned and the account should not have been reported as late to the CRA's.

Is this it or what else should have happened to continue as though she was not late?

As far as the violations, the ones that shout out at me:

§ 807. False or misleading representations

(8) Communicating or threatening to communicate to any person credit information which is known or which should be known to be false, including the failure to communicate that a disputed debt is disputed.

§ 808. Unfair practices

(1) The collection of any amount (including any interest, fee, charge, or expense incidental to the principal obligation) unless such amount is expressly authorized by the agreement creating the debt or permitted by law.

For any of these to be good, however, I need to figure out how the collector was supposed to perform after my wife fulfilled their unilateral agreement to her.

Suggestion?

[BrunoTheJDBkiller]

My wild guess is that they are saying the account is now current and will not be turned over for collection due to a default. However, the payments were late, and I don't think it is a violation for them to so report. Unless they said in their letter that they would remove the tradeline or not report it as late, I don't think you have much to go on. What she got for her fulfillment of the unilateral agreement was that there was no collection activity.

The monthly statements don't have the attempting to collect the debt warning on them

That's because at that point it is billing, not collection. Collection only occurs when there is a default per the agreement.

Since this appears to be an original creditor, correct me if I'm wrong, I didn't go through all your threads, the FDCPA does not apply. It only applies to third party debt collectors. Your gripe seems more like an FCRA claim, and I really don't see one here.

[BV80]

I'm not sure if this creditor would be liable to the FDCPA, or not. I think they would be because they buy debts on a regular basis due another. They buy car loans that other creditors want to get rid of. They are not necessarily in default but they are still debts due another.

Did the loan originate with this creditor? If not, was the loan in default when they purchased it? Also, was it a secured transaction?

Here's what 1692a says about the definition of a "debt collector":

The term does not include—

(F) any person collecting or attempting to collect any debt owed or due or asserted to be owed or due another to the extent such activity

(ii) concerns a debt which was originated by such person;

(iii) concerns a debt which was not in default at the time it was obtained by such person; or

(iv) concerns a debt obtained by such person as a secured party in a commercial credit transaction involving the creditor.

[Downto0]

Since this appears to be an original creditor, correct me if I'm wrong,

Can't tell you for sure at this point but they quack like a duck. They buy debts in default and collect for another. My wife's account had one late at the time they purchased the debt...the first late ever on that account. However, there was a mixup for a few months as to the payment date and the OC was registering the account (in their own records, not the CRA's) as late for a few months. It may be that the OC thought the account was going delinqent and sold to the new creditor/collector. My wife called the OC because she noticed the late fees being assessed and the OC said that they needed to change the payment date so that she would not always be late. We thought everything was okey dokey until we got notice from another creditor/collector that they owned the account and saw that it was listed as a negative account on her cr.

From what I have read thus far about them, it looks like they are considered a collector and their unilateral agreement contained the mini-miranda " This is an attempt to collect a debt and any information obtained will be used for that prupose. This is a communication from a debt collector".

Anyway the more important thing is the performance of the unilateral contract. I like your idea that they would not send my account to collections as it is probably what they would say but the agreement does not stipulate that this was their part of the agreement.

However, the payments were late, and I don't think it is a violation for them to so report.

This would also be their argument. However, they were not late because the agreement specifically said that the account would be treated as if it were not late. It's a vague statement and, I think, it covers all avenues of the late processes. It leaves out nothing. Every available late scenario must be included as none are excluded.

You may be totally right because they went ahead and reported the lates as late, my wife was late, and their part of the bargain could have been to not send the account to collections.

The problem for them is that they said "you may continue under the agreement as though you were not late" and I just don't see how reporting an account as late is not treating the account as late.

Did the loan originate with this creditor? If not, was the loan in default when they purchased it? Also, was it a secured transaction?

I just noticed your reply as I was finishing up and I think I already answered your question.

(iv) concerns a debt obtained by such person as a secured party in a commercial credit transaction involving the creditor.

It was a auto loan...does this fit?

[BrunoTheJDBkiller]

You have to clear this up. Who owns the debt?

[BV80]

An auto loan is usually a secured debt. You don't pay, the car gets repossessed.

From your post, I'm really not sure if the debt was considered in default when they purchased it.

[Downto0]

Yea, it's a mess. Actually, I'm going to post a case I found which will probably help. I'm also going to divulge the players as the debt is paid, the account is closed, my wife has the vehicle, and no collectors will be calling.

The creditor/collector who bought the auto loan was Santander...I know you guys have heard their name. They are some sort of international company out of Spain doing business in the US. They purchased the loan from Citi auto.

The debt was never listed as late by Citi but there was a time, as I explained above, where the payments were late for about 3 months because my wife had asked for a deferred payment but was not told that she also had to ask for a different payment date to match. Santander listed the account as late during that particular time so I'm going to assume that Santander bought the debt at or about that time and Citi told them that the account had some lates.

I have all the paperwork from Citi which establishes that the account should never have been listed as late. I sent that to the CRA's but, you know how it is, the non-paying customer does not get treated like the paying customers. In fact, it looks as if my wife's cr is worse because TransUnion is now listing lates that were not on her reports before. "Sorry, honey, I was just trying to help".

Anyway, here's one case where the loan was not in default and the court decided that Santander was not a debt collector. In Richard v Santander the court said:

In support of the motion defendant provided the affidavit of Mark Mooney ("Mooney), its Vice President of Loss Mitigation. According to Mooney, defendant is in the automobile finance business. As part of its business, defendant in 2008 began to acquire the loan portfolios of other auto finance businesses. After plaintiff financed her vehicle with the Creditor, defendant began servicing plaintiff's account on the Creditor's behalf, thus requiring plaintiff to make payments to defendant for the vehicle. However, according to Mooney, on or about August 27. 2010, defendant purchased plaintiff's account, and plaintiff continued making payments on the account to defendant. Thus, at the time defendant purchased plaintiff's account it was not past due. Further, when defendant began collection activities on plaintiff's account, defendant was the owner of the account, and so was making collection efforts on its own behalf, rather than any debt owed or due another. Plaintiff filed nothing to controvert defendant's assertions.

Santander + FDCPA - Google Scholar

As I said, my wife's account was delinquent. It should not have been, but it was. It's been reported as delinquent for the entire time Santander had the loan and and Santander kept the loand in adverse accounts the whole time they listed it...even though she made the payments.

My argument would be, then, that if the account is listed as delinquent when they bought it and listed in the adverse accounts section of the cr until this very day, even though it is paid and closed, that Santander bought the acount in default and serviced the account as an adverse account.

On a side note, you'll notice there was no mention of the secured loan as excluding them as a debt collector.

I appreciate any insight. I'd like to have FDCPA violation as they are easy to pursue.

Edited August 29, 2012 by Downto0

[Downto0]

Here's an interesting case out of Florida. In Deuel v Santander the court said:

the Contract only bolsters Plaintiff's allegation that Defendant is a debt collector (i.e., if the Contract evidences a debt owed to someone other than Defendant and Defendant attempted to collect it, Defendant may very well fall within the definition of "debt collector" as that term is defined in the FDCPA).

Santander + FDCPA - Google Scholar

The hard part will be to find something in my district, the 8th. Most of the cases I run across seem to be from the south.

[BV80]

Here's an interesting case out of GA. Pay special attention to the paragraph right before the CONCLUSION.

Comer v. JPMorgan Chase Bank, - Google Scholar

Here's a quote from the 7th Circuit Court of Appeals:

"In other words, the Act treats assignees as debt collectors if the debt sought to be collected was in default when acquired by the assignee, and as creditors if it was not." Schlosser v. Fairbanks Capital Corp., 323 F. 3d 534, 536 - Court of Appeals, 7th Circuit 2003.

However, read the next case from the 7th Circuit. It's not exactly like your case but it may have some similarities. It was based on a default on an agreement, but a new agreement was created, and that agreement was assigned to another creditor.

I know you're not in the 7th Circuit, but it might give you some ideas.

Bailey v. Security National Servicing Corp - Google Scholar

Edited August 29, 2012 by BV80

[nascar]

What exactly does "you may continue under the agreement as though you were not late" mean?

Your entire premise here is flawed. There is no "unilateral" contract. Your wife was already obligated to perform under the original agreement. There is no new consideration to support another "contract."

[Downto0]

My knowledge of contract law is very limited. Here is my reasoning for the unilateral contract being valid...or so I hope that it may be:

In a unilateral, or one-sided, contract, one party, known as the offeror, makes a promise in exchange for an act (or abstention from acting) by another party, known as the offeree. If the offeree acts on the offeror's promise, the offeror is legally obligated to fulfill the contract, but an offeree cannot be forced to act (or not act), because no return promise has been made to the offeror. After an offeree has performed, only one enforceable promise exists, that of the offeror.

Reward offers are usually unilateral contracts. The offeror (the party offering the reward) cannot impel anyone to fulfill the reward offer. An offeree can sue for breach of contract, however, if the offeror does not provide the reward after the offeree has fulfilled the contract's requirements.

Unilateral contract legal definition of Unilateral contract. Unilateral contract synonyms by the Free Online Law Dictionary.

I understand that just because an online dictionary says that I can sue does not necessarily mean that I can. However, it appears that all the elements of a suit are present except that I don't know exactly what the violations are.

Another thing...I've also read that two, or more, persons can make a contract and perform differently than the contract and, if no one complains, then performance replaces the actual contract. For example, If I originally agreed to pay a creditor $250 dollars per month on a secured item but only pay $200 and, the creditor does not object for a year, then it is likely that a court could rule that the $200 payment was legitimate as the creditor did not complain.

At any rate, if in my case, the contract rules then Santander still made and violated a unilateral contract they knew, or should have known was illegal. If Santander knew, or should have known that they could not perform as they promised then they violated something. What is it when someone offers a reward for performance by another and that someone knows that they cannot give the reward and then the offeree performs?

[BrunoTheJDBkiller]

I think we'd have to see excactly what agreement was in force and what it said.

[Downto0]

BV, interesting case. Here is an excerpt which kind of describes my wife's situation:

Of course a debtor may be in default of some debts and not others (default, unlike bankruptcy, is not a condition that permeates all of one's financial obligations). That is what happened in this case — the Baileys defaulted on their original note but then had it superseded by a renegotiated payment plan executed with HUD in which they owed a different monthly premium (perhaps not less than their original one because of accumulating late fees or penalties). The advantage of these renegotiated plans is quite clear — the creditor wins because he believes he'll be better off restructuring the loan obligation and perhaps even entering into an entirely new agreement rather than litigating or pursuing the typical remedies available to him by virtue of a default (acceleration, foreclosure, etc.). The debtor wins because in a sense his slate (and the previous default) is wiped clean under the terms of the new agreement so long as he stays current on his new obligations.

Isn't this similar to what happened in my wife's situation? She fell behind two months, Santander offered a renegotiated payment plan and my wife accepted by performing to the new payment plan. The difference may be that the litigants in the mortgage case actually met someplace and signed a renegotiation plan but, hey, what's the difference between signatures and performance?

I don't know the contractual differences between a mortgage and an auto loan but they both have signed agreements. If a mortgage can be modified then so couldn't an auto loan?

Ideas?

[BV80]

You are late in making your payments. If you pay the amount now due bythe last day for payment, you may continue under the agreement as though you were not late.

Here's my take on the above statement. The statement says "YOUmay continue under the agreement as though you were not late."

There's nothing in the sentence that states the creditor must do anything. It doesn't say "In return, Creditor will do this or that." It doesn't even imply such a thing.

If the contract outlined penalties for being late, perhaps the sentence merely means if you paid the amount due, those penalties would no longer be assessed. It doesn't mean past penalties such as late fees will be refunded ...just that they won't continue to be assessed.

By assuming the creditor must refund late fees or delete the lates on a TL based on the last part of the sentence ("as though you were not late"), you're assigning responsibility where none lies.

[Downto0]

I think we'd have to see excactly what agreement was in force and what it said.

That's the problem. There was the original generic agreement from the car dealership which my wife originally signed. Then there was the unilateral agreement which was not meant to supercede the orignal agreement but to somehow "amend" (for lack of a better word) the original agreement for two late payments.

BV80, how could my wife continue under the agreement as if she were not late if the creditor reported her as late? Yea, I know the unilateral contract does not state exactly what the creditor will do but it did state that my wife would not be considered as late.

A little analogy...if your boss generally fines you $10 for being late to work but then gives you the wink as you come in tardy and tells you, "I won't consider you late this time"' then you would not expect to have the $10 deducted from your paycheck, would you not?

[BV80]

That's the problem. There was the original generic agreement from the car dealership which my wife originally signed. Then there was the unilateral agreement which was not meant to supercede the orignal agreement but to somehow "amend" (for lack of a better word) the original agreement for two late payments.

BV80, how could my wife continue under the agreement as if she were not late if the creditor reported her as late? Yea, I know the unilateral contract does not state exactly what the creditor will do but it did state that my wife would not be considered as late.

A little analogy...if your boss generally fines you $10 for being late to work but then gives you the wink as you come in tardy and tells you, "I won't consider you late this time"' then you would not expect to have the $10 deducted from your paycheck, would you not?

No, it said that your wife could continue under the agreement as though she were not late. Notice the word "continue". It doesn't say it would be as if the past never happened.

That doesn't mean past late fees would be refunded or her past lates would be expunged from the CR. It means the required payment would prevent more late fees from being charged and no more lates would be reported to the CR.

Look at your own analogy. The boss said "this time". That had nothing to do with what took place before "this time".

[Downto0]

I don't agree at all with your last post at all. To continue with the agreement as though she were not late is a comprehesive statement and excludes nothing. How could one pick and choose what does and does not apply?

I'm sure Santander would argue your points but the simple fact is that the unilateral agreement does not specify what actions Santander must take..you've already state this in an earlier post. In general, what Santander must do is to continue my wife's contract as though she were not late.

You say that it does not mean returning late payments, reporting to the CRA's, etc. Where do you get this? The one-line unilateral agreement does not exclude any of these things.

My point is that since it does not exclude anything then it includes everything which would make my wife appear as though she were late.

[KentWA]

I think what they would argue is that they offered to allow her to cure a default rather than invoke remedies they had available in the case of default. She accepted by curing the default and they allowed the contract to continue as it existed. The offer did not modify the contract, but rather allowed the default to be cured by a given date. In the last example you gave with a mortgage, the terms and payments were changed by renegotiating the contract.

[BV80]

I don't agree at all with your last post at all. To continue with the agreement as though she were not late is a comprehesive statement and excludes nothing. How could one pick and choose what does and does not apply?

I'm sure Santander would argue your points but the simple fact is that the unilateral agreement does not specify what actions Santander must take..you've already state this in an earlier post. In general, what Santander must do is to continue my wife's contract as though she were not late.

You say that it does not mean returning late payments, reporting to the CRA's, etc. Where do you get this? The one-line unilateral agreement does not exclude any of these things.

My point is that since it does not exclude anything then it includes everything which would make my wife appear as though she were late.

Let me make sure I have something straight. By returning late payments, do you mean they should return all the late fees they charged because her payments were late?

Do you also mean they should delete all of the lates on her credit report?

[Downto0]

Kent you're spot on. It is a Notice of Right to Cure. I did not pay much attention to the heading of the letter but focused on the wording of the letter itself.

You gave me pause as a right to cure is not an unilateral agreement. If the offeree does not perform it is likely the offeror will act. However, I still have the same argument as to how Santander should have performed according to the wording in their right to cure.

She accepted by curing the default and they allowed the contract to continue as it existed.

This is what they did but not what they promised to do. For their argument to be good then they should have stated that she would be allowed to continue the contract as it exixted, not that she would have been allowed to continue under the contract - as thought she were not late.

Here's the body of the right to cure:

This notice is being sent to you concerning your default under the above referenced-Agreement, which is secured by the Vehicle.

******is the LAST DAY FOR PAYMENT

$*****is the AMOUNT NOW DUE.

You are late in making your payment(s). If you pay the AMOUNT DUE (see above) by the LAST DAY FOR PAYMENT (see above), you may continue under the Agreement as though you were not late. If you do not pay by that date, we may exercise our rights under the law. These rights include the right to repossess the Vehicle and the right, in many instances, to hold you personally responsible for any difference between the amount the property brings in a sale and the balance due us under the Agreement.

If you are late again in makeing your payments, we may exercise our rights without sending you another notice like this one. If you have any questions regarding this notice, promptly call us at *** *** **** or write us at the address shown above.

The first underlining we talked about. The next underlining, "we may exercise our rights under the law", we have not. What are there rights? Certainly they have the right to charge late fees and report the debt as late. Because they do not exclude these rights then they are included as an action they may take if the payments are not made on time.

Lastly, the third underlining. "These rights include the right to repossess the Vehicle and the right, in many instances, to hold you personally responsible for any difference between the amount the property brings in a sale and the balance due us under the Agreement". They specifically include these rights.

If they specifically did not intend to include late fees and reporting to the CRA's among "their rights under the law" then they should have said so, otherwise these rights are included in "their rights under the law".

One must remember that under the FDCPA that the facts are looked at as the LSC would see them, not as an attorney would see them. I can honestly tell you that neither my wife or I are attorneys. I can also tell you that this is how I understood the notice to cure - even to this day.

If Santander had no intentions of returning the late fees and intended to report to the CRA's regardless to whether my wife paid in time, or not, then they should have stated so. To not include these options as part of "as though she were not late" specifically does include them.

BV80, yes and yes. If she isn't late then she should not be charged a late fee nor should they report to the CRA's that the account is late.

I'll be turning this matter over to the attorneys and they'll have the final say as to whether my wife has a claim on this particular point. Sometimes they agree with me and other times they don't. You guys have helped me run the arguments through my head and I have a much better understanding of the event.

I'm going to look for some notices to cure cases to see if anyone has dealt with this issue with the courts.

[BV80]

This is why you're confusing me. If she isn't late, there shouldn't be any late fees. That's not what I asked.

If she was late, they had every right to charge late fees. There's nothing in the statement " you may continue under the Agreement as though you were not late" that implies the creditor is going to wipe out everything that happened in the past.

You said that the statement doesn't exclude returning late fees and deleting lates on your wife's CR. I say you're including provisions that aren't there

Again, you have to take into consideration the word "continue". Your wife could continue with the current contract as if she were never late.

Let's take into consideration a cc contract. It outlines what happens if your payment is late. You're considered in default, will be charged a late fee, and your interest rate may increase.

It usually then states if you make the REQUIRED payment on time for a number of months, the account will be current and the interest rate may decrease.

The agreement will NOT state that making timely required payments will result in the refund of past late payments. It simply means the account is now current.

When the creditor stated she could "continue under the Agreement" as though the she were never late, that meant she could continue under the terms of the current agreement.

What does the contract state? If it doesn't state that late fees will be refunded if you then make timely payments, you're adding a provision into the contract that isn't there..

I believe that if you made the payment they requested, that the account would then be considered current...up to date...no extras owed. That payment they requested included everything that was necessary to bring the account current so that no added charges would be added. That's what they meant by continuing as though she were not late.

It doesn't mean the past record would be deleted. In the case of our CRs, they are a history of our payment records. If you're late, you're late. Bringing an account current doesn't change the fact that you were late in the past.

[Downto0]

The problem with your cc agreement analogy is that all the details are right there as to what will happen in nearly every situation. One can usually read the contract and know what to expect.

The one line statement in the notice to cure said that my wife could continue with the agreement as if she were not late. It does not say whether they will or will not return the late fees or list the account as late.

However, Citi did perform in such a way with the account when they had it. My wife had her first late after making two years of payments. She called to "skip" a payment. They said okay and adjusted the payment to the ending balance and she had to pay the interest and a phone payment fee.

The next two statements continued to have late payments assessed so she called and asked why. Citi said that she had to also move the payment date. So, she moved the payment date and citi returned the late fees.

Technically, my wife was late three months but Citi adjusted the payment date and she was then not late. She was late but Citi did not consider her as late because they moved the payment date.

Point being...you are only late on a payment if the creditor considers you as late. It's up to the data furnisher to tell the CRA's whether a tl is late or not.

I don't think that a notice to cure has any set methods and each creditor is likely to differ at least some in the way they handle ntc's. Telling my wife that she could continue as if she were not late is a poor choice of words if they intended to treat her as if she is late. They should have said that she could continue the agreement and they would not repossess or send the account to collections.

Considering, or not considering, my wife as late has many ramifications. Without excluding any of the ramifications then all must be considered. None can be excluded.

Santander likely would argue the same points you are but considering my wife as though she were not late allows the assumption that Santander would not report her as late because they do not exclude reporting to the CRA's in the ntc.

Remember, the FDCPA goes by the LSC or unsophisticated level. What would the common consumer think? You and many others may know that a ntc is about possession and collections and does not deal with the reporting of the lates but Santander brought that issue into their ntc when they never should have.