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Using Nontraditional Credit Data

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The modern credit score carries with it so much meaning for most Americans that it has become part of our identities. Potential employers use it to gauge our trustworthiness and consistency. Creditors use it to determine whether to lend to us. Government agencies use it during security clearances and background checks.

There is a lot our credit scores do not say about us, however. For those of us who rent our primary residences, our history of rental payments is generally not reported to the credit bureaus (unless you live in one of the 8 million apartments that Experian collects data on from large apartment developers). Our credit scores also do not usually include our history of paying our utilities, our cell phones, and our insurance premiums.

For those people with young credit who have never purchased a home or financed a car, their credit scores may be low simply because the bureaus lack data about the bills they actually do pay. When trying to buy a house, people in this situation may be denied credit when in fact their creditworthiness is excellent.

In the context of applying for a mortgage application, federal law allows anyone to submit evidence of on-time payments to the lender who is likewise required to consider it. Almost no one, however, takes advantage of this ability. There is a Federal Reserve regulation (“The Equal Credit Opportunity Act” (Regulation B) 12 CFR 202) that interprets the rules regarding how banks determine creditworthiness but the various subsections are detailed and often ambiguous leaving lenders to create their own interpretations of how to apply the regulation. For instance, the Federal Housing Administration (FHA) will not allow applicants with low credit scores to boost them with nontraditional data. Presumably, this is allowed under Regulation B because the rules state that a bank must only consider nontraditional data when evaluating “similarly qualified applicants.” When an applicant has a low credit score and is not being considered at all, is there still a duty to accept nontraditional data?

Regardless of whether the lender will consider it, I urge anyone applying for a mortgage who has a long history of on-time payments of rent, utilities, cell phone, and insurance to request that their prospective lenders consider this information. Whether they will or not is something I cannot predict.

If you are interested in the full text of the relevant subsection of Regulation B, I have excerpted it below.

Equal Credit Opportunity Act (Regulation B) § 202.6: Rules concerning evaluation of applications

(a) General rule concerning use of information. Except as otherwise provided in the Act and this regulation, a creditor may consider any information obtained, so long as the information is not used to discriminate against an applicant on a prohibited basis.2

2The legislative history of the Act indicates that the Congress intended an “effects test” concept, as outlined in the employment field by the Supreme Court in the cases of Griggs v. Duke Power Co., 401 U.S. 424 (1971), and Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975), to be applicable to a creditor’s determination of creditworthiness.

(b) Specific rules concerning use of information —(1) Except as provided in the Act and this regulation, a creditor shall not take a prohibited basis into account in any system of evaluating the creditworthiness of applicants.

(2) Age, receipt of public assistance.

(i) Except as permitted in this paragraph, a creditor shall not take into account an applicant’s age (provided that the applicant has the capacity to enter into a binding contract) or whether an applicant’s income derives from any public assistance program.

(ii) In an empirically derived, demonstrably and statistically sound, credit scoring system, a creditor may use an applicant’s age as a predictive variable, provided that the age of an elderly applicant is not assigned a negative factor or value.

(iii) In a judgmental system of evaluating creditworthiness, a creditor may consider an applicant’s age or whether an applicant’s income derives from any public assistance program only for the purpose of determining a pertinent element of creditworthiness.

(iv) In any system of evaluating creditworthiness, a creditor may consider the age of an elderly applicant when such age is used to favor the elderly applicant in extending credit.

(3) Childbearing, childrearing. In evaluating creditworthiness, a creditor shall not make assumptions or use aggregate statistics relating to the likelihood that any category of persons will bear or rear children or will, for that reason, receive diminished or interrupted income in the future.

(4) Telephone listing. A creditor shall not take into account whether there is a telephone listing in the name of an applicant for consumer credit but may take into account whether there is a telephone in the applicant’s residence.

(5) Income. A creditor shall not discount or exclude from consideration the income of an applicant or the spouse of an applicant because of a prohibited basis or because the income is derived from part-time employment or is an annuity, pension, or other retirement benefit; a creditor may consider the amount and probable continuance of any income in evaluating an applicant’s creditworthiness. When an applicant relies on alimony, child support, or separate maintenance payments in applying for credit, the creditor shall consider such payments as income to the extent that they are likely to be consistently made.

(6) Credit history. To the extent that a creditor considers credit history in evaluating the creditworthiness of similarly qualified applicants for a similar type and amount of credit, in evaluating an applicant’s creditworthiness a creditor shall consider:

(i) The credit history, when available, of accounts designated as accounts that the applicant and the applicant’s spouse are permitted to use or for which both are contractually liable;

(ii) On the applicant’s request, any information the applicant may present that tends to indicate the credit history being considered by the creditor does not accurately reflect the applicant’s creditworthiness; and

(iii) On the applicant’s request, the credit history, when available, of any account reported in the name of the applicant’s spouse or former spouse that the applicant can demonstrate accurately reflects the applicant’s creditworthiness.

(7) Immigration status. A creditor may consider the applicant’s immigration status or status as a permanent resident of the United States, and any additional information that may be necessary to ascertain the creditor’s rights and remedies regarding repayment.

(8) Marital status. Except as otherwise permitted or required by law, a creditor shall evaluate married and unmarried applicants by the same standards; and in evaluating joint applicants, a creditor shall not treat applicants differently based on the existence, absence, or likelihood of a marital relationship between the parties.

(9) Race, color, religion, national origin, sex. Except as otherwise permitted or required by law, a creditor shall not consider race, color, religion, national origin, or sex (or an applicant’s or other person’s decision not to provide the information) in any aspect of a credit transaction.

(c) State property laws. A creditor’s consideration or application of state property laws directly or indirectly affecting creditworthiness does not constitute unlawful discrimination for the purposes of the Act or this regulation.

 


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Hamid Jabbar

Hamid Jabbar

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