MEMORANDUM AND ORDER
This is аn action commenced by Plaintiff Maria Necci (“Plaintiff’) asserting that Defendant violated the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692. Plaintiff seeks statutory damages pursuant to 15 U.S.C. § 1692k(a)(2)(A) and attorneys’ fees pursuant to 15 U.S.C. § 1692(k)(a)(3). Named as defendant is Universal Fidelity Corporation (“Universal” or “Defendant”), a collection agency.
Presently before the Court is Universal’s motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure or in the alternative, for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reаsons set forth below, the motion to dismiss is granted.
BACKGROUND
I. Factual Background
Plaintiff purchased a car and incurred a debt with Mazda American Credit. That debt became delinquent on February 12, 1998, in the amount of $1004.82. Approximately two years later, Plaintiff filed for bankruptcy relief. Plaintiffs debt was discharged on Junе 12, 2000.
On October 5, 2001, despite the discharge of the debt in bankruptcy, Mazda American Credit placed Plaintiffs account for collection with Universal. Universal sent a letter dated October 19, 2001, seeking to collect upon the discharged debt (the “Collection Letter”). The Collection Letter stated that Universal was authorized by the creditor to make a “special settlement offer” to Plaintiff and that Plaintiff must act within ten days to take advantage of the offer. Shortly after receipt of the Collection Letter, Plaintiff filed thе Complaint in this action alleging various violations of the FDCPA.
II. The Allegations of the Complaint
Plaintiff alleges that the Collection Letter violates the FDCPA in various respects. Specifically, Universal is alleged to have violated the FDCPA by attempting to collect a debt properly scheduled for bankruptcy discharge. This attempted collection is alleged to violate 15 U.S.C. §§ 1692e(2)(A), 1692e(5), and 1692e(10). Section 1692e states in general terms, that it is unlawful for a debt collector to “use *378 any false, deceptive or misleading representation or means in cоnnection with the collection of any debt.” 15 U.S.C. § 1692e. Section 1692e(2)(A) makes it specifically unlawful to falsely represent “the character, amount, or legal status of any debt.” 15 U.S.C. § 1692e(2)(A). Section 1692e(5) makes it unlawful to threaten to “take any action that cannot legally be taken or that is not intended to be taken.” 15 U.S.C. § 1692e(5). Finally, Section 1692e(10) makes it unlawful to use any “false representation or deceptive means to collect or attempt to collect any debt...” 15 U.S.C. § 1692e(10).
III. Universal’s Motions for Dismissal and Summary Judgment
In support of its motion to dismiss, Universal argues that an action pursuant to the FDCPA does not lie, where, as here, the action alleges an effort to collect a debt discharged in bankruptcy. According to Universal, the proper forum for the violation Plaintiff alleges is a motion for contempt addressеd to the bankruptcy court. Such a motion would allege a violation of the bankruptcy stay and seek an order requiring the cessation of all collection efforts. It is argued that allowing a claim under the FDCPA would permit Plaintiff to circumvent the comprehensivе scheme of the bankruptcy code, which statute provides Plaintiff with any and all relief to which she is due.
Universal further argues that even if this Court finds that Plaintiffs complaint is properly filed, the Collection Letter did not violate the FDCPA. It therefore moves for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. In support of this motion, Universal argues that Plaintiff has not satisfied the definition of a “debt” under the FDCPA. Universal further argues that even if a “debt” is held to exist, the Collection Letter contained all of the notices and legal prоvisions required on a first collection notice, and that there is nothing in the Collection Letter that violates the FDCPA.
After outlining the applicable law, the Court will turn to the merits of the motions.
DISCUSSION
I. Standards Applicable to Motions to Dismiss and for Summary Judgment
A motion to dismiss is properly granted only if “it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.”
Conley v. Gibson,
Whеn considering a motion to dismiss for failure to state a claim, the court can consider the facts as set forth in the complaint, documents attached thereto and those incorporated in the complaint by reference.
Stuto v. Fleishman,
Summary judgment is appropriate if there is “no genuine issue as to any material fact” and the moving party is entitled to judgment as a matter of law. Fed. R.Civ.P. 56(c). On motions for summary judgment the court will not try issues of fact, but will determine only if there are issues to be tried.
See Donahue v. Windsor Locks Bd. of Fire Commissioners,
II. Effect of the Bankruptcy Code on Plaintiff’s FDCPA Claim
As noted, Defendant’s primary argument in support of dismissal is the contention that the bankruptcy code precludes litigation of FDCPA claims premised upon violations of the stay set forth in section 524 of the bankruptcy code (“Section 524”). See 11 U.S.C. § 524(a)(2). It is noted that Section 524 operates as an injunction prohibiting creditors from all collection efforts. The remedy prоvided by the bankruptcy code for a violation of the stay is a motion for contempt pursuant to section 105 of the bankruptcy code. (“Section 105”). See 11 U.S.C. § 105(a). Universal further notes that the remedies available in connection with a motion for contempt includе injunctive relief and an award of actual damages. Because the bankruptcy code thus addresses the same issues sought to be addressed by an action commenced pursuant to the FDCPA, it is argued that allowing a FDCPA action to proceed upsets the оrderly procedure set forth in the bankruptcy code.
While courts that have addressed the issue of preclusion of FDCPA claims based upon an alleged violation of the bankruptcy stay are divided, the majority view holds that a FDCPA claim is not available in such cases.
See, e.g., Walls v. Wells Fargo Bank, N.A.,
In
Walls v. Wells Fargo Bank,
In
Walls,
as here, the defendant was alleged to have violated the FDCPA by attempting to collect a discharged debt. Recognizing that Walls’s FDCPA claim was based on an alleged violation of Section 524, the Ninth Circuit reasoned that the bankruptcy code provides its own remedy for a violation of that section. That remedy was noted to be a motion for civil contempt under Section 105.
Walls,
Allowing Walls to proceed with a private right оf action under the FDCPA would, in the view of the Ninth Circuit, circumvent the remedial scheme of the bankruptcy code under which Congress struck a balance between the interests of debtors and creditors by permitting (and limiting) debtors’ remedies for a violation of the discharge injunсtion, to a Section 105 motion for contempt.
Walls,
Similarly, the District Court for the Southern District of Indiana has recently held that a FDCPA claim premised on a debt discharged in bankruptcy is not available.
Wehrheim v. Secrest,
Closer to home, the District Court for the Northern District of New York has also held that a FDCPA claim is not available for cases premised upon an attempt to collect a debt discharged in bankruptcy.
See Diamante v. Solomon & Solomon, P.C.,
In
Diamante,
as in other cases, courts have found support for their holdings in the decision оf the United States Supreme Court in
Kokoszka v. Belford,
The FDCPA is the successor statute to the CCPA. Both statutes share the purpose of protecting consumers form unfair practices. However, as held in Kokoszka^ those who have entered bankruptcy pro *381 ceedings must find all protections and remedies within the confines of bankruptcy law. Whеn dismissing FDCPA claims in rebanee on Kokoszka, it is reasoned that if Congress did not intend that the CCPA interfere with the bankruptcy scheme, it similarly intended no interference by the FDCPA. Thus, Kokoszka provides analogous Supreme Court precedent for holding that an FDCPA claim based upon a violation of Seсtion 524 is barred on the ground that the consumer’s remedies in such situations lie exclusively within the bankruptcy code.
The lone jurisdiction taking a different view is the Northern District of Ilhnois. Two cases decided there have held that a FDCPA claim premised on the collection of a debt discharged in bankruptcy may go forward.
See Peeples v. Blatt,
While no court in the Eastern Distriсt of New York has ruled on the issue in this case, support for the majority view bes in the case of
Arroyo v. Solomon and Solomon, P.C.,
Upon consideration of the different views on the issue presented, the Court agrees with the majority and concludes that the bankruptcy code precludes claims under the FDCPA when those claims are based upon violations of the bankruptcy stay. The Court is persuaded that this is the better view primarily by the fact that Section 524 provides for a specific remedy, contempt, for violations of that provision. To permit Plaintiff to circumvent that provision and its remedy by bringing a claim under the FDCPA would directly contravene the bankruptcy code’s remedial scheme. Furthermore, if the minority view is adopted, the bankruptcy code’s remedy for violations of Section 524 would likely be rendered superfluous. This is because, in most cases, the plaintiff would choose the potentially more lucrative remedies found in the FDCPA. For all these reasons, the Court concludes that the bankruptcy code precludes Plaintiffs FDCPA claim. Accordingly, the Court grants Defendant’s motion to dismiss Plaintiffs FDCPA claim.
CONCLUSION
For the foregoing reasons, Defendant’s motion to dismiss is granted. The Clerk *382 of the Court is directed to terminate the motion and to close this case.
SO ORDERED