United States District Court, N.D. Alabama, Northwestern Division
MEMORANDUM OPINION AND ORDER
LILES
C. BURKE, UNITED STATES DISTRICT JUDGE
The
Plaintiff filed this action on alleging violations under the
Federal Debt Collections Practices Act (FDCPA), 15 U.S.C.
§ 1692, et seq., as a result of defendant's
attempt to collect a debt after plaintiff's voluntary
filing of a petition in bankruptcy under Chapter 13 of the
United States Bankruptcy Code. In re Savage, No.
18-80079-CRJ13, Doc. 1 (Bankr. N.D. Ala. Jan. 10, 2018). The
case currently is before the Court on defendant's motion
to refer case to bankruptcy court (Doc. 15). Upon
consideration of the motion, response and reply, the Court
concludes that defendant's motion (Doc. 15) should be
granted.
I.
BACKGROUND
Plaintiff
filed this action on July 31, 2018 alleging that defendant
violated the FDCPA by sending a collection letter dated June
4, 2018 after the date of her filing of bankruptcy and notice
to creditors, January 12, 2018 (Doc. 1). The original
creditor listed is Aspen Dental, located in Florence, Alabama
and the original debt amount is $1028.00. Defendant, National
Recovery Agency (NRA) is identified as a debt collector and
located in Harrisburg, Pennsylvania (Doc. 1).
II.
STANDARD OF REVIEW
Pursuant
to 28 U.S.C. § 157(a) our Court's General Order of
Reference provides that “all cases under title 11 and
all proceedings arising under title 11 or arising in or
related to a case under title 11 are hereby referred to
Bankruptcy Judges for this District.” See General Order
of Reference (N.D. Ala. July 16, 1984). Our Circuit in
Gypsum held that our analysis of “related
to” should entail the following:
The usual articulation of the test for determining whether a
civil proceeding is related to bankruptcy is whether the
outcome of the proceeding could conceivably have an effect on
the estate being administered in bankruptcy. The proceeding
need not necessarily be against the debtor or against the
debtor's property. An action is related to bankruptcy if
the outcome could alter the debtor's rights, liabilities,
options, or freedom of action (either positively or
negatively) and which in any way impacts upon the handling
and administration of the bankrupt estate.
Matter of Lemco Gypsum, Inc., 910 F.2d 784, 788
(11th Cir. 1990) (internal citations omitted.) See also,
Carter v. Rodgers, 220 F.3d 1249 (11 Cir. 2000).
III.
ANALYSIS AND DISCUSSION
Plaintiff
alleges two counts under the FDCPA, 1) violation of §
1692(e) demanding payment of a debt that is not owed and 2)
violation of § 1692(c) failure to cease communications
and collections due to bankruptcy. Her first count alleges
that the defendant misrepresented the character, amount or
legal status of the debt under the title that the debt is not
owed (Doc. 1). The second count alleges that defendant's
communication violated the bankruptcy court's notice to
cease communication and collection issued pursuant 11 U.S.C.
§ 362. Thus, there is no question that the claims
alleged in plaintiff's complaint specifically arise out
of the bankruptcy proceeding in that the alleged
communication was a direct violation of the automatic stay
issued in the bankruptcy court pursuant to 11 U.S.C. §
362.
Plaintiff
argues that this action is not “related to” her
bankruptcy because this action is exempt from her bankruptcy
proceeding and will have no effect on the bankruptcy estate
(Doc. 21). Defendant counters that the action is not exempt
and that any damages derived from this action will increase
the bankruptcy estate and the amounts available for unsecure
creditors (Docs. 15 & 26). Citing Wiregrass Catering
Serv., LLC v. Cmty. Bank & Tr. of Se. Alabama, No.
1:11CV361-WHA-TFM, 2011 WL 2444676, at *3-4 (M.D. Ala. June
16, 2011). Plaintiff cites numerous cases that involve
Chapter 7 bankruptcies wherein the FDCPA violations were
committed post-discharge to support her argument. In
contrast, plaintiff in the present case filed her bankruptcy
petition under Chapter 13 of the United States Bankruptcy
Code, more specifically a wage earner petition for
reorganization of debts. Generally, under Chapter 13 debts
are not discharged until all payments are made under the plan
which extends a Chapter 13 estate for a period determined by
the plan or until the case is closed, dismissed or converted
to a another chapter. See 11 U.S.C. § 1306. Likewise,
pursuant to § 1306(a)(1) any assets or property received
during the pendency of the case are property of the
bankruptcy estate. See also In re Peed, No.
09-15486, 2014 WL 2987637, at *7 (Bankr. S.D. Ala. July 1,
2014). Plaintiff attached to her complaint a petition in
which she petitioned the bankruptcy court to exempt this
action from her bankruptcy estate, but there is no evidence
presented that the bankruptcy matter is closed, dismissed,
converted or that this action and any damages derived
therefrom are specifically exempt from the bankruptcy estate.
IV.
CONCLUSION
Based
upon the foregoing, the Court finds that the plaintiff has
failed to show that this action is not related to her
bankruptcy action to the degree that it will have no effect
on the outcome of her bankruptcy case. Defendant's motion
to refer case to bankruptcy court (Doc. 15) is due to be
granted and all claims are due to be referred to the United
States Bankruptcy ...