Rick9972

Experian Reporting of BK

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This is a statement I just received from Experian on some accounts that I had disputed that were showing 30-90 day lates and charge offs, all occuring after I filed BK.

"Experian seeks to report a consumer's credit history accurately. Delinquencies that occur after the petition date but before the discharge date are part of a consumer's credit history as they occur at a time when the consumer has not yet been discharged from the debt. Experian does not report on delinquencies occurring after the debt has been discharged."

What do you think about this?

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Without spending hours on the linked site (which is VERY interesting), Experian is dead wrong. Unless there is case law out there that stands basic BK law on its head, there should be NO reporting after date of filing. The FILING of a bankruptcy is what prevents creditors from further reporting. Reporting negative credit history after the filing of a petition is an act to collect a prepetition debt. And postpetition collection activity is expressly forbidden by 11 USC 362(a)(6). This automatic stay is then replaced by a permanent injunction from collection activities (ie reporting negatively) under 11 USC 524(a)(2).

So Experian is dead wrong. The creditor and Experian are in clear violation of federal law.

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Without spending hours on the linked site (which is VERY interesting), Experian is dead wrong. Unless there is case law out there that stands basic BK law on its head, there should be NO reporting after date of filing. The FILING of a bankruptcy is what prevents creditors from further reporting. Reporting negative credit history after the filing of a petition is an act to collect a prepetition debt. And postpetition collection activity is expressly forbidden by 11 USC 362(a)(6). This automatic stay is then replaced by a permanent injunction from collection activities (ie reporting negatively) under 11 USC 524(a)(2).

So Experian is dead wrong. The creditor and Experian are in clear violation of federal law.

Hey JQ, could you read my thread and PM me? What I've quoted above is applicable to my situation, I believe...And just wanted to confirm based upon your knowledge. :)

http://www.debt-consolidation-credit-repair-service.com/forums/showthread.php?p=1070588#post1070588

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This link in the stickies is good: http://www.myfaircredit.com/forum/viewforum.php?f=6

It has all kinds of case law about BK reporting

I love this site and have used it for years. The trouble I am having is that most of the case law, dealing with this, I have found involves post discharge. I have found nothing that addresses the time between filing and discharge.

Here is a comment from that site that I found very interesting and potentially disturbing:

"As to a ch 7, the filing of a BK petition is a default on the contract (most contracts say BK is a default), and the total amount owing is a liquidated debt as of the date of the ch 7 filing, but it is not a late payment being reported pursuant to the contract terms, because there is no contract, so anything reported except the total amount of the debt due as of the BK date is not really accurate reporting. The accurate report is account included in BK or ch 7 during the BK, and then to be changed to discharged in BK upon discharge.

Reporting during a ch 7 has not been extensively litigated, probably because there is such a short window while a ch 7 is active, like maybe 120 days, so not much damage during that period of time. BK judges may not have any problem with reporting during the ch 7, they will simply leave it up to others to fix the problem."

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That post is non-commital. I think the statute says what it says. One argument is that the postpetition language of forbidden activities under 362 is almost identical to the language of forbidden activities under 524. Why would Congress write two sections so similar that apply to prevent certain acticities for the same purpose, but then assign a different meaning to them merely because they occur a few months apart? The answer is they both forbid collection activity such as reporting. The fact that the window under 362 is only a few months and the 524 window is decades long creates a situation where 99% of litigation will occur under 524. But they're analogous.

Furthermore, I am sure it has been litigated somewhere...check this out. A few years old but a starting point for both you and Lovebug. Read the interpretation of courts on just this issue. Maybe there is a case on point in your federal circuit and even better, your district. Note that some of these cases lump post-petition and post-discharge together as a violation and don't differentiate:

http://www.myfaircredit.com/forum/viewtopic.php?p=13859&sid=fce0c5faea508579e04f33ee62f34014

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