Boyajian v. Associates Financial Services Co. of Rhode Island (In re Johnson)

13 B.R. 263 | D.R.I. | 1981

ORDER DENYING DEFENDANT’S MOTION TO DISMISS

ARTHUR N. VOTOLATO, Jr., Bankruptcy Judge.

Heard on the Defendant’s motion to dismiss the Trustee’s complaint which alleges violations of the Consumer Credit Protection Act, 15 U.S.C. §§ 1601 et seq. (Truth in Lending Act) and Regulation Z, 12 C.F.R. §§ 226.1 et seq. The Defendant argues that Bankruptcy Code § 1302(b)(3), 11 U.S.C. § 1302(b)(3), limits the Trustee’s authority to advise and assist the Debtors in performance of the repayment plan to other than legal matters, and that the maintenance of the present action by the Trustee is unauthorized.

The Defendant’s reliance on § 1302(b)(3) is totally misplaced. The Trustee in this case is not providing the Debtors with advice on legal matters, nor is he representing the Debtors, but rather, in accordance with his legal duty to creditors, is pursuing a cause of action, title to which vested in the Trustee pursuant to Article IV of the Debtors’ Plan for Repayment, and Code § 1322(b)(9). Burroughs v. Local Acceptance Co. (In re Dickson), 432 F.Supp. 752 (W.D.N.C.1977); Boyajian v. Associates Financial Services of Rhode Island, AP No. 810012, (D.R.I. August 11, 1981). See also, Flournoy v. Trust Co. of Columbus (In re Weaver), 632 F.2d 461 (5th Cir.1980) and Bankruptcy Rule 13-607.