Under Appendix E of 12 C.F.R. § 1022.42(b), the policies and procedures of a furnisher of information to credit reporting agencies (e.g. a credit card issuer) must be reasonably designed to ensure that information furnished with respect to a consumer account “[r]eflects the terms of and liability” of the account and “[r]eflects the consumer's performance and other conduct with respect to the account”.
Separately, subsection (c) of that appendix provides that a furnisher should “maintain[ ] records for a reasonable period of time, not less than any applicable recordkeeping requirement, in order to substantiate the accuracy of any information about consumers it furnishes that is subject to a direct dispute”.
Under the terms of many credit card agreements, as well as 12 C.F.R. § 1026.7, a credit card issuer has a duty to provide a cardholder with a periodic billing statement containing the payment due date.
Arguably, if a cardholder misses a payment as a result of statement non-receipt, then it is inaccurate to report to the credit reporting agencies that the payment was "late" as that does not reflect the “terms of” the account or the "consumer's performance and other conduct with respect to the account".
Is it lawful for a credit card issuer to have a retention policy such that it cannot prove or disprove an allegation of statement non-receipt by a consumer?
With respect to the specific scenario: (1) Consumer signed up for paperless billing statements. (2) Consumer alleges that bank failed to provide them, presumably due to a software glitch. (3) Consumer missed a payment as a result and the late payment was reported to the credit bureaus. (4) Consumer tried and failed to have bank correct the reporting without litigation. (5) Consumer sued bank two years later. (6) Bank admitted records necessary to prove or disprove consumer's allegation are only retained for one year. (7) Bank argued that the consumer has the burden to prove non-receipt and cannot do so.