How should we report consumer real estate loan payments that have not been paid after the customer has filed for bankruptcy? We have been reporting the loan as “past due” to the credit bureau, is this correct?

We believe that you should continue to report the loan as delinquent. The Fair Credit Reporting Act imposes a duty on entities that provide information to a consumer reporting agency (a furnisher) to provide accurate and complete information. 15 U.S.C. 1681s-2(a)(1)(A).  Unless you have received notice that the debt has been discharged, it remains accurate to report the loan as delinquent.

You should note, however, that once a person files for bankruptcy, an automatic stay is issued. After the stay is issued, creditors may not engage in any activity that might be construed to be an attempt to collect on the debt. 11 USC 362(a)(6). See, also, Matthews v. Rosene, 739 F.2d 249, 251 (7th Cir. 1984).

We have found several court cases holding that simply reporting the fact of a delinquency to a credit reporting agency – and nothing more – does not by itself violate the automatic stay in a bankruptcy proceeding. See In re Kowall, (Bankr. E.D. Mich., 2011) (reporting negative information to a credit bureau does not have a significant impact on the debtor’s determination to repay the outstanding claim to the creditor); In re Singley, 233 B.R. 170 (Bankr. Ct. SD Georgia 1999) (reporting a  joint account as involved in a bankruptcy case to a credit bureau could violate the automatic stay if such an intent to coerce the debtor into paying was found); In re Irby, 337 B.R. 293 (Bankr. N.D. Ohio 2005) (reporting of a debt will not likely run afoul of the discharge injunction unless it is also coupled with other actions undertaken by the creditor to collect or recover the debt).where the creditor reported a loan as delinquent when it was subject to ongoing bankruptcy proceedings, and the court has held that it was accurate for purposes of the FCRA).  

Generally speaking, if and when you do receive notice that the debt has been discharged in bankruptcy, then you should report that accordingly, as well, so that the consumer reporting agency can “accurately note the status of the debt (e.g., discharged, voluntarily repaid).” Official Commentary, Appendix to 16 CFR 600 Section 607(3)(F)(2).  However, your question relates to a “consumer real estate loan.”  You also should be aware that the treatment of residential mortgages in Chapter 7 and 13 bankruptcy proceedings can become complicated, and it is always advisable to seek the advice of your counsel when working with a mortgagor who has entered into a bankruptcy proceeding.  With this in mind, please be advised that our response to your question should be viewed as general guidance and not as legal advice.