It wasn't previously "quoted" by me. It was thoroughly exhausted in excrusiating detail. Merely "quoting" statutes is your job Sassy.
nawwwwwwww Edwin, you will only read yourself AND everything BUT the FCRA, ya know, that plain language statute. Check this thread and count the number of participants -- Croft doing excruciatingly detailed (and unbiased) research in the National Archives isn't even enough for you. NOT biting, this thread and the conclusions stand on its own. Sassy
Re: The New 7.5 Yr. Reporting Perio Ahem... I just got up about 10 minutes ago, ain't quite awake yet, dogs are barking to come back in to see what's for breakfast, NEED CAFFEINE FIRST ! Then I'll read the article Butch posted....
Re: The New 7.5 Yr. Reporting Perio Ahem... I just got up about 10 minutes ago, ain't quite awake yet, dogs are barking to come back in to see what's for breakfast, NEED CAFFEINE FIRST ! Then I'll read the article Butch posted....
Re: The New 7.5 Yr. Reporting Perio The reporting period is 7 years for adverse information. EQ, TU, and EX all agree. The FTC agrees. CDIA agrees. I agree. http://www.transunion.com/content/p...olutions/general/data/ManagingCreditFAQ.xml#3 How long do accounts remain on my credit report? In most cases, accounts that contain adverse information may remain on your credit report for up to seven years from the date of first delinquency on the account. https://www.econsumer.equifax.com/consumer/sitepage.ehtml?forward=elearning_credit11 What is Not Included? A credit report does not include information about your checking or savings accounts, bankruptcies that are more than 10 years old, charged-off or debts placed for collection that are more than seven years old, gender, ethnicity, religion, political affiliation, medical history, or criminal records. http://www.experian.com/ask_max/deleting_information.html Deleting information Figuring out when negative information is removed from your credit report can be very confusing, and understandably so. I hope this helps. Delinquencies (30 â?? 180 days): Can remain seven years from the date of the initial missed payment. Collection accounts: Remain seven years from the date of the initial missed payment that led to the collection (the original delinquency date). When a collection account is paid in full, it will be marked "paid collection" on the credit report. Charged-off accounts: Remain seven years from the date of the initial missed payment that led to the charge off (the original delinquency date), even if payments are later made on the charged-off account. http://www.ftc.gov/bcp/conline/pubs/credit/fcrasummary.pdf Consumer reporting agencies may not report outdated negative information. In most cases, a consumer reporting agency may not report negative information that is more than seven years old, or bankruptcies that are more than 10 years old. FTC Commentary 1. General Section 605(a) provides that most adverse information more than seven years old may not be reported, except in certain circumstances set out in section 605(b). With respect to delinquent accounts, accounts placed for collection, and accounts charged to profit and loss, there are many dates that could be deemed to commence seven year reporting periods. The discussion in subsections (a)(2), (a)(4), and (a)(6) is intended to set forth a clear, workable rule that effectuates Congressional intent. In what cases can these items be reported longer than 7 years? FCRA 605 (b) Exempted cases. --------------------------------------------------------- Now to the FTC opinions to Harvey, Johnson and Amason. They all basically state the same thing. One important piece will soon become clear. http://www.ftc.gov/os/statutes/fcra/harvey.htm The legislative history indicates that Congress included the requirement of Section 623(a)(5) so that there would be a uniform date certain by which all consumer reporting agencies would compute the seven-year reporting period for adverse items of information. It was the intent that the seven year reporting period begin with the commencement of the delinquency rather than any other date. http://www.ftc.gov/os/statutes/fcra/johnson.htm Section 623(a)(5) requires a creditor that reports a chargeoff to a CRA to notify the agency (within 90 days of reporting the account) of "the month and year of the commencement of the delinquency that immediately preceded" the chargeoff. This is clear. If the creditor chooses to report a charge off, they also have to provide the date of delinquency. Section 605(a)(4) provides that the credit bureau may report the chargeoff for seven years. This makes sense. They can only report adverse information for 7 years. In this example, the creditor is reporting a charge off, and is allowed to report the charge off for 7 years. Section 605(c)(1) provides that seven year period begins 180 days from that date. What date? The date of delinquency. The creditor must report the date of delinquency to the CRA, which is then used to calculate the reporting period, as explained in the remainder of the letter below.. Again, in this example the creditor is reporting a charge off. When does a charge off take place? 180 days from the date of delinquency. The 180 days have already passed in this example. So they now can report the charge off for 7 years. They cannot report a charge off before it occurs, because there is no charge off. If they report it after it occurs, the 7 year period has already started to run. Section 605 (c) (1) deals with charge offs, collections, and similar actions. What is a similar action? A repo is one example according to FTC. This section does not apply to 30 or 60 day lates. When do charge offs and collections happen? We know charge offs happen at 180 days after default, and generally collections would start about that time with a CA. The 180 days applies only in these cases, and is only important for forcing the creditor to refrain from stalling and punishing the consumer. In the case of a "lesser" delinquency, 30 or 60 day late, there is no requirement to wait 180 days to begin the 7 year period. This would result in the delinquency being reported longer than the allowed time. In the scenario your reported, it is our view that the delinquency that led to the charge-off "commenced" in January 1997, the month the first payment was missed. Thus, that is the month and year that the creditor must report to the CRA, and that the CRA must use to calculate the time period dictated by Section 605. The next 2 letters basically restate the same info above. http://www.ftc.gov/os/statutes/fcra/kosmerl.htm Section 623(a)(5) requires a party that "furnishes information to a (CRA) regarding a delinquent account being placed for collection, charged to profit or loss, or subject to any similar action" to notify the agency (within 90 days of reporting the account) of "the month and year of the commencement of the delinquency that immediately preceded" the creditor's action. Section 605(a)(4) provides that the CRA may report the information for seven years, in most cases.(1) Section 605(c)(1) provides that the seven year period begins 180 days from the "commencement of the delinquency" date. Section 605(c)(2) provides that the section applies "only to items of information added to the file of a consumer on or after the date that is 455 days after the date of enactment of the Consumer Credit Reporting Reform Act ." http://www.ftc.gov/os/statutes/fcra/amason.htm 1. What reporting limits does the FCRA provide with respect to chargeoffs, and how long have they been in effect? Section 605(a)(4), which has been in effect since the FCRA became effective in April 1971, has always prohibited CRAs from reporting chargeoffs that are more than seven years old. Section 623(a)(5), which became law in September 1997, requires a creditor that reports a chargeoff to a CRA to notify the agency (within 90 days of reporting the account) of "the month and year of the commencement of the delinquency that immediately preceded" the chargeoff. Section 605(c)(1) provides that the seven year period begins 180 days from that date. Both provisions were part of the major revision to the FCRA that were enacted in 1996. To summarize: The reporting period is 7 years. Section 605 (c) (1) allows some specific items to be reported for 7 years. Since those items generally do not happen until 180 days after the initial delinquency, the 180 days are not added to the 7 years. The 180 days already occurred. All other adverse items are reported for 7 years (except as specifically allowed in 605 (b)).
Re: Re: The New 7.5 Yr. Reporting Perio In other words, the 180 days is already included in the 7 years. Yes, one could construe it this way. I might have said "OVERLAP" rather than "already occurred". The actual charge off date is not relevant to this discussion really. The 7 year obsolescence period is measured from the "MOST RECENT DATE THAT A DELINQUENCY OCCURRED IMMEDIATELY PRECEDING A NEGATIVE ACTION". You're thinking of the traditional charge off date being 180 days AFTER the delinquency. Since the del. date is what is used, the actual CO date (180 days later ) doesn't matter. But yeah, it would be within the 7 years. A CO always happens AFTER the original delinquency, usually 180 days. Great job PR. You got it. It's actually time to revisit this issue anyway. A provision in the statute, which has always added confusion rather than remove it, is now obsolete. more later.
Re: Re: The New 7.5 Yr. Reporting Perio Here is another question. (c) Running of Reporting Period (1) In general. The 7-year period referred to in paragraphs (4) and (6) of subsection (a) shall begin, with respect to any delinquent account that is placed for collection (internally or by referral to a third party, whichever is earlier), charged to profit and loss, or subjected to any similar action, upon the expiration of the 180-day period beginning on the date of the commencement of the delinquency which immediately preceded the collection activity, charge to profit and loss, or similar action. If this is a plain language statute and the 180 days is static, why did they include the phrase "whichever is earlier" when referring to the 2 types of collections by creditors? We need to know when collection activity started, because collection activity triggers the 7 year reporting period. If the 180 day period is static, and is calculated from the first delinquency that led to the activity, there is no need to know any other date. Maybe it is because the FTC all along has said that the reporting period for delinquencies is 7 years. The FTC has stated this position over and over in their commentary and opinion letters. To paraphrase the Senate Banking Committee Report that accompanied the bill, "the 7 year period may begin no more than 180 days". Congress and the FTC realized that creditors were attempting to punish consumers by stalling when reporting charge offs and other activity. The 180 day timeframe is for the benefit of the CRA's only. It is designed to stop the reporting of obsolete accounts, by allowing no more than 180 days from the delinquency that led to the action. The creditor must charge off the account and report the date of the delinquency that led to the action. What happens if there is no date of delinquency? A creditor sells an account to a JDB and no information is passed along about the default date. The CRA is at risk of reporting obsolete information because they do not have the date of delinquency. They can't possibly calculate a precise 7 year period without that date. The FTC has also stated many times that collection activity, internal or by third party, "whichever is earlier" triggers the 7 year period. A charge off triggers the 7 year period. Similar action, such as a repo, triggers the 7 year period. The 180 days was only put in to stop abusive creditors or collectors from extending the 7 year period. Here is what the FCRA is attempting to avoid: http://www.ftc.gov/bcp/conline/pubs/buspubs/infopro.htm A consumer's credit account becomes delinquent on April 15, 1998. The consumer makes partial payments for the next five months but never brings the account current. The merchant places the account for collection in May of 1999. Since the account was never brought current during the period that partial payments were made, the delinquency that immediately preceded the collection commenced in April 1998 when the consumer first became delinquent. Are we to believe, in this example, that 180 days would be added to the April 1998 date and then reported for 7 years? Back to the Johnson letter: http://www.ftc.gov/os/statutes/fcra/johnson.htm Current law generally prohibits consumer reporting agencies from including in a consumer report accounts placed for collection or charged to profit and loss which antedate the report by more than seven years. The Committee is concerned that this seven year limitation is ineffective. In some cases, the ... action occurs months or even years after the commencement of the preceding delinquency. (As in the example above) ... Consequently, the consumer report may contain such information even if the delinquency commences more than seven years before the date on which the report is provided to a user. The Committee bill specifies that the seven-year period with respect to information concerning a delinquent account charged to profit and loss . . . may begin no more than 180 days after the commencement of the delinquency immediately preceding the ... action. S. Rept. 104-185, 104th Cong., 1st Sess. 39-40 (emphasis added). The footnote explains further: 2. The additional 180 day period accords a measure of flexibility to credit bureaus whose furnishers may provide them with the wrong date. However, the expansion of the time period that Section 605 allows chargeoffs and similar actions to be reported accents the desirability of treating the "commencement" of the delinquency as the first missed payment -- not some later date that would further extend the period. The 180 days is only to protect the CRA's when furnished the wrong date or no date at all, and to protect the consumer from the creditors' abuse or mistake. It is flexible according to the facts of the specific case in question.
Re: Re: The New 7.5 Yr. Reporting Perio I learned a new phrase when I first got my computer, "Software Conflict". No sooner did I load 2 different programs, the damn thing began "freezing up", requiring a "reboot". The issue; if one software program doesn't "mix" well with another there is an "internal conflict" causing the computer to hang up. The 2 parts are so busy fighting between themselves the computer can't do anyhting else. Similarly, if an internal conflict occurs within law, especially within the same statute, we MUST find a way to plausibly interpret what we see so that each separate component of the statute is in harmony with ALL the others. § 605 (A) 3, 4 & 5, limits the reporting period to 7 years. Thus, we CANNOT interpret § 605 (C) to be 7 years PLUS 180 days, 7.5 years. Something has to change, regardless of how hard it may be. I've posted my UPDATE for this discussion off site; From Butch's Desk 1/10/2005 Feel free to post legitimate disagreements or questions. PS. and thanks again PR. .
Re: Re: The New 7.5 Yr. Reporting Perio A couple more observations: (c) Running of Reporting Period (1) In general. The 7-year period referred to Not "in every case", not "always", not "without exception". Just "in general" leaving some "flexibility". (c) Running of Reporting Period (1) In general. The 7-year period referred to Not 7.5 years, not 7 years plus 180 days. Just 7 years.
Re: Re: The New 7.5 Yr. Reporting Perio No matter how many times you change the words or meaning of words, the law still reads the same way. The law, not the law according to Butch. To the members, read this thread thoroughly. The answer was previously proven by Croft in his research and the law is a plain language law. The words don't change meanings because someone can't admit to making a mistake.
Re: Re: The New 7.5 Yr. Reporting Perio For once I completely agree. One should very carefully study this thread, and the links too. Begin at the very first paragraph in the entire thread. Dear reader, Here's what I would suggest; Try a simple experiment. Go to google.com and click on advance search. In the "with the exact phrase" window type; shall means may. I just tried it and got 100 hits. The law according to Butch. So let's see if we have this right. Accordingly to my esteemed detractors, Butch invented the Internet. It's the ONLY way he could make up such a preposterous notion as to single handedly "change" the meaning of words. Then, he snuck into ALL of these website's and wrote these wrote fictitious articles. And then he "hacked" his way into each of these domains and implanted his ridiculous "word changing" notions onto each website. He also mass hypnotized all the web masters, to not only FAIL to notice that Butch was posting on their sites, but to also file follow-up articles asserting the same position. And then Butch tapped into all the court rooms around the world and posted fake case law which contains the interpretation problem, and hypnotized all judges to make decisions based upon it. Oh, - then he psycho-teleported the problem into the minds of Senate and Congress, and statutory drafters from all over the world, as well. Oh - then he .... then he .... OH NEVER MIND! The CBS (60 minutes II) Memogate report came out today. Dan Rather still insists those silly memo's where real. lol A Few Additional Words of Art they struggle with in CANADA: by: Christine Mowat, President of Wordsmith Associates in Edmonton, Alberta. She is a plain language writer, trainer, and consultant. With all due respect to legalese -> Could we wage a war against three recalcitrant examples of legalese: 'with respect to', 'thereby', and 'shall'? I think of them as pop-up cartoon characters who sprout legs and hike back into final drafts, even after committees have cut them out. 'With respect to' acts as a kind of lawyer's crazy glue. "I want to talk with respect to the terms of your separation." (I want to talk about the terms of your separation.) "We're arguing with respect to two different interpretations." (We're arguing over two different interpretations.) 'About' is a straightforward Anglo Saxon word that is easier to read (or listen to) than 'with respect to'. Yet legal writers regularly reach for the clichid 'with respect to'. Granted 'with respect to' will quickly, though awkwardly, glue words together to show a connection between ideas. However, the phrase blurs more specific relationships. More exacting writers and speakers choose better connectors. The suggestions below demonstrate that small precise connectors or adjusted syntax make reading easier: "We were provided with copies of the hospital records with respect to Ann and George Redmonds". (Substitute for.) "With respect to her course of treatment, she wore the cervical collar for 10 days after hospital discharge". (Substitute As part of her treatment...) "Enclosed are copies of the invoices and substantiating documents with respect to Fred Striker's special damages". (Substitute detailing or about.) "There is little information with respect to the plaintiff's injuries". (Substitute on.) "Mr. Tinderbox's main physical problem is with respect to his shoulder". (Delete with respect to.) Common sense tells us to eliminate the clumsy superglue, 'with respect to', and search in a broader canvas of words and expressions for appropriate substitutes. Thereby: Another common example of legalese is 'thereby'. Even the writers of the Oxford English Dictionary couldn't resist using it: In cases where the editor has some evidence that a word is used as a proprietary name or trademark, this is indicated by the letter P, but no judgement concerning the legal status of such words is made or implied thereby. This last line in the dictionary's introduction is the first time that legalese is used. When non-legal writers turn to legal topics, they often unconsciously mimic the sound of old legal language. Perhaps authors feel that the writing will have more force and resonance if the ancient formal language is inserted. In fact, the bulk of text is usually written in plain modern English and writers are usually unaware of the inconsistency. Legal writers, however, have had their brains so steeped in legalese that it's unsurprising they continue to spew it out. The Oxford Dictionary editors could easily have dropped the redundant thereby. (The logical connection which the writers wanted to refer to is already present in the phrase, of such words.) The use of thereby for as a result of that can be a practical choice. For example - and thereby hangs a tale. However, like hereby, thereby is overused in legal writing. But would we want to get rid of the sonorousness of I hereby pronounce you husband and wife? Context for the language, as well as users of the document, are the significant factors to consider when determining suitable vocabulary. Shall: Newcomers to the plain language movement and its literature may accept the basic philosophy, yet continue to use shall in agreements or legislation. In the movement itself, the fate of shall has provoked lively debate. In her 1992 article entitled "Shall Must Go", Michele Asprey, an Australian plain language writer and LAWYER says lawyers have used shall as a crutch for too long. She presents two arguments against shall: 1. Shall is hardly ever used outside the legal community, and non-lawyers don't understand the traditional mandatory nature of the legal shall. 2. Lawyers regularly misuse shall. Cases which conclude that shall means may are bewildering to non-lawyers. This happens because the drafter got it wrong, and the court had to do its best to correct the mistake. Hey - wait a cotton pickin minute! What was that? What could she possibly mean that "courts must do their best to CORRECT THE MISTAKE?" According to some, there is NO mistake! Could she mean - possibly - that if 'shall' results in an internal conflict between statutory provisions, or conflicts with the Constitution, the court MUST find a way to interpret the word in such a way which will solve the problem? Is it possible that renowned Canadian, and Australian lecturers, Professors, Lawyers and instructors to their respective legal profession on "Plain Language" and statutory draftsmanship, could be so blatantly stupid as to DISagree with my esteemed colleagues? Or are they just "making it all up" too? GASP ... May It Never Be!!! (Also explains the bewilderment from my "non-lawyer" detractors.) But I digress. The article continues; Asprey's plain language substitutes for shall below achieve greater precision and consistency: 1. Use must for the imperative shall. 2. Use will for the simple future. 3. Use the present tense for just about everything else. Alberta's 1994 Freedom of Information and Protection of Privacy Act is an example of recent legislation which has completely eliminated shall. For example: The head of a public body must refuse to disclose personal information to an applicant if the disclosure would be an unreasonable invasion of a third party's personal privacy. A public body may disclose personal information for a research purpose, including statistical research, only if . . . This Act applies to any record in the custody or under the control of a public body regardless of whether it comes into existence before or after this Act comes into force. This discussion on 'with respect to', 'thereby', and 'SHALL' represents the kind of scrutiny of legalese in which plain language proponents engage. We should respect the history of legalese, understand why writers are reluctant to divest themselves of its usage, and then resolutely extricate it from legal writing. BTW; I deeply appreciate Croft's hard work. He's the only one who did any. But Croft knows that I RESPECTFULLY disagree with his analysis. *** Sorry, but if my interpretation fails to suit you, you still have yet to PROVE an interpretation which reconciles these 2 [seemingly] diametrically opposed statutory provisions; 1) Additional 180 days = 7.5 years (Section 605(C) (1)) 2) The 7 year limit. (Section 605 (A) 3,4,5) These provisions simply cannot be in conflict with each other. - PERIOD! PS. In the meantime, here's a site you'll find very interesting LKH. .
Re: Re: The New 7.5 Yr. Reporting Perio Butch, All you've done, with Pale Rider's help this time, is regurgitate the previous 5 pages of this thread and the same sources, research and citations. The conclusions of which STILL stand on their own. Shall can never mean may. If Congress had meant may, they would have surely used the word may, but they didn't mean may, they meant shall, so that's the word they used. The ONLY thing that conflicts with the FCRA is your continued insistence that shall does indeed mean may. You both skip, still, that the Furnisher under section 623 is to provide the commencement of delinquency date -- that is their responsibility. The CRA's, under section 605 UPON THE EXPIRATION OF 180-DAYS, determine the reporting period. It is two seperate things, two seperate responsibilities. Your citations to the 7 years are for the Furnisher, NOT the CRA, there is no conflict. Some things, like a foreclosure notation or late pay, report for a straight 7 years -- that STILL doesn't turn shall into may. I suppose though "upon the expiration of" is as unclear to you as the shall and may discussion. You can twist all the sources and read them piecemeal to make them say whatever you like, BUT, when you begin by skipping the FCRA and saying it is conflicting as an argument, everything else fails after that. You've heard of Websters, yes: http://dictionary.reference.com/search?q=shall Nothing new here <<yawnnnnnnnnn>> Sassy § 605. Requirements relating to information contained in consumer reports [15 U.S.C. § 1681c] (c) Running of reporting period. (1) In general. The 7-year period referred to in paragraphs (4) and (6)(2) of subsection (a) shall begin, with respect to any delinquent account that is placed for collection (internally or by referral to a third party, whichever is earlier), charged to profit and loss, or subjected to any similar action, upon the expiration of the 180-day period beginning on the date of the commencement of the delinquency which immediately preceded the collection activity, charge to profit and loss, or similar action. (2) Effective date. Paragraph (1) shall apply only to items of information added to the file of a consumer on or after the date that is 455 days after the date of enactment of the Consumer Credit Reporting Reform Act of 1996. § 623. Responsibilities of furnishers of information to consumer reporting agencies [15 U.S.C. § 1681s-2] (a) Duty of furnishers of information to provide accurate information. (5) Duty to provide notice of delinquency of accounts. A person who furnishes information to a consumer reporting agency regarding a delinquent account being placed for collection, charged to profit or loss, or subjected to any similar action shall , not later than 90 days after furnishing the information, notify the agency of the month and year of the commencement of the delinquency that immediately preceded the action.
I've revisited this thread for 2 reasons actually; 1) New evidence has presented itself since I was last on this issue 2) The 455 days we see in § 605 (C) (2) is now obsolete. Time calculation; (Public Law 104-208 (Sept.30, 1996)) (Consumer Credit Reporting Reform Act of 1996, (CCRRA)) The CCRRA became enacted Sept. 30 1996. The rest of 1996, (Sept. 30 - Dec. 31) involves 90 days. Also involved in this calculation is an additional 1 full year, 365 days. So 90 days PLUS 365 days = 455 days, as seen in the statute. As of now this provision is obsolete. If an item finds it's way to your CR on or AFTER Jan. 1 1998, the new calculation applies. If it found it's way to your CR BEFORE Jan. 1 1998, it should now be GONE. Counting forward 7 years from Jan. 1 1998, equals Jan. 1 2005. As of the first of the year the old method of calculation is no longer applicable and can finally be withdrawn from our vocabulary. READ MORE -> Thus, my update here is HIGHLY appropriate, not some silly exercise to regurgitate an old argument. I care about the people who read this board and how they may be led to believe that 7 years plus 180 days is ok. Example: THIS INTERPRETATION IS NOT OK! The entire discussion WE are having Sassy, is about the mysterious [extra] 180 days, in § 605 (C) (1), and it's internal conflict with the 7 year limit in § 605 (A) 3,4,5. The conflict is between 2555 days in one statute, and 2738 days in another. (For those voters in West Palm Beach, Broward or Dade Counties, that's a 180 day disparity). The date from which the 7 year reporting period is measured, as of Jan. 1, 2005, in ALL cases is; "The month and the year of the commencement of the delinquency that immediately precedes a negative action." The 90 days reporting requirement in § 623 [15 U.S.C. § 1681s-2], (which you claim we keep ignoring is not relevant to the length of the obsolescence period). That's why we keep ignoring it. Whether or not the DF reports this date within the mandatory 90 days in § 623, does not adjust this date, nor make applicable an extension of time beyond 7 years. Nor is the CA empowered to adjust this date. Period! Then what are all these stupid judges and college law professors talking about? Here's another site I recently hacked into and posted another of my absurd conclusions; The site? None other than the "idiots" at the Illinois Bar Association: Gertrude Block is Lecturer Emerita at the University of Florida College of Law. From her scholarly work entitled: "Effective Legal Writing" Skim through the numerous pages of court decisions dealing with the words "shall" and "may," and you will find a hodge-podge of interpretation. Often courts have construed "shall" as mandatory, obligatory, or directory-all meaning "must." But a number of the courts have held "shall" to be "permissive" (that is, not mandatory), which makes "shall" a synonym of "may." Look more closely at these decisions, and you will find that courts often seem to come to their decisions not according to the meaning of "shall," but according to what the court believes will bring a just decision in the case at hand. Read this last paragraph again. IN THE SUPREME COURT OF TENNESSEE Cronnin v. Howe: No. 03-S-01-9406-CV-00053 A construction which places one statute in conflict with another must be avoided; therefore, we must resolve any possible conflict between statutes in favor of each other, so as to provide a harmonious operation of the laws. So each case is taken separately. My contention has never been that "shall" always means "may". I contend that it "COULD". It would be up to a court to so construe. I've simply pointed out one way by which they might do so. (And I feel confident that if this issue ever went to litigation it [the court] would so interpret, as has been done so many times before). But do know this; 7-years, and 7 AND A HALF years, CANNOT reside in the same statute. For more research on "Internal Statutory Conflict" follow these instructions; Go to www.google.com advanced search. In the "with the exact phrase" window type in: conflict between statutes 290 Hits. The problem again, dear reader, which still appears to elude my esteemed colleagues, is the INTERPRETATION of these provisions, not their words. Merely parroting the same statutes over and over and over and over, add nauseum, (as though it has escaped our attention) is a convenient way to avoid REAL work. However, otherwise, they'd have to adjust their paradigm, and admit that I have a point. And that ain't gonna happen. Now in the unfortunate position of inescapable grid-lock between the troublesome rock, (being incorrect) and a hard place, (having to admit I'm right) leaves my detractors with no other choice but to introduce an [almost] UTTERLY IRRELEVANT statute, (§ 623) to derail the real issue. Sorry guys, can't let ya get away with that little trick. ALL OF THE COMPONENTS IN THIS DISCUSSION ARE IN § 605! Among the aforementioned new items of evidence of which I speak, there is no higher industry authority than the CONSUMER DATA INDUSTRY ASSOCIATION. (CDIA). What they state in their "TOP SECRET" "Metro2 Training Manual" will rest this issue permanently. READ MORE -> I'm not sure how many times one needs to post actual evidence. But at this point I assume everyone else gets it. I will simply leave it to the court of public opinion to discern reality. How much overwhelming (VOLUMES) of research do I need to post, only to hear another repeated cut/paste of the very same problematic statutes, or testimony, or statutes that don't even apply. In the face of such overwhelming proof on my part, I'm closing my participation here unless something substantive appears. Frankly, at this stage, I'd feel a bit guilty if I continued. Like � like I'm clubbing the carcasses of baby seals, or something. Good luck with your studies. Naturally I'll be available for questions. You all know where I'll be. *********************** Re-Stated: Here's the bottom line folks: You MUST (just as the courts MUST, as enumerated by Gertrude Block above) draw an interpretation which reconciles these 2 [seemingly] diametrically opposed statutory provisions; 1) Additional 180 days = 7.5 years (§ 605 (C) (1)) 2) The 7 year limit. (§ 605 (A) 3,4,5) These provisions simply cannot be in conflict with each other. - PERIOD! LEAVE § 623 OUT OF IT. ***********************
Couldn't have said it better myself (well, I'd never club a baby seal, maybe stomping a roach or something instead). And, section 623 is absolutely relevant, if not for the requirement in section 623, there would be no commencement of delinquency date to go by as it would not be provided. It is the ONLY date specficially required by the FCRA, that makes it VERY relevant. Sassy
Well ... I did say until something substantive comes along. Little did I know at the time that the Supreme Court of the U. S. was busy helping me substantiate my case here. Statutes can be interpreted a number of ways. The 2 which are applicable to this discussion are "MANDATORY" and "DISCRETIONARY". The battle between these 2 interpretive models, as I've conclusively proven in this thread, is a battle of old. Criminal On January 12, 2005 the Supreme Court of the U.S. made a landmark decision. They CHANGED the interpretive norm in what are known as Federal Sentencing Guidelines in criminal cases. Federal sentencing guidelines have long driven lawyers and judges alike, up the wall. The (presumed) mandatory nature of the guidelines removes, for all practical purposes, a judges discretion when imposing sentences. We've all heard the horror stories of, for example, a single mom caught with a bag of dope (for personal use). But because the amount was barely above the stipulated minimum this single mom SHALL be sentenced to not less than 10 years in prison. Rightfully, judges felt this to severe. Our prison system is jam packed with drug possessions, for personal use, "criminals" who probably ought not be there. In other cases the penalty range may not be severe enough. United States v. Booker, the very case which caused the USSC to reverse their [presumptively mandatory] interpretation, is a classic example. UNITED STATES v. BOOKER certiorari to the united states court of appeals for the seventh circuit No. 04-104.Argued October 4, 2004--Decided January 12, 2005* Under the Federal Sentencing Guidelines, the sentence authorized by the jury verdict in respondent Booker's drug case was 210-to-262 months in prison. At the sentencing hearing, the judge found additional facts by a preponderance of the evidence. Because these findings mandated a sentence between 360 months and life, the judge gave Booker a 30-year sentence instead of the 21-year, 10-month, sentence he could have imposed based on the facts proved to the jury beyond a reasonable doubt. Bypassing what is known as the Apprendi conflict, (which isn't relevant here) the judge used his discretion and imposed a stiffer penalty on Booker than what the statute appears to allow. The pertinent section of the criminal code in Booker states: -CITE- 18 USC Sec. 3553 01/06/03 -EXPCITE- TITLE 18 - CRIMES AND CRIMINAL PROCEDURE PART II - CRIMINAL PROCEDURE CHAPTER 227 - SENTENCES SUBCHAPTER A - GENERAL PROVISIONS -HEAD- Sec. 3553. Imposition of a sentence -STATUTE- (b) Application of Guidelines in Imposing a Sentence. - The court shall impose a sentence of the kind, and within the range, referred to in subsection (a)(4) [210-to-262 months in prison] Note the word "SHALL" The defense team appealed, arguing (as my dissenters argue) that the "shall" was mandatory, and must be interepretd as MUST, thus removing the judges discretion to apply the longer sentence. Were the defense team successful, (that "shall" means "must") Bookers sentence would have been reduced from the 360 months, to the stipulated [210-to-262 months] range. The USSC sided with the lower court's (AND BUTCH'S) interpretive model. Sentencing Standards No Longer Mandatory Federal Judges May Deviate, Court Rules By Charles Lane Washington Post Staff Writer Thursday, January 13, 2005; Page A01 The Supreme Court ruled yesterday that federal judges are no longer bound by mandatory sentencing guidelines but need only consult them when they punish federal criminals. Under the ruling, federal judges will be free to decide for themselves whether defendants deserve sentences longer or shorter than the ranges prescribed by the guidelines, ... Now courts across the country are within their purview to use their discretion when applying the discretionary interpretation of "SHALL". Suddenly, "shall" means "may", not "must". Even though these statutes are smothered in the word "SHALL", this statute was [and has always been] merely "presumed" to be mandatory. This Supreme Court changed the statutory interpretation from a "Mandatory" statute, to a "Discretionary" statute. And guess what ... it was NOT necessary to change the statute from "SHALL" to "MAY". The "SHALL" which only appears to restrict a judges interpretation in the criminal statute above, is the same one as we see in 605 (C) (1). Try this exercise; Google.com, advanced search; in the exact phrase window type; discretionary statute Then try it again with mandatory statute Happy reading. lol
