IN RE: ARLENE ROTH, Debtor.
NATIONSTAR MORTGAGE, LLC, Defendant-Appellee. ARLENE ROTH, Plaintiff - Appellant,
from the United States District Court for the Middle District
of Florida D.C. Docket Nos. 2:16-cv-00510-SPC;
WILSON, BRANCH, and ANDERSON, Circuit Judges.
BRANCH, CIRCUIT JUDGE.
Roth appeals the bankruptcy court's denial of her second
motion for sanctions against Nationstar Mortgage, LLC
("Nationstar"). The basis of the motion was
Nationstar's conduct of sending a monthly statement to
Roth, which she alleges sought to collect discharged mortgage
debt in violation of the bankruptcy code's prohibition on
collection of such debt, 11 U.S.C. § 524. She raises two
issues on appeal: (1) whether the bankruptcy court improperly
made factual determinations without the benefit of an
evidentiary hearing; and (2) whether Nationstar's
mortgage statement was an improper attempt to collect a debt
in violation of 11 U.S.C. § 524 and justifies sanctions
against Nationstar. For the following reasons, we affirm the
bankruptcy court's decision.
December 22, 2010, Roth filed a voluntary petition for
bankruptcy under Chapter 13 of the bankruptcy code. On her
bankruptcy schedule, Roth listed a mortgage on non-homestead
property, which is at issue here. On this schedule, she
indicated she would surrender the property. The Chapter 13
plan provided that "[s]ecured creditors, whether or not
dealt with under the Plan, shall retain the liens securing
such claims." On October 3, 2011, the bankruptcy court
entered an order confirming her Chapter 13 bankruptcy plan.
Subsequently, the mortgage at issue here (which was subject
to the Chapter 13 plan) was transferred to Nationstar. She
completed her payments under her Chapter 13 plan, and the
bankruptcy court discharged her debt on June 27, 2014.
Nationstar was notified of the discharge.
discharge order, the bankruptcy court ordered that "the
discharge prohibits any attempt to collect from the debtor a
debt that has been discharged. For example, a creditor is not
permitted to contact a debtor by mail, phone, or otherwise,
to file or continue a lawsuit, to attach wages or other
property, or to take any other action to collect a discharged
debt from the debtor." The order, however, also stated
that "a creditor may have the right to enforce a valid
lien, such as a mortgage or security interest, against the
debtor's property after the bankruptcy, if that lien was
not avoided or eliminated in the bankruptcy case. Also, a
debtor may voluntarily pay any debt that has been
discharged." But even after the discharge of the
mortgage debt, Nationstar did not foreclose on the property;
thus, if Roth voluntarily paid the amount due, she could have
retained the property.
four months after the discharge of Roth's debt,
Nationstar started sending Roth monthly statements related to
her mortgage. The statements included a disclaimer that they
were not debt collection, but also included an amount due,
due date, and instructions on how to send payment back to
Nationstar. Roth had her attorney send a cease and desist
letter, but the statements kept coming. She then filed her
first motion for sanctions in bankruptcy court, alleging that
the statements were improper debt collections in violation of
11 U.S.C. § 524, as well as a separate civil action
claiming violations of the Fair Debt Collection Practices Act
("FDCPA"), 15 U.S.C. § 1692e et seq,
and the Florida Consumer Collection Practices Act (FCCPA).
Arlene Roth v. Nationstar Mortgage LLC, No.
2:15-cv-508-FtM-38CM (M.D. Fla.). The parties resolved the
first sanctions motion and first FDCPA action in a
communication from Nationstar continued in the form of a
November 18, 2015 "Informational Statement," which
again contained an amount due, due date, and instructions for
how to pay Nationstar, as well as a lengthy disclaimer. The
full text of the disclaimer reads as follows:
This statement is sent for informational purposes only and is
not intended as an attempt to collect, assess, or recover a
discharged debt from you, or as a demand for payment from any
individual protected by the United States Bankruptcy Code. If
this account is active or has been discharged in a bankruptcy
proceeding, be advised this communication is for
informational purposes only and is not an attempt to collect
a debt. Please note, however Nationstar reserves the right to
exercise its legal rights, including but not limited to
foreclosure of its lien interest, only against the property
securing the original obligation.
on December 14, 2015, Roth filed a second lawsuit against
Nationstar alleging the Informational Statement was an
improper debt collection under the FDCPA. Roth v.
Nationstar Mortg., LLC, No. 2:15-cv-783-FtM-29MRM, 2016
WL 3570991 at *1 (M.D. Fla. July 1, 2016). Nationstar filed a
motion to dismiss that case, arguing that the Informational
Statement was not sent for debt collection purposes as a
matter of law, but the district court denied the motion after
applying the FDCPA's "least sophisticated
consumer" standard. Id. at *5. On May 30, 2017,
the parties notified the district court that they had reached
a settlement in that case. Notice of Settlement, Roth v.
Nationstar Mortg., LLC, No. 2:15-cv-783-FtM-29MRM (M.D.
Fla. May 30, 2017).
on the same Information Statement, on December 14, 2015-the
same day that she filed her second FDCPA case-Roth filed a
second motion for sanctions in her bankruptcy case, which is
at issue here. Roth alleged that Nationstar's
communication was an attempt to collect a discharged debt in
violation of the discharge order. Nationstar claimed that the
statement was only informational and not a violation of
§ 524. After briefing, the bankruptcy court denied
Roth's motion for sanctions at a hearing, and later
entered an opinion and an order finding that the
"informational statement" was not a debt collection
attempt, and therefore was not in violation of the § 524
injunction. Roth appealed the denial of this second sanctions
motion to the district court, which affirmed the bankruptcy
court's opinion and rejected Roth's request to apply
the FDCPA's "least sophisticated consumer"
standard. In re Roth, 568 B.R. 139, 145 (M.D. Fla.
2017). This appeal followed.
bankruptcy cases, this Court "sits as a second court of
review and thus examines independently the factual and legal
determinations of the bankruptcy court and employs the same
standards of review as the district court." In re
Ocean Warrior, Inc., 835 F.3d 1310, 1315 (11th Cir.
2016) (quoting In re Fisher Island Invs., Inc., 778
F.3d 1172, 1189 (11th Cir. 2015)); see also In re
Gonzalez, 832 F.3d 1251, 1253 (11th Cir. 2016),
cert. denied sub nom. Fla. Dep't of Revenue v.
Gonzalez, 137 S.Ct. 2293 (2017). When the district court
affirms the bankruptcy court, we review the bankruptcy
court's decision, reviewing its "factual findings
for clear error and its legal conclusions de
novo." In re Ocean Warrior, Inc., 835 F.3d
at 1315 (internal ...