535 B.R. 110
Bankr. S.D. Tex.2015Background
- Trevinos filed Chapter 13 in 2010 and moved to challenge various mortgage-related actions in adversary; plan paid HSBC arrears but not real estate taxes under plan.
- HSBC filed extensive post-petition tax payments and later 3002.1 notices seeking reimbursement; trustee and debtors disputed documentation and timing.
- Mortgage was transferred from HSBC to U.S. Bank Trust and Caliber in 2013, triggering trustee payments under the plan.
- Trevinos asserted multiple claims: FDCPA, TDCA, abuse of process, claim objections, breach of contract, and negligence related to 3002.1 notices and tax payments.
- Bankruptcy court sua sponte and by motion dismissed several counts while leaving others for trial; questions remained about preemption and remedies under the Bankruptcy Code.
- Court analyzed jurisdiction and Rule 12(b)(6) standards to determine which state and federal claims could proceed or be dismissed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Holder in due course status | Trevinos allege movants acquired mortgage with rights of HDC. | Movants contend they were not holders in due course because the loan was overdue when acquired. | Movants are not holders in due course. |
| Validity of 3002.1(c) notices and related claims under FDCPA/TDCA | Trevinos claim 3002.1(c) notice sought improper recovery and violates FDCPA/TDCA. | HSBC/others argue notices were proper; some disputes arise from refunds and plan treatment. | TDCA aspects tied to 3002.1(c) are preempted by the Bankruptcy Code; however, some FDCPA issues may proceed depending on the theory; the court allows certain 3002.1(c) related FDCPA claims to proceed while dismissing others. |
| FDCPA preemption by Bankruptcy Code | FDCPA claims can coexist with Bankruptcy Code remedies for false proofs of claim. | Bankruptcy Code preempts FDCPA where direct conflict exists and the Code provides remedies. | Bankruptcy Code and FDCPA can coexist; not preempted in general, but preemption applies to field-related TDCA claims arising from 3002.1(c) notices. |
| Negligence/ negligent misrepresentation and economic loss | Trevinos plead negligent misrepresentation and related damages due to false 3002.1 notices. | HSBC owed no duty or duty was contractual; economic loss rule may bar recovery. | Trevinos state a negligent misrepresentation claim distinct from contract; economic loss doctrine does not bar it. |
| Breach of contract viability | HSBC/U.S. Bank breached contract by demanding non-contractual fees and accepting estate payments. | Breach claim vague about provisions and debt status; Trevinos were in default. | Breach of contract claim survives as to materiality issues; not dismissible at pleading stage. |
Key Cases Cited
- In re Bass, 171 F.3d 1016 (5th Cir. 1999) (related to adverse effects of bankruptcy actions and related remedies)
- Randolph v. IMBS, Inc., 368 F.3d 726 (7th Cir. 2004) (coexistence of federal remedies when two statutes address same subject)
- Simon v. FIA Card Serv., N.A., 732 F.3d 259 (3d Cir. 2013) (FDCPA claims may coexist with bankruptcy remedies absent explicit conflicts)