Christine Baker (Admin)
Post Number: 43
|Posted on Monday, August 19, 2002 - 03:43 am: ||
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DONNA MARIE WALLS, on behalf of
herself and all others similarly
WELLS FARGO BANK, N.A.,
This is one of those cases I don't get. Walls thought that Wells Fargo was violating the discharge order when she stopped making payments a few months after the Ch. 7 discharge and Wells Fargo subsequently forclosed.
Did Walls really think she didn't owe on her mortgage anymore and the house was hers to keep? Maybe I'm missing something?
She SHOULD have gotten her accounting, we she didn't get that is beyond me.
Courts decide to let lenders foreclose WITHOUT an accounting?
To me the interesting excerpts are:
" Congress certainly knows how to create a private right
of action when it wants to; for sure it knew how to create a
private right of action when it amended §§ 362 and 524 in
1984. Both sections were enacted on November 6, 1978, and
neither explicitly provided for a private right of action. Each
had generally been held enforceable only through an action
for contempt. In the 1984 amendments, Congress added sub-section
(h) to § 362, expressly conferring on debtors the right
to sue for damages for a willful violation of the automatic
Well, that's good.
"4 Section 1692f of the FDCPA provides:
A debt collector may not use unfair or unconscionable means to
collect or attempt to collect any debt. Without limiting the gen-eral
application of the foregoing, the following conduct is a viola-tion
of this section:
(1) The collection of any amount (including any interest, fee,
charge, or expense incidental to the principal obligation) unless
such amount is expressly authorized by the agreement creating
the debt or permitted by law.
15 U.S.C. § 1692f.
There is no escaping that Walls's FDCPA claim is
based on an alleged violation of § 524. As the district court
noted, this necessarily entails bankruptcy-laden determina-tions.
Were her payments "voluntary" under§ 524(f)? Was
she required to enter into a reaffirmation agreement pursuant
to § 524(c)? How much of a free ride did her"ride through"
under Parker afford? The Bankruptcy Code provides its own
remedy for violating § 524, civil contempt under § 105. To
permit a simultaneous claim under the FDCPA would allow
through the back door what Walls cannot accomplish through
the front door -- a private right of action. This would circum-vent
the remedial scheme of the Code under which Congress
struck a balance between the interests of debtors and creditors
by permitting (and limiting) debtors' remedies for violating
the discharge injunction to contempt. "[A] mere browse
through the complex, detailed, and comprehensive provisions
of the lengthy Bankruptcy Code . . . demonstrates Congress's
intent to create a whole system under federal control which is
designed to bring together and adjust all of the rights and
duties of creditors and embarrassed debtors alike. " MSR
Exploration, 74 F.3d at 914 (state law malicious prosecution
claim based on bankruptcy filings preempted). Nothing in
either Act persuades us that Congress intended to allow debt-ors
to bypass the Code's remedial scheme when it enacted the
FDCPA. While the FDCPA's purpose is to avoid bankruptcy,
if bankruptcy nevertheless occurs, the debtor's protection and
remedy remain under the Bankruptcy Code. See Kokoszka v.
Belford, 417 U.S. 642, 651 (1974).
Because Walls's remedy for violation of § 524 no mat-ter
how cast lies in the Bankruptcy Code, her simultaneous
FDCPA claim is precluded.5"
"5 In light of this disposition, we need not reach Wells Fargo's alternative
argument that the FDCPA does not apply because it is not a "debt collec-tor"
within the meaning of § 1692a(6)."
That makes sense to me.
To the extent that Walls appeals the district court's dis-missal
of her claims for declaratory and injunctive relief, an
accounting, and attorneys fees, we decline to consider it because she failed to brief these issues."
The district court DISMISSED the request for the accounting?
I'm beginning to understand why Wells Fargo and most creditors refuse to provide accounting.