520 B.R. 361
Bankr. D. Mass.2014Background
- Debtors Denis and Robin Lemieux filed Chapter 7, listed surrender of their primary residence (72 Hill Road, Groton, MA) and identified ASC/Wells Fargo as mortgage servicer/creditor.
- Debtors received discharge on April 19, 2012; creditor obtained relief from stay in June 2012; debtors vacated the property in July 2012.
- In 2014 the debtors received three categories of post‑discharge mailings from ASC/Wells Fargo addressed to them: monthly mortgage statements, a notice of interest‑rate change, and an extensive hazard‑insurance mailing.
- Debtors allege all mailings violated the § 524(a)(2) discharge injunction (action to collect a discharged debt) and seek contempt, damages, and attorneys’ fees; defendants moved to dismiss under Fed. R. Civ. P. 12(b)(6).
- Defendants argued (1) no private § 524 cause of action (relief belongs in main‑case contempt motion), (2) communications were informational/non‑collection (bankruptcy disclaimers), (3) § 524(j) safe harbor and retained mortgage lien justified communications, and (4) debtors retained post‑surrender property obligations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether debtor may seek § 524 relief in an adversary proceeding | Lemieux: adversary seeking contempt under § 105 is proper | ASC/Wells: relief must be sought by motion in main bankruptcy case | Court: Adversary is permissible; substance over form (Bessette) |
| Whether monthly statements violated § 524(a)(2) | Lemieux: statements are collection attempts | ASC/Wells: statements include multiple bankruptcy disclaimers and are informational | Held: Not a violation — disclaimers + lack of "due" language make statements informational |
| Whether interest‑rate change notice violated § 524(a)(2) | Lemieux: notice is an attempt to collect | ASC/Wells: notice is informational, contains language disclaiming collection against discharged debt | Held: Not a violation — no demand, no amounts, contains disclaimer that it is not seeking personal payment |
| Whether hazard‑insurance mailing violated § 524(a)(2) | Lemieux: mailing demanded action/payment and thus sought to collect discharged debt | ASC/Wells: § 524(j) safe harbor and retained lien justify communications; communications relate to property interests | Held: Plausible § 524(a)(2) violation — insurance mailing’s substantive demands outweigh a minor bankruptcy disclaimer; § 524(j) inapplicable because property was no longer the debtors’ principal residence |
Key Cases Cited
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (complaint must state plausible claim to survive Rule 12(b)(6))
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (plausibility standard for pleadings)
- Rederford v. U.S. Airways, Inc., 589 F.3d 30 (1st Cir.) (pleading standard discussion)
- Canning v. Beneficial Maine, Inc., 706 F.3d 64 (1st Cir.) (scope of discharge and that discharge does not free ongoing property burdens)
- Bessette v. Avco Fin. Servs., Inc., 230 F.3d 439 (1st Cir.) (bankruptcy court may invoke § 105 contempt remedies; adversary vs main‑case form not fatal)
- Pollard v. Law Office of Mandy L. Spaulding, 766 F.3d 98 (1st Cir.) (consumer perspective for evaluating collection‑type communications)