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Hello Fellow New Yorkers:

 

The Experian Experience of NYState 380-j (the NYS 5-yr purge law) is now being investigated by the NY AG's office. PLEASE send a letter with your name, address, email, and phone to the address below. State in what way the Experian credit reporting agency's deviation from the norm has affected your ability to get a mortgage, rent an apartment, get insurance, get credit cards, and how you believed that the statute would protect you from vengeful reporting if you paid your debts in the spirit of the statute. WE FINALLY HAVE A CHAMPION. He gets it. Please mail him any sort of letter of complaint but make it personal in that you are being hurt as a consumer. If you IM me, I will send you a sample letter. The CFPB will not get involved in a state statute from my contact with them but will endorse anything stated by the AG of NY.

 

Van Voris, Esq.

Sr. Fraud Representative

Consumer Fraud and Protection Bureau

Office of the Attorney General
The Capitol

Albany, NY 12224-0341

 

Even if you don't have time to CMRRR, he is aware of the problem and is ON IT. help him out and write him so he has good reason to continue working on it.

 

Thanks, lets flood the AG office with letters naming Experian. thanks/ Liz

 

 

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  • 4 weeks later...

1) Except as authorized under paragraph two of this subdivision, no consumer reporting agency may make any consumer report containing any of the following items of information

 

 

. (i) bankruptcies which, from date of adjudication of the most recent bankruptcy, antedate the report by more than fourteen years;

 

 

(ii) judgments which, from date of entry, antedate the report by more than seven years or until the governing statute of limitations has expired, whichever is the longer period;

 

or judgments which, from date of entry, having been satisfied within a five year period from such entry date, shall be removed from the report five years after such entry

 

(iv) accounts placed for collection or charged to profit and loss which antedate the report by more than seven years;

 

or accounts placed for collection or charged to profit and loss, which have been paid and which antedate the report by more than five year -

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ICANHASMUNY- What bravegirl, reader65, and other readers of CB have been referring to is:

 

"or accounts placed for collection or charged to profit and loss, which have been paid (BY SOMEONE_ MY INSERTION) and which antedate the report by more than five year -:Both TU and Equifax use the DOFD as the five year benchmark.

 

Both TU and Equifax have interpreted this to mean those OC's who have have accounts in collection, and then charged off (usually 180 days from last payment) and they have then sold them to either CA or JDB or some other third party... So if you paid the CA or JDB, or if those seconday parties (O/C's) have been paid by those third parties (C/A or JDB)... then they have been paid (in some amount, with prejudice), and the balance written off to a loss and the account is carried at -0- balance. For example, Cap One put my a/c into collection and then sold it to Portfolio Recovery, and then Portfolio and I settled the account for less than a full balance owing to many questionable charges... It was not paid in full and this was reviewed by a judge who agreed with the final figure arrived at between PR's attorney and me. Both Cap One and Portfolio Recovery have been removed from my CRA by both TU and Equifax as have other such accounts handled in that fashion.

 

This has been discussed at length between various CB readers and Mr. VanVoris of the AG's office of Consumer Fraud in Albany, in that there is no way to pay an original creditor if they have sold their position and carry the account as -0- owing.Whether the JBD/CA has given up or persued the debt or settled, the OC is deemed paid if they they have sold their position in the credit to another lender or JDB or CA. It does not necessarily apply if an INTERNAL C/A is being used, only an outside agency who has assumed the financial position and has paid for their right to collect. The O/C must report the balance as -0- which indicates that they have sold their financial position in said debt.

 

I also discussed this with Schlanger and Schlanger, a well known consumer rights attorney in NY and we are settling the only OC on my Experian account who was not clearly settled with a third party (the payments were to Citi directly and then they reneged on the written contract). I did the same with Discover and Capital One and paid them directly, through negotiations with their collection attorney, though not in full. The issue that is pending is that OC's who have sold their interest cannot be legally paid for the same debt that has been satisfied with their designated CA or JDB. The purpose of the statute, as I understand it, is to reward those debtors who have tried to pay as much as can be paid through settlement vs. dodging the debt altogether. That purpose is thwarted if the OC remains on the CRA after the CA or JDB has been settled. There is some question, obviously, if the CA or JDB cannot validate the debt and the OC cannot legally collect on same as they have sold their financial interest and been "paid" in some part.

 

Am I missing something? I am not a lawyer but I worked for banks for twenty years and I went to business school specializing in business law...I don't know the history of GBS 180J but it has been a godsend to New Yorkers with the exception of these not so odd situations, which are not clearly defined. TU and EQ have worked with them to most consumer's satisfaction but Experian says that their definition of Paid (and Paid to Whom) usurps the CFPB's definition... and that is where the fracas has originated from. We are not looking for a free ride but we do wish to benefit from the spirit of the law vs a vindictive interpretation by a CRA attorney. We still have a 6 year SOL so it is a matter of being able to responsibly rebuild credit vs a play on words.

 

I would welcome any further information and I bow to your expertise as I am just an armchair New Yorker trying to make my credit life responsibly reborn. I welcome all comments from readers... the double whammy is a real problem and it is a two year hit after what is usually a 50% payment (the judge usually excludes the 30% interest accumulation and you pay for the actual amounts charged...it is a LONG excel spreadsheet exercise breaking out charges, interest, fees, and msl. charges).

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One more note: a TU or EQ credit rating can often differ by 150-200 points over Experian due to this issue which means that your credit pull receiver is what dictates your future vs. a consistent credit report between the three agencies... If facts is facts, then all three should use the same information to determine what your credit score is...

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Thank you= however, we are talking about Experian using their own attorney's VS. FCPB (Federal) definition to support their interpretation of a New York Law. So does a CRA own sourced legal definition trump a FCPB definition? we are talking about a CRA vs a federal definition...which is supposedly in concert with FCRA. If we accept that Experian ACCEPTS in some form the NY GBS 180-J, in that they will delete fully satisfied collection accounts, then we are talking about once again a FEDERAL definition vs a CRA, that flies against the practice of the two other major reporting agencies. It would be like FCRA stating a SOL that applied to all states... Texas would still be four years come hell or high water.

 

I am not saying that everyone should not play under the same rules (NY is 6 yrs SOL unless OC is in a lessor SOL state)...but if NYS says 5 years for a statute and only one CRA uses a non federal definition, I say that it is a worthy fight. And the intent of the law, as I understand it, is to reward debtors for cleaning up their debt, so OC vs CA become semantic because you can't owe two people for the same debt. The OC has written it off and stated it as -0- balance due and taken the tax write off. Plus, generally accepted accounting law says that the debt is considered -0- after 180 days... and if it is charged off, with the tax consequences, they can still come after the consumer if they have not sold their economic position in the debt after they have written off. It is sort of like a pit bull with a bone...If they are willing to not sell it to a CA, they can still sue a debtor within SOL. Yet another question is : if the SOL precludes them from suing, and they have written off the debt and taken a loss in the AICPA defintion, and there is no possible collection activity, why are they reporting a balance due? Example, Dell, which was in Texas, cannot legally collect from a debtor after four years... and if the last payment was prior to the 5 yrs in NYC (or seven years, 180 days in other states), is it logical to see that as a CRA reportable account due...or is it logical nonscense? I realize that these are particular situations that happen but they are real and they lead, most importantly, to the issue of a fair and equitable reporting system where the same information is used by all CRA's vs. an inconsistant system...

 

We are not talking about non returned goods, we are talking about a federal definition that was brought about by reasoned discourse, given the date of the opinion.. April of this year.... Does FCPB act in concert with FCRA and if so, does it supercede state law and/or CRA conduct? Again,I wish I had more legal experience but I am depending on logical business law and my experience in banking and the intended effect of the law that we are discussing. thank you for contining to engage on this issue... There is a logical disconnect on the law and the federal defintion and Experian is not conssitent with either one, in my opinion...

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Thank you= however, we are talking about Experian using their own attorney's VS. FCPB (Federal) definition to support their interpretation of a New York Law. So does a CRA own sourced legal definition trump a FCPB definition? we are talking about a CRA vs a federal definition...which is supposedly in concert with FCRA. If we accept that Experian ACCEPTS in some form the NY GBS 180-J, in that they will delete fully satisfied collection accounts, then we are talking about once again a FEDERAL definition vs a CRA, that flies against the practice of the two other major reporting agencies. It would be like FCRA stating a SOL that applied to all states... Texas would still be four years come hell or high water.

 

I am not saying that everyone should not play under the same rules (NY is 6 yrs SOL unless OC is in a lessor SOL state)...but if NYS says 5 years for a statute and only one CRA uses a non federal definition, I say that it is a worthy fight. And the intent of the law, as I understand it, is to reward debtors for cleaning up their debt, so OC vs CA become semantic because you can't owe two people for the same debt. The OC has written it off and stated it as -0- balance due and taken the tax write off. Plus, generally accepted accounting law says that the debt is considered -0- after 180 days... and if it is charged off, with the tax consequences, they can still come after the consumer if they have not sold their economic position in the debt after they have written off. It is sort of like a pit bull with a bone...If they are willing to not sell it to a CA, they can still sue a debtor within SOL. Yet another question is : if the SOL precludes them from suing, and they have written off the debt and taken a loss in the AICPA defintion, and there is no possible collection activity, why are they reporting a balance due? Example, Dell, which was in Texas, cannot legally collect from a debtor after four years... and if the last payment was prior to the 5 yrs in NYC (or seven years, 180 days in other states), is it logical to see that as a CRA reportable account due...or is it logical nonscense? I realize that these are particular situations that happen but they are real and they lead, most importantly, to the issue of a fair and equitable reporting system where the same information is used by all CRA's vs. an inconsistant system...

 

We are not talking about non returned goods, we are talking about a federal definition that was brought about by reasoned discourse, given the date of the opinion.. April of this year.... Does FCPB act in concert with FCRA and if so, does it supercede state law and/or CRA conduct? Again,I wish I had more legal experience but I am depending on logical business law and my experience in banking and the intended effect of the law that we are discussing. thank you for contining to engage on this issue... There is a logical disconnect on the law and the federal defintion and Experian is not conssitent with either one, in my opinion...

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you really don't get it..... federal courts have already weighed in on this, your argument is dead in the water.

 

Prakash v. HOMECOMINGS FINANCIAL, Dist. Court, ED New York 2006

 

Dickman v. Verizon Communications Inc., 876 F. Supp. 2d 166 - Dist. Court, ED New York 2012

 

District courts have adopted different approaches to address this contradiction. Under the "statutory approach," Section 1681t(B)(1)(F) "preempts only state statutory claims against furnishers of information." Prakash, 2006 WL 2570900 at *5 n. 8 (citing Manno v. Am. Gen. Fin. Co., 439 F.Supp.2d 418, 425 (E.D.Pa.2006)). Under the "total preemption" approach, Section 1681t(B)(1)(F) "preempts both state statutes and common law causes of action that related to the subject matters listed in [section 1681s-2]." Id. at *5 n. 9. Finally, several courts within this Circuit have adopted the "temporal approach," see id. at *5; Kane, 2005 WL 1153623 at *9, pursuant to which:

tate law claims based on actions of a furnisher of information after the furnisher has received notice of inaccuracies are held preempted by § 1681t(
B)
(1)(F), while actions taken before notice has been received may not be preempted. It is important to note that the notice referred to here need not be from a credit reporting agency, as is required to sustain a private cause of action under § 1681s-2(
B)
of
FCRA
; notice may be received from [ ] a credit reporting agency or from the consumer himself.

Kane, 2005 WL 1153623 at *8 (i

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you would be better off using the FCRA where duplicate reporting of negative accounts is not allowed;

 

when mortgages are transferred around, the previous lenders do not remain on your report; and that listing this under derogatory / charged off accounts is duplicate reporting regardless of a balance listed or not.

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  • 3 months later...

ICAN,

 

Doesn't the case law you site relate to credit furnishers such as original creditors ? CRA's are not credit furnishers but just collect the information.

 

NYS 380 relates to the the CRA's specifically and the 5 year rule governing reporting of paid accounts.

 

Also, would state law trump federal if the state law provided greater protection for the consumer ?

 

Has anyone tried to sue Experian in NYS for this ?

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ICAN,

 

Doesn't the case law you site relate to credit furnishers such as original creditors ? CRA's are not credit furnishers but just collect the information.

 

NYS 380 relates to the the CRA's specifically and the 5 year rule governing reporting of paid accounts.

 

Also, would state law trump federal if the state law provided greater protection for the consumer ?

 

Has anyone tried to sue Experian in NYS for this ?

I just spoke to an well respected credit attorney about this. He said that his reading of the very badly written NY380J is that state law does prohibit and that a class action suit of consumers with paid (full or partial settlement) paid accounts would most likely prevail. He just needs a roster of those people. He has three major class action suits going on. He does not see a Federal prohibition of a lessor time, merely a prohibition against a greater time. He said the issue is to get enought people for the NY AG to demand discovery of all consumers with over 5 year paid or settled accounts that are on Experian's records. I tried to get some here but no one responded. Are you in NYC or nearby? PM me please.

you would be better off using the FCRA where duplicate reporting of negative accounts is not allowed;

 

when mortgages are transferred around, the previous lenders do not remain on your report; and that listing this under derogatory / charged off accounts is duplicate reporting regardless of a balance listed or not.

ICAN, could you give me the specific statute on this one? Thanks so much.

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I'm in Suffolk county.

 

My 5 year deadline is October 1. I sent Experian a copy of a notarized small claims court complaint for 5k if my items are not deleted by then.

 

If they want to sent their attorney to answer the complaint, they can. I would like them to explain to a judge how settled is not paid or satisified.

 

I know the small claims suit can not compel them to remove the data, I'm just trying to use this as leverage so they will not bother to show and just delete.

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Jurisdiction is EVERYTHING, regardless of whom ruled where..Civil Rules of Procedure, Torts etc is a funny thing.. So if the AG wants to run with it let him, they have an endless bankroll.. (as long as everyone pays their taxes lol)

The fact there is a NY state law is even more awesome...

So far TX and NY seem to be on a roll with consumer protection statues!

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I dont see how it is in Experian's best interest to show up and defend a small claim case like this. What do they have to gain ? They have to pay an attorney to show up unless they are on retainer.

 

And a reasonable person would not interpret and law like they do with regards to the 5 year rule so I don't see how a judge rule rule in their favor.

 

This is a state law so Experian can't even move to federal which is more problematic for pro se people.

 

I think they are better off just deleting the data in these cases and make them go away. But looking at the number of lawsuits in NY on Pacer, it looks like Experian does not settle these matters before they get to the lawsuit stage.

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ok.

 

I'm sure there must be a case somewhere in NY state where this was decided. Unless Experian settled before it got to that point to avoid any court decision on this.

 

Experian, and the other 2 CRA's , are just shills for the large banks and it is in their best interest to keep the most negative information on consumer reports for as long as possible.

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I have been in contact with the AG's office on this one. Ex alone won't honor it, TU and EQ will.

 

The AG's office WELCOMES letters of complaint.. they need more imput to get progress on this to do something about it.

 

If you PM me I will send you the correct name and address. and the issues that they are looking at.

 

I am sure you are correct... EX is putting everyone on this in "special handling" CSR... to keep a lid on it.

 

I as well as a few others are total PIA's on this.

 

May I welcome you to this close community of aggrevated consumers?

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Sure.

 

But I'm not sure how timely the AG will be on this. First of all, how many complaints will be enough before they act ? 100? 1000 ?

 

I'm in my 50's and think I will be 6 feet under before the AG does anything meaningful.

 

The only thing creditors and CRA's respond to are complaints and private arbitration. Equifax and Transunion at first gave me a hard time about the 5 year rule. I sent a notarized complaint that quickly fixed that.

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