Otero v. Green Tree

UNITED STATES BANKRUPTCY COURT
DISTRICT OF NEW MEXICO
In re:
V. LYNN OTERO,
Debtor. 	Case No. 7-98-14677-R
V. LYNN OTERO,
Plaintiff,
v. 	Adv. No. 12-1309-T
GREEN TREE SERVICING, LLC,
Defendant.
MEMORANDUM OPINION ON DEFENDANT’S MOTION FOR SUMMARY
JUDGMENT
This matter is before the Court on the defendant’s motion for summary judgment,
doc. 15 (the “Motion”) and supporting memorandum, doc. 16 (the “Memorandum”). For
the reasons set forth below, the Court will grant the Motion with respect to Plaintiff’s
claims for alleged violation of the automatic stay and alleged violation of the Fair Debt
Collection Practices Act, and deny the motion with respect to the alleged violations of the
discharge injunction.
I. 	FACTS
The Court finds that the following facts are not in material dispute:
1. 	Plaintiff resides in New Mexico and is the debtor in the above-captioned,
discharged Chapter 7 bankruptcy case.
2. 	Defendant 	is 	a 	foreign 	corporation 	transacting 	business 	in 	New
Mexico.
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3. 	Plaintiff filed the above-captioned bankruptcy case on July 29, 1998.
4. 	An order discharging Plaintiff was entered November 4, 1998.
5. 	Plaintiff’s bankruptcy case was closed November 4, 1998.
6. 	Post-discharge, Defendant first contacted Plaintiff in writing in 2005.
7. 	Post-discharge, Defendant 	first contacted Plaintiff 	telephonically in
2002.
8. 	Defendant sent Plaintiff 19 letters between 2005 and 2012.
9. 	Plaintiff claims she received the following number of telephone calls
from Defendant in the following years:
Year 	Number of Telephone calls
2002 	8
2003 	Unknown
2004 	Unknown
2005 	0
2006 	Unknown
2007 	Unknown
2008 	unknown
2009 	0
2010 	7
2011 	4
2012 	49
II. 	SUMMARY JUDGMENT STANDARDS
Summary judgment is appropriate if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law. 	Fed.R.Civ.P. 56.1 “[A] party seeking summary judgment
1 Fed.R.Civ.P. 56 applies in adversary proceedings. See Bankruptcy Rule 7056.
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always bears the initial responsibility of informing the district court of the basis for its
motion, and … [must] demonstrate the absence of a genuine issue of material fact.”
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). 	In determining whether summary
judgment should be granted, the Court will view the record in the light most favorable to
the party opposing summary judgment. 	Harris 	v. Beneficial Oklahoma, Inc. (In re
Harris), 209 B.R. 990, 995 (10 th Cir. BAP 1997).
The party opposing a motion for summary judgment must “set forth specific facts
showing that there is a genuine issue for trial as to those dispositive matters for which it
carries the burden of proof.” Applied Genetics Int'l, Inc. v. First Affiliated Sec., Inc., 912
F.2d 1238, 1241 (10th Cir.1990). 	See also Vitkus v. Beatrice Co., 11 F.3d 1535, 1539
(10th Cir.1993) (“[T]he nonmoving party may not rest on its pleadings but must set forth
specific facts showing that there is a genuine issue for trial as to those dispositive matters
for which it carries the burden of proof”); Otteson v. United States, 622 F.2d 516, 519
(10th Cir.1980) (once a properly supported summary judgment motion is made, the
opposing party must respond with specific facts showing the existence of a genuine
factual issue to be tried); Lazaron v. Lucas (In re Lucas), 386 B.R. 332, 335 (Bankr.
D.N.M. 2008) (same).
To deny a motion for summary judgment, genuine factual issues must exist that
“can be resolved only by a finder of fact because they may reasonably be resolved in
favor of either party.” 	Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). 	A
mere “scintilla” of evidence will not avoid summary judgment. Vitkus, 11 F.3d at 1539.
Rather, there must be sufficient evidence on which the fact finder could reasonably find
for the nonmoving party. 	See Anderson, 477 U.S. at 251; Vitkus, 11 F.3d at 1539.
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“[T]here is no evidence for trial unless there is sufficient evidence favoring the
nonmoving party for a jury to return a verdict for that party. If the evidence is merely
colorable . . . or is not significantly probative . . . summary judgment may be granted.”
Anderson, 477 U.S. at 249. 	Where a rational trier of fact, considering the record as a
whole, could not find for the non-moving party, there is no genuine issue for trial. 	See
Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
III. 	DISCUSSION
A. 	Claim for Violation of 11 U.S.C. § 362. 	Plaintiff’s complaint, filed
November 7, 2012 (the “Complaint”) includes allegations that Defendant violated 11
U.S.C. § 362, including an allegation that Defendant’s actions were willful, intentional
and malicious within the meaning of 11 U.S.C. § 362(k). 	As Defendant points out,
however, the automatic stay did not survive entry of Plaintiff’s discharge and case closing
on November 4, 1998. 	See 11 U.S.C. § 362(c). 	All of the actions complained of
occurred after the case was closed. 	Plaintiff conceded as much in her response to the
Motion, filed July 1, 2013, doc. 17 (the “Response”), p. 3. Since no automatic stay was
in effect when the allegedly wrongful actions took place, there could have been no
violations of the stay. 	The Court therefore will enter judgment in Defendant’s favor on
the § 362 claim.
B. 	Claim for Violation of the Fair Debt Collection Practices Act. The
Complaint also asserts a claim that Defendant’s post-discharge actions violated the
federal Fair Debt Collection Practices Act, 15 U.S.C. § 1692b et seq (the “FDCPA”).
Again, all of the actions complained of took place years after the discharge was entered in
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this case. 	Defendant asks that the claim be dismissed for lack of subject matter
jurisdiction. Memorandum, pp. 3-4. The Court agrees.
The same issue was recently addressed by Judge Jacobvitz in Atwood v. GE
Money Bank, et al. (In re Atwood), 452 B.R. 249 (Bankr. D.N.M. 2011). Judge Jacobvitz
reviewed the case law on the issue and concluded that (i) a FDCPA claim based on post-
discharge conduct is not “core;” (2) the only possible source of jurisdiction is non-core
“related-to” jurisdiction; (3) to determine whether there is “related-to” jurisdiction, the
test is “whether the outcome of the proceeding could conceivably have any effect on the
estate being administered in bankruptcy.” Atwood, 452 B.R. 255-56. Since the FDCPA
claim in Atwood was based entirely on alleged post-discharge activity, the debtor, rather
than her bankruptcy estate, would retain any recovery, and the outcome would have no
effect on the bankruptcy estate. 	Judge Jacobvitz therefore concluded that he lacked
jurisdiction to hear the claim. 	The Atwood decision cites and analyzes the case law on
the issue.
Since Atwood was decided in April, 2011, the case law has continued to
strengthen on the side of holding that bankruptcy courts do not have jurisdiction to hear
FDCPA claims brought by debtors for post-discharge conduct. 	See e.g., In re Garcia,
2013 WL 414177 (Bankr. W.D. Tex. 2013) and In re Wilkinson, 2012 WL 112945, at
*11 (Bankr W.D. Tex. 2012).
The facts in this adversary proceeding related to jurisdiction are identical to those
in Atwood. 	The Court adopts the Atwood view that Plaintiff’s FDCPA claim against
Defendant, based entirely on conduct that took place years after her case was closed and
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her discharge entered, cannot be brought in bankruptcy court because of a lack of subject
matter jurisdiction.
C. 	Claim for Violation of the Discharge Injunction. 	Finally, Plaintiff has
asserted a claim against Defendant for alleged violation of the discharge injunction. In its
Motion, Defendant argues that the undisputed facts show that Defendant’s actions, taken
over about ten years, did not violate the discharge injunction. Plaintiff’s response, which
attaches pages from her deposition transcript, contains instances that might be construed
as efforts to collect discharged debt, including 49 phone calls in 2012. 	The Court finds
that there are genuine issues of material fact whether Defendant violated the discharge
injunction, so it will deny the Motion with respect to that claim.
IV. 	CONCLUSION
The Court will grant Defendant’s Motion on Plaintiff’s claims of alleged
violations of § 362 and the FDCPA, and deny the Motion on Plaintiff’s claim of alleged
violation of the discharge injunction. A separate judgment will be entered.
_________________________________
Hon. David T. Thuma
United States Bankruptcy Judge
Date entered on docket: August 6, 2013.
Copies to:
Michael K. Daniels
P.O. Box 1640
Albuquerque, NM 87103
Christopher A. Holland
P.O. Box 1945
Albuquerque, NM 87103
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