Consumer complaint received 2018-12-19
Product: Credit reporting, credit repair services, or other personal consumer reports — Credit reporting
Issue: Incorrect information on your report — Account status incorrect
Company: Experian Information Solutions Inc. (GA)

I contacted XXXX on XX/XX/XXXX and XX/XX/XXXX requesting to have late payments removed from my credit report due to the fact that a retroactive deferment was granted for the student loans in question. I was told by XXXX that such reports could not be removed due to regulations of the Fair Credit Reporting Act ( FCRA ). Contrary to these assertions, by failing to update previously reported information, XXXX is in violation of Sections 623 ( a ) ( 1 ) and 623 ( a ) ( 2 ) of the FCRA as well as Sections 463 ( c ) ( 4 ) ( A ) and 464 ( h ) ( 1 ) ( A ) of the Higher Education Act ( HEA ).

The FTC released an advisory opinion which interprets Section 623 ( a ) ( 2 ) of the FCRA. The issue posed in the advisory opinion is  how a lender is to handle a situation when subsequent information updates a report that was allegedly accurate when it was made but no longer is accurate in the present time ( i.e., the identical situation I am currently in ). The advisory opinion states that Section 623 ( a ) ( 2 ) of the FCRA addresses the duty to correct and update information by furnishers, or persons who furnish information to consumer reporting agencies ( CRA ) such as the credit bureaus. In particular, this section requires a person that has furnished to a consumer reporting agency information that the person determines is not complete or accurate to promptly notify the consumer reporting agency of that determination and provide any information needed to make it complete and accurate. Thus, on its face, this provision requires a furnisher to provide corrected or updated information to the consumer reporting agency that it had reported to originally. This duty extends to all student loan accounts reported to CRAs, regardless of whether they were accurate at one point, because the section requires the furnisher both to update accounts as well as to correct. 

Section 463 ( c ) ( 4 ) ( A ) of the Higher Education Act similarly states that an institution shall disclose promptly to such consumer reporting agency any changes to the information previously disclosed. The US Department of Education issued an opinion that stated a retroactive forbearance/deferment acknowledges a period where no payments were due. If no payments were due, then a payment could not be considered late. A payment that was initially reported as being late would need to be changed after the retroactive forbearance/deferment takes effect. This change would legally need to be reported per the above statute and as per Section 464 ( h ) ( 1 ) ( A ) of the HEA, which states the institution that made that loan ( or the Secretary, in the case of a loan held by the Secretary ) shall request that any consumer reporting agency to which the default was reported remove the default from the borrowers credit history. 

XXXX representatives told me on XX/XX/XXXX that because the delinquent payments were accurately reported from XX/XX/XXXX to XX/XX/XXXX, any subsequently initiated deferments would not allow for XXXX to update reports to CRAs to show that the payments were not late and actually in deferment. However, this assertion is error as Section 623 ( a ) ( 2 ) of the FCRA and Sections 463 ( c ) ( 4 ) ( A ) and 464 ( h ) ( 1 ) ( A ) of the  HEA clearly show that the reports must be updated/corrected regardless of whether they were accurate at one point as they are no longer accurate at this present time due to the retroactive deferment. 

Continuing to report this clearly inaccurate information is in violation of Section 623 ( a ) ( 1 ) of the FCRA which states a person shall not furnish any information relating to a consumer to any consumer reporting agency if the person knows or has reasonable cause to believe that the information is inaccurate and a person shall not furnish information relating to a consumer to any consumer reporting agency if ( i ) the person has been notified by the consumer, at the address specified by the person for such notices, that specific information is inaccurate ; and ( ii ) the information is, in fact, inaccurate. The retroactive deferment granted in XX/XX/XXXX nullified any payments that were due and/or missed beginning in XX/XX/XXXX. Since the payments due were nullified ( i.e., no longer due ), there is no possible way that a payment could be considered late at this present time. Reporting that a payment was late when none was due is simply false and inaccurate. A reasonable person would doubt that a payment would still be considered late after a deferment was issued and a reasonable person would also expect that if a deferment was made to be retroactive, any penalties ( including late fees and late payment statuses ) incurred after the effective date would be nullified. 

All of my XXXX accounts that were late as of XX/XX/XXXX show that my deferment status was effective as of XX/XX/XXXX. Therefore, my credit reports do not currently accurately reflect previous payment statuses with XXXX, both as they actually existed and as XXXX has recorded them. I am thus requesting that in compliance with Sections 623 ( a ) ( 1 ) and 623 ( a ) ( 2 ) of the FCRA and Sections 463 ( c ) ( 4 ) ( A ) and 464 ( h ) ( 1 ) ( A ) of the HEA, that XXXX  be forced to update/correct the four accounts showing late payments from XX/XX/XXXX to XX/XX/XXXX. 

Internal XXXX rules and policies can not contradict, counteract, or circumvent the law. Continued inclusion of the erroneous late payment information places XXXX in willful violation of FCRA and HEA. To date, XXXX has refused to make the corrections to my credit report, despite being provided the information mentioned in this complain and being given ample opportunity. The law is clear as is XXXX XXXX  willful disregard for complying with it. At this time, I need help to ensure that this matter is resolved according to the law.