Atwood v. GE Money Bank (In Re Atwood)
452 B.R. 249
Bankr. D.N.M.2011Background
- Debtor Patricia Atwood filed a Chapter 7 bankruptcy; GE Money Bank and related defendants attempted post-petition collection activity against her.
- Plaintiff asserted violations of the automatic stay under 11 U.S.C. § 362, the FDCPA, NM-UPA, and New Mexico common law.
- Defendants moved to dismiss the Second, Third, and Fourth Claims for failure to state a claim.
- Court acknowledged a split in authority on whether the FDCPA is exclusive or complementary to the Bankruptcy Code for post-petition conduct.
- Court held that although FDCPA and state-law claims may be theoretically separable from stay violations, it lacks jurisdiction over those claims because they do not affect the bankruptcy estate.
- As to the stay-violation claim under § 362(k), the Court has core jurisdiction; the other claims are dismissed for lack of jurisdiction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is the FDCPA the exclusive remedy for post-petition conduct? | Atwood argues FDCPA may supplement the Code remedy. | Defendants contend the Code provides exclusive remedies for post-petition acts. | Not exclusive; but jurisdiction over FDCPA claims is lacking |
| Does the bankruptcy court have subject-matter jurisdiction over FDCPA claims? | FDCPA claims arise in/relate to bankruptcy and should be heard. | FDCPA claims are non-core and may be outside bankruptcy jurisdiction. | Lacks jurisdiction; dismissed for lack of subject-matter jurisdiction |
| Does the court have jurisdiction over NM-UPA and New Mexico common law claims? | State-law unfair-debt-collection claims are actionable in bankruptcy court. | Such claims are not core and may not be within bankruptcy jurisdiction. | Lacks jurisdiction; dismissed for lack of subject-matter jurisdiction |
Key Cases Cited
- Walls v. Wells Fargo Bank, N.A., 276 F.3d 502 (9th Cir. 2002) (discusses exclusive remedy under the Bankruptcy Code for discharge injunction violations)
- Randolph v. IMBS, Inc., 368 F.3d 726 (7th Cir. 2004) (FDCPA may coexist with § 362; no implied repeal of FDCPA by the Code)
- Pacor, Inc. v. Higgins, 743 F.2d 984 (3d Cir. 1984) (test for related-to jurisdiction: outcome could affect the estate)
- Gunter v. Columbus Check Cashiers, Inc. (In re Gunter), 334 B.R. 900 (Bankr. S.D. Ohio 2005) (discusses preemption and jurisdictional limits for FDCPA vs. Bankruptcy Code)
- Gardner v. United States (In re Gardner), 913 F.2d 1515 (10th Cir. 1990) (bankruptcy courts have jurisdictional limits; core vs non-core)